IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Mozibur Rahman Miah And

Mr. Justice Md. Bashir Ullah

Civil Revision No. 5541 of 2003

                              IN THE MATTER OF:

An application under Section 115(1) of the Code of the Civil Procedure.

And

IN THE MATTER OF:

Md. Golam Rabbani

     ...Respondent No. 4- Petitioner

-Versus- Md. Yasin Ali and others

... Appellant-Opposite parties. None appeared for either party.

Judgment on: 20.08.2024

Md. Bashir Ullah, J

At the instance of the petitioner in E.C. No. 15769, this Rule was issued calling upon the opposite parties to show cause as to why the judgment and order dated 13.10.2003 passed  by  the  learned  Additional  District  Judge,  Second Court, Dinajpur in Miscellaneous Appeal No. 75 of 2000 allowing the appeal and reversing order dated 06.09.2000 passed  in  E.C.  No.  15769,  Bibiran  Nessa  Waqf  Estate, Kaharol, Dinajpur by the Deputy Administrator of Waqf (1) for Bangladesh, removing the opposite party No.1 from the

post  of  Mutawalli  under  section  32(1)  of  the  Waqf Ordinance,  1962  appointing  Upazilla  Nirbahi  Officer, Kaharol, Dinajpur as official Mutawalli under Section 44 of the Waqf Ordinance, 1962 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, this Court also stayed  the  operation  of  the  judgment  and  order  dated 13.10.2003 in Miscellaneous Appeal No. 75 of 2000 passed by  the  learned  Additional  District  Judge,  Second  Court, Dinajpur  for  a  period  of  4(four)  months,  which  was subsequently extended from time to time and it was lastly extended on 29.11.2005 till disposal of the Rule.

Facts relevant for the disposal of the Rule are:

The  Waqf  Administrator,  Bangladesh  appointed  the appellant-opposite party No.1 as Mutawalli for a period of 3(three)  years  with  effect  from  22.11.1994  as  well  as approved a managing committee consisting of 11 members for  the  greater  interest  and  smooth  administration  and management  of  Waqf  Estate  contained  in  E.C.  Case  No. 15769, Bibiran Nessa Waqf Estate.

The opposite party No.1 without complying with the direction given by the Waqf Administrator used the Waqf Estate for his own interest and misappropriated the income of Waqf  Estate  without  showing  accounts  of  income  and expenditures to the managing committee. He failed to hand over the charges and the responsibility of the Waqf Estate to the managing committee violating the decision of the Waqf authority.  Then  notice  was  served  upon  him  on  several occasions for handing over charge of the Waqf Estate to the managing committee but he did not take any step nor he appeared in any meeting called by the managing committee. Thereafter,  the  Union  Parishad  Chairman  sent notices  for three times but the Mutawalli did not receive the notices and attend  the  meeting. For  such  non-cooperation  of opposite party No.1, a meeting of the managing committee was held on 08.01.1995 and in the meeting, it was decided that, since the opposite party No.1 has not provided proper accounts and cooperate the managing committee so he (Mr. Md. Yasin Ali) be removed from the post of Mutawalli. It was further resolved that, the said resolution will be sent to the Waqf Administrator requesting it to appoint an auditor to examine the accounts of the Waqf Estate and to take necessary steps. In view of the above facts and circumstances, the Assistant Secretary  i.e.  the  present  petitioner  and  the  President  of Coatgaon Old Jame Mosque submitted an application to the

Accordingly, the managing committee on 10.01.1995 sent  an  application  along  with  the  resolution  dated 08.01.1995  taken  by  the  managing  committee  of  Bibiran Nessa Waqf Estate to the Waqf Administrator. Upon receipt of the resolution, the Waqf Administrator then appointed an auditor who visited the Waqf Estate and met the members of managing committee, Mutawalli and local people and found prima-facie allegation of misappropriation of money from the  Waqf  Estate  against  the  opposite  party  No.1.  The investigating authority found that, the opposite party No.1 misappropriated money from the Waqf Estate and used the same for his personal interest and he did not perform the religious  activities  and  the  charitable  functions  under  the Waqf  Estate  and  the  condition  of  the  Mosque  has  been decaying and the local ‘Musallis’ could not perform their prayer at the time of raining. The rainwater falls through the roof and the same impairs the environment of prayers. The opposite party No.1 constructed another tin shed mosque a hundred yards away from the original mosque. The local Musallis do not perform prayer in that mosque. The opposite party  No.1  used  the  Waqf  Estate  as  his  personal  Estate infringing the purpose and objects of the Waqf Estate. The auditor of the Waqf Estate then recommended the petitioner as of Mutawalli of the Waqf Estate.

