P L D 1967 Dacca 179 (PLP)

SATTAR, J.‑The, subject‑matter of challenge in this applica tion under Article 98 of the Constitution is an order purported to have been passed under section 32 of the East Pakistan Waqfs Ordinance by the Administrator of Waqfs removing the petitioner, Nuruzzaman Chowdhury,, from the Mutawalli-ship of the Wakf Estate created by his father Late Abdul Karim Chowdhury. The petitioner's case is that under the terms of the Waqf Deed the Waqif was the first Mutawalli and it was directed that on his death the petitioner, his son, would continue as Mutawalli until his death. Moulvi Abdul Karim Chowdhury, the Waqif, left two sons, the petitioner Nuruzzaman Chowdhury and Naderuzzaman Chowdhury. In paragraph 18 of the Waqf Deed, a list has been given of the beneficiaries of the Waqf in addition to his aforesaid two sons. It ‑is said that since the appointment of the present petitioner as Mutawalli in 1936 one Abbus Sobhan Chowdhury, son of late Abdul Hakim Chowdhury, brother of the Waqif and one of the beneficiaries mentioned in paragraph 18 of the Waqf Deed, has been creating various obstacles in the smooth running of the administration of the Waqf by the petitioner. Under the terms and conditions of the Waqf Deed, tree beneficiaries of the group of Abdus Sobhan Chowdhury are entitled to get 380 aris of paddy per annum and they were all along drawing the same. In or about the early part of 1958 Abdus Sobhan Chowdhury and the other members of his group proposed to the petitioner‑Mutawalli that instead of 380 aris of paddy being given to them they should be put in possession of 13 kanis and 15 gandas of khas land. Since then Abbus Sobhan Chowdhury and others were in exclusive possession of the aforesaid lands and enjoying paddy thereby which was much in excess of 380 aris. On or about the 5th December 1962 Abdus Sobhan Chowdhury, Abdul Hannan Chowdhury, sons of Late Abdul Hakim Chowdhury, and one Jafar Ahmed, son of late Abdus Sabur Chowdhury, submitted three affidavits before the Administrator of Waqfs, East Pakistan, alleging that certain lands of the said Waqf Estate were never allotted to them or given possession of by the said Mutawalli as claimed by him. It was on the basis of the aforesaid affidavits that the Administrator of Waqfs, East Pakistan, by his Memo. No. 452 dated the 7th January 1963, issued a show‑cause notice to the petitioner- Mutawalli asking him to show cause why he should not be removed from Mutawalli-ship for his failure to pay the dues of the aforementioned beneficiaries. The petitioner submitted a reply to the said affidavits which was supported by an affidavit affirmed by him and he denied the allegations made by the aforesaid beneficiaries and affirmed that he had actually given 13 kanls and 15 gandas of khas land of the Waqf Estate in possession of the aforesaid beneficiaries. The Administrator of Waqfs, East Pakistan, on getting the above reply from the petitioner‑Mutawalli, was pleased to fix 13th July 1963, for hearing the matter. Since then the matter was adjourned from time to time and it was ultimately heard on the 25th October 1963, and the Administrator removed the petitioner from the office of the Mutawalli under section 32 of the East Pakistan Waqfs Ordinance. The petitioner has alleged that the order in question has been passed by the Administrator of Waqfs after taking into account various extraneous circumstances and allegations for which the petitioner was not asked to show cause and he did not thus get any opportunity to meet those allegations. An affidavit‑in‑opposition has been filed by respondent No. 2, the Administrator of Waqfs. This affidavit has been affirmed by Mr. Rafiqur Rahman, who is the personal Assistant to the Administrator of Waqfs. In this affidavit on behalf of the Respondent No. 2, it has been asserted that the petitioner's claim that certain lands of Waqf Estate were allotted to Abdus Sobhan Chowdhury and the other two beneficiaries in lieu of 380 aris of paddy annually payable to them is incorrect. It has then been stated that the petitioner's allegation that no show ' cause notice was issued to the petitioner with regard to charges other than the one mentioned in the notice dated the 7th January 1963, is incorrect. The deponent has then stated that Memo. No. 1289 dated the 20th October 1962, was one of such show- cause notices in reply to which this petitioner had submitted his explanation by a letter dated the 23rd October 1962, to the Administrator of waqfs. It has then been stated that another notice was issued as early as the 3rd May 1961, and after the issuance of these notices and after protracted and contested hearing the impugned‑ order was passed. The petitioner has filed an affidavit‑in‑reply to the affidavit of respondent No.