The Waqf Administrator notified the opposite party No.1  to  submit  written  objection  against  the  allegations brought  against  him  by  application  dated  10.01.1995  and accordingly,  the  Mutawalli  opposite  party  No.1  filed  a written  objection  on  20.03.1995.  The  petitioner  examined 2(two)  witnesses  and  opposite  party  No.1  examined  03 witnesses to prove their respective cases.

Upon hearing the parties, the Deputy Administrator of Waqf passed an order on 06.09.2000 removing the Mutawalli i.e. the opposite party No.1 under Section 32(1) of the Waqf Ordinance  1962  and  appointed  Upazilla  Nirbahi  Officer, Kaharol as official Mutawalli of Bibiran Nessa Waqf Estate for a period of 3(three) years under Section 44 of the Waqf Ordinance 1962.

Feeling  aggrieved  by  the  order  dated  06.09.2000 passed by the Deputy Administrator of Waqf for Bangladesh in E.C. No. 15769 the opposite party no. 1 then preferred Miscellaneous Appeal No. 75 of 2000 under Section 32(2) of the  Waqf  Ordinance,  1962  before  the  District  Judge, Dinajpur.

The learned District Judge, Dinajpur transferred the same  to  the  Court  of  Additional  District  Judge,  Second Court, Dinajpur for hearing and disposal of the same. Upon hearing  the  parties,  the  appellate  Court  then  allowed  the appeal vide judgment and order dated 13.10.2003.

Being aggrieved by and dissatisfied with the judgment and order dated 13.10.2003 passed by the learned Additional District  Judge,  Second  Court,  Dinajpur  in  Miscellaneous Appeal No. 75 of 2000, the petitioner preferred the instant Civil Revision under Section 115(1) of the Code of Civil Procedure before this Court and obtained Rule and stay.

The instant revision has been referred to this Court by the Honourable Chief Justice of Bangladesh for disposal, but none  appeared  to  support  or  oppose  the  rule  though  the matter has been appearing in the list for several days with the name of the learned counsels.

It is submitted in the civil revision that the appellate court has committed an error of law resulting in an error in the  decision  occasioning  failure  of  justice  in  entertaining Miscellaneous Appeal No. 75 of 2000 though the opposite party  No.1,  the  outgoing  Mutawalli  has  not  handed  over possession  and  charge  of  the  management  of  the  Waqf property together with cash and all papers relating to it to the succeeding  Mutawalli  under  Section  32(4)  of  the  Waqf Ordinance, 1962 and as such the impugned judgment and order passed by the appellate Court below is liable to be set aside.

It is further submitted that, the appellate Court has committed  an  error  of  law  resulting  in  an  error  in  the decision occasioning failure of justice in not perusing and considering the evidence of PWs and DWs and the report of the  Waqf  Auditor  wherein  it  has  been  clearly  stated  and established that, the opposite party No.1 has totally failed to administer and look after the Waqf property for the religious purpose. Rather he has constructed another mosque hundred yards away from the original mosque and the allegation of breach  of  trust,  mismanagement,  malfeasance  and misappropriation  of  funds  have  been  established  by  the evidence  of  PWs  and  in  that  view  of  the  matter,  the impugned judgment and order passed by the appellate Court is liable to be set aside.

We have perused the revisional application, judgment and order and other materials on record.

It appears from the record that, the opposite party No. 1, the removed Mutawalli misappropriated funds of the Waqf Estate. The managing committee asked for several times to provide  the  accounts  but  the  removed  Mutawalli  never submitted  the  accounts  of  the  Waqf  Estate.  Moreover,  it appears from the record and evidence from the witnesses that the  removed  Mutawalli  constructed  another  mosque  a hundred yards away from the original mosque of Estate and he collected money from both of the mosque.