2. In this affidavit the petitioner has stated that the Administrator of waqfs, by his' order dated 25th September 1962, gave certain directions to the petitioner and the petitioner complied with those directions within the stipulated time and the Administrator of waqfs directed those beneficiaries to swear affidavits in support of their statements. So far as the other charges against the petitioner‑Mutawalli were concerned, he was exonerated from them. A further affidavit by respondent No. 2 has been filed and this affidavit has been affirmed by respondent No. 2, Mr. N. I. In this affidavit it has been stated that at no stage of the proceeding the, petitioner was exonerated of the charges other than the charge of non‑payment of the dues to the Respondent No. 3 A0bdul Sobhan Chowdhury has also filed an affidavit‑in‑opposition but on a careful reading of the same we find no new fact apart from what has been stated in the two affidavits of the Administrator, The petitioner in the impugned order has been found guilty of a number of charges such as: (1) He has totally deprived the beneficiaries of their legitimate dues for years together and has entirely appropriated the income of the Waqf Estate to himself to the exclusion of the beneficiaries; (2) He did not get some properties appertaining to the Waqf recorded as Waqf properties but had them mutated in his own name and in the name of his son; (3) He put some properties to auction sale by keeping rents (4) He .had some properties sold in auction and purchased by Government and then took settlement in the name of his brother; (5) He suppressed the real income of the properties and showed much less ; (6) He did 'not deposit 500 aris or 140 maunds of paddy or the price thereof in the Waqf fund, this being the forfeited allowance of some deceased beneficiaries to be credited to Waqf fund in terms of the Waqf Deed; (7) He never submitted any budget and did not maintain any reserve fund; (8) He did not submit accounts regularly and the account3 that he submitted from time to time were not supported by vouchers. There was nothing to show that he made payment to the beneficiaries or the amount that he actually spent on festival each year and for the maintenance of the Mosque and observance of other rites. The accounts do not give any real picture of the administration and are merely an eye‑wash just to dupe the authorities; (9) The Mutawalli is unyielding and stiff‑necked and Mr. A. F. Rahman, C. S. P., a former Commissioner of Waqfs, found him on the 25th September 1961 guilty of serious malpractices such as‑ (i) non‑payment of remuneration to beneficiaries; (ii) recording the Waqf properties in his own name; (iii) not protecting the interests of Waqf; (iv) not including properties to Waqf as per directions in the Waqf Deed. Mr. Hamidul Huq Chowdhury contends that the petitioner was not called upon to meet the above charges except the charge of non‑payment of the dues of the three beneficiaries, namely, Abdus Sobhan Chowdhury, Abdul Hannan Chowdhury and Jafar Ahmed. The proviso to section 32 (1) of the Waqfs Ordinance lays down that no order for removal of a Mutawalli shall be made without giving him an opportunity of being heard. In support of the contention that the only charge which the petitioner was called upon to meet is the charge of non‑payment of the dues of some beneficiaries, learned Advocate has drawn our attention to Memo. No. 452 dated the 7th January 1962 which was sent to the petitioner. This memo. runs as follows :‑ "To Mvi. Nuruzzaman Chowdhury, P. O. & Vill. Haildhar, Dist. Chittagong. Sir, In enclosing herewith 3 copies of the affidavit sworn by (1) Mvi. Md. Abdhs Salam Chowdhury, (2) Mvi. Md. Abdul Hannan Chowdhury, (3) Mvi. Jafar Ahmed Chowdhury which will speak for themselves, I have the honour to request you to show cause by 2‑2‑63 why you should not be removed from the Mutawalli-ship of the above Waqf Estate under section 32 of the East Pakistan Ordinance No. 1 of 1962 for non‑payment of allowances to the beneficiaries. Your obedient servant, Sd. Illegible. for Administrator of Waqfs. E. P. 7‑1‑62." We have already seen that the stand taken by the respondents in their affidavits‑in‑opposition is that previous to 7‑1‑62 the petitioner was served with another notice to show cause in which all the other charges were incorporated. In the file produced before us, it is said by Mr. Israil, the copy of that notice is 'not traceable. A copy, however, 'which was forwarded to respondent No. 3 Abdus Sobhan Chowdhury has been produced by the learned Advocate for that respondent. It runs as follows‑ "You are hereby directed to appear before the Administrator of Waqfs E. P. on 23‑10‑62 at 11 a.m. in the Government House, Chittagong and to show cause why you shall not be re moved from the Mutawalli-ship under section 32 of the Ordinance No. 1 of 1962 as you have failed to carry out the order of the Ex‑Commissioner of Waqfs relating to correction of records‑of rights, payment of arrear allowances of the beneficiaries and also inclusion of other properties which were purchased by the Waqif, amongst other things, failing which the matter will be heard ex parte." Mr. Hamidul Huq has argued that all the charges against the petitioner except the charge of non‑payment to beneficiaries were dropped by the predecessors of respondent No. 2 and that is why the petitioner by the memo. dated the 7th January 1963, was called upon to meet that charge only. To substantiate this argument, learned Advocate has drawn our attention to the order dated the 25th September 1961, (which is Annexure `A' to the supplementary affidavit filed on behalf of respondent No. 2) passed by Mr. A. F. Rahman. The order of Mr. Rahman is in the following terms: "the case was heard twice in presence of both the parties. After the first hearing the Mutawalli prayed for a further hearing as he could not put up all connected documents on the first occasion. So the case was heard on second date in presence of both the parties. The allegations against the Mutawalli mainly are (1) That he has not (sic) recorded many Waqf lands in his personal name and in the personal name of his brother; (2) He has not taken proper steps for protect ing Waqf lands and as a result some lands were sold away in revenue sale; (3) He is not paying the beneficiaries their due share; (4) He has not enrolled properties purchased subsequently from the income of the Waqf land. The Mutawalli contended that in some cases the lands were recorded in his and his brother's personal name through mistake by the Settlement Officer and he is taking steps for correcting the records. As regards allegation No. 2, he states that he has taken all steps to safeguard the interest of the Waqf and produced certified copies of judgment and his petition in this connection. As regards the last point he stated that the lands were actually purchased during the lifetime of the Waqif and he himself recorded them in his personal name, the same is continuing. It has however been proved that the Mutawalli is not paying the beneficiaries their due share. It is therefore ordered that‑ (1) That the Mutawalli must get all records corrected and report compliance within 2 months from today failing which he will be removed from the Mutawalli-ship. (2) He must get all the lands purchased from the income of the Waqf land uptil now and enrol them in this office as Waqf and correct the record‑of‑rights accordingly within 2 months from today. (3) He must clear all arrear dues of the beneficiaries within one month failing which he will be prosecuted. Inform the Mutawalli and the complainants accordingly." The matter then came up for consideration before Mr. Rizvi who was appointed the first Administrator of Waqfs after the promul gation of the Ordinance in question. Mr. Rizvi then on the 23rd October 1962 passed the following order: (1) The Mutawalli showed me the evidence of his filing thirty applications under section 49 of State Acquisition Act for correction of records by R. C. O. who rejected them. Inspector shall take steps to file them before Additional Director, Land Records E. P. Tejgaon, Dacca. An application under section 49 could not be disposed of by R. C. O. He should also endorse the copy of following letter to me. (2) The Mutawalli swears to have allotted land to beneficiaries for temporary occupation and utilisation of usufruct in lieu of allowances. The Mutawalli should take over the possession of such land and pay up the beneficiaries by money order the price of the paddy allowed by Waqf deed as beneficiary allow ance. Since the Mutawalli swears that he has allotted land and the beneficiaries Zafar Ahmed, Abdul Hannan Chowdhury, Abdus Sobhan Chowdhury, Abdul Mannaf Chowdhury and Asna Khatun deny the allotment of land, let them swear an affidavit that plots Nos. 1934, 2671, 1931, 1931/2671, 2735, 991, 1035, 1036, 1106, 1962, if Ichakhali, P. S. Anwara of E. S. Plot No. 1294 of Mauza Halidhar, have not been in their posses sion for cultivation and utilisation of usufruct by 30‑10‑62." After hearing Mr. Israil who appears for the Administrator of Waqfs at length, we are unable to accept his argument that respondent No. 2 could go into the, question of correction of record‑of‑rights and of failure to record some properties as Waqf properties which‑were purchased by the Waqif, which were the charges mentioned in the notice issued on the 20th of October, 1962. It is difficult to see how, notwithstanding the above orders passed by Mr. Rahman and Mr. Rizvi, the predecessors of respon dent No. 2, he could enquire into those allegations without any fresh notice to show cause in regard to them. It cannot be said to be unusual on the part of the petitioner to think, in view of the orders that were passed by Mr. Rahman and Mr. Rizvi, that the charges relating to correction of record‑of‑rights and non -inclusion of some properties as Waqf properties were dropped. It has, therefore, been rightly contended that the petitioner was never called upon by the present Administrator of Waqfs to meet those charges and he did not come prepared for them. Even accepting that the petitioner could have no reason to think so, the findings with regard to these charges have been arrived at without even considering the defence of the petitioner that he took when he was called upon to meet those charges. In answer to the show‑cause notice dated the 20th of October 1962, the petitioner submitted an explanation, a copy of which is Annexure `A' to the first affidavit filed on behalf of respondent No.