The Deputy Waqf Administrator, Bangladesh observed that:

“Ju¡Lg ¢qp¡h fl£rL p−lS¢j−e ac¿¹ L¢lu¡ a¡q¡l A¢gp

pÈ¡lL ew 1007/¢ce¡S, a¡w 04/06/1995 Cw j¤−m ¢hÙ¹¡¢la fТa−hce c¡¢Mm L−lez Eš² fТa−hce fkÑ¡−m¡Qe¡u ®cM¡ k¡u ®k, Ju¡¢Lg¡ LaѪL 8/7/1954 Hhw 13/7/1954 a¡¢l−M pª¢Sa Ju¡Lg c¢mm¡e¤k¡u£ Aœ Ju¡Lg H−øV HL¢V pÇf§ZÑ ¢mõ¡q Ju¡Lgz Cq¡−a L¡q¡l J ®L¡e hÉ¢š² ü¡bÑ S¢sa e¡Cz Ju¡¢Lg¡l fТa¢ùa jp¢Sc dj£Ñu Hhw ®ph¡j§mL L¡−S H−ØV−Vl pjÙ¹ Bu hÉu qC−hz Ju¡Lg c¢m−m ®j¡aJu¡õ£ ¢e−u¡−Nl n−aÑ E−õMÉ Ju¡¢Lg¡ ¢e−S S£¢ha L¡maL ®j¡aJu¡õ£ b¡¢L−hez a¡q¡l jªa¥Él fl ®k jp¢S−cl Cj¡j

b¡¢L−he ®pC ®j¡aJu¡õ£ J ®j¡aJu¡õ£l L¡kÑ¡¢c f¢lQ¡me¡ L¢l−hez”

But the removed Mutawalli was not the imam of that

mosque.

The Deputy Administrator of Waqf further observed that:

“ac−¿¹l pju f¢lm¢ra qCu¡−R ®k, Hm¡L¡l ®m¡LSe Se¡h Cu¡¢pe Bm£l L¡kÑLm¡−f M¤hC ¢rçz AhÙÛ¡ Hje fkÑ¡−u ®f±y¢Ru¡−R ®k, Hm¡L¡l ¢h−l¡¢da¡l L¡l−Z ¢a¢e H−ØV−Vl j§m jp¢Sc qC−a 100 NS c¤−l R¡fs¡l Bl HL¢V jp¢Sc ¢ejÑ¡e L¢lu¡−Rz ®kM¡−e pj¡−Sl ®L¡e ®m¡L e¡j¡S Bc¡u L−l e¡z Eš² jp¢Sc Cu¡¢Re Bm£ Ju¡Lg pÇf¢š ¢eS ü¡−bÑ hÉhq¡−ll E−Ÿ−nÉ ¢ejÑ¡e L¢lu¡−Rz”

PW 1, Golam Rabbani stated that there was a mosque

under  Bibiran  Nessa  Waqf  Estate  and  the  Mutawalli

mismanaged  the  affairs  of  waqf  Estate  and  violated  the

provisions of the Waqf Ordinance. He constructed another

mosque near the mosque of Bibiran Nessa Waqf Estate and

caused the loss of Waqf property. He has not been repairing

the mosque.

PW 2 corroborated the evidence of PW1 and stated

that Mutawalli Yasin Ali misappropriated the funds of the

mosque under the Waqf Estate. He committed a breach of

trust and the mosque was at the brink of destruction because of his negligence. He would not arrange Milad Mehfil or any religious function in the mosque. He failed to look after the Waqf property. It transpires that, the auditor’s report dated 04.06.1995 was well-founded and reasonable.

So, we find that the Deputy Administrator of Waqf passed the order dated 06.11.2000 very legally and correctly. But the appellate Court failed to appreciate that the removed Mutawalli misappropriated huge amount of money collected for  the  Waqf  Estate.  The  appellate  Court  also  failed  to consider the evidence of PWs and the report of the Waqf auditor as well.

Considering the above facts and circumstances we find that, the judgment and order passed by the learned Additional District Judge, Second Court, Dinajpur, reversing the order dated 06.09.2000 passed in E.C. Case No. 15769, Bibiran Nessa Waqf Estate, Kaharol, Dinajpur, is not sustainable in the eye of law.

So, we find merit and substance in the Rule.

In  the  result,  the  Rule  is  made  absolute,  however without any order as to costs.

The order of stay granted at the time of issuance of the rule stands recalled and vacated.

Let a copy of this Judgment and order along with the Lower  Court  Records  be  communicated  to  the  Court concerned forthwith.

Md. Mozibur Rahman Miah, J.

I agree.

Md. Ariful Islam Khan Bench Officer