2. The impugned order of the Administrator does not indicate that he even considered the defence of the petitioner. The Administrator has relied upon the order of Mr. Rahman to show that the petitioner was found guilty of "serious malpractices, such as (i) Non‑payment of remuneration to beneficiaries (iii Recording of Waqf properties in his own name (iii) Not protect ing the interests of Waqf (iv) Not including properties (left behind by the Waqif) to Waqf as per directions in the deed." The interpretation put upon Mr. Rahman's order, which we have already quoted, is absolutely insupportable. The order, on the other hand, gives a contrary impression. It clearly indicates that the petitioner was directed to do certain things. The subsequent events indicate that as a matter of fact he complied with those directions and that is why Mr. Rizvi later on kept the question of non‑payment to the beneficiaries to be considered. It is thus clear that the impugned order in regard to the charges other than non‑payment to the beneficiaries has been passed denying the petitioner a fair hearing regarding them and without reference to any material which supports them. We shall consider its effect presently. Coming now to the charge of non‑payment to beneficiaries, we find that this was one of the charges in the notice dated 20th October 1962 and is the only charge in the notice dated the 7th January 1963. If the two orders of Mr. Rahman and Mr. Rizvi are read together, it will be seen that while Mr. Rahman found that the beneficiaries were not paid, Mr. Rizvi in view of the defence taken by the petitioner, thought that the matter should be further investigated. He therefore asked the three beneficiaries to file affidavits denying the petitioner's contention that some lands in lieu of paddy were made over to their possession. Such affidavits were filed by the three beneficiaries. The petitioner also filed an affidavit in which he reiterated his assertion that the lands were made over to the possession of the beneficiaries. The Administrator in his order has remarked: "Heard both parties at considerable length and also perused the records between the lines. In terms of Waqf deed the Mutawalli was to pay paddy in kind to each beneficiary. This he has not done. His contention is that he gave the beneficiaries lands for enjoyment of usufructs‑a fact very strongly denied by the beneficiaries. They have gone to the length of swearing affidavits to prove the falsity of this assertion by the Mutawalli. The Mutawalli has no power to make such an agreement in contravention of the provisions of the deed without the prior approval of the Commissioner. So the Mutawalli has not only given any produce to the beneficiaries but taken a line of defence which I am unable to support. He is to pay crop and not make over land in lieu of crop contrary to the provision in the deed. Even if he has made any such arrangement (I am sure he has not) he has definitely by‑passed the Adminis trator and acted against the express directions given in the deed. I am confirmed in my belief that he has totally deprived the beneficiaries of their legitimate dues for years together and that most shamelessly, being a highly educated man a law‑graduate himself. He has entirely appropriated the income to himself to the exclusion of the beneficiaries." The order in question gives no reason in support of the finding accepting the statements of the beneficiaries and rejecting those of the petitioner. Regard being had to the nature of the dispute and the extraordinary powers that the Administrator was called upon to exercise, there cannot be any dispute that the question had to be resolved judiciously. In such circumstances, we are firmly of the view that the determination of the dispute has to be in conformity with judicial procedure. The Administrator under section 32 has been invested with the powers of removal and appointment which were so far enjoyed by the Civil Court. It is not for us to examine the soundness of the policy behind a legislation but it cannot be disputed that while exercising our powers under Article 98 of the Constitution, we have to see whether the powers given to a Tribunal have been exercised in a manner laid down in the law itself and in consonance with the well‑known principles and procedure in regard to the exercise of such powers. It is provided in section 38 of the Ordinance that for the purpose of any enquiry under this Ordinance the Administrator shall have the power to summon and enforce the attendance of persons and witnesses including the parties interested to examine them, to compel the production of documents and to issue commissions for the examination of witnesses in the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908. Subsection (2) of section 32 lays down that a Mutawalli aggrieved by an order under subsection (1) may within three months from the date of communication of such order appeal to the District Judge against such order of removal. Under subsection (3) a revision lies to this Court from every order passed in appeal by the District Judge under subsection (2). These provisions, in our view, apart from what has been said already, indicate that the proceedings in connection with an enquiry under the Ordinance are of civil nature and must be conducted in a manner obtaining in the Civil Court. The very fact that an appeal lies against the order of the Administrator removing a Mutawalli to the District Judge is a pointer to the conclusion that in the enquiry sufficient materials must be brought on record so that the Appellate Tribunal may examine the same and give its decision as to the correctness or otherwise of the order in question. It also follows that in the process of bringing such materials both the contending parties must have fair opportunity of placing their cases in regard to the dispute. We are constrained to observe that these rules have been observed in the present case in their breach and in that view the irresistible conclusion that follows is that the petitioner has` been denied a fair trial though he has been found guilty of serious charges and the order seeks to deprive him of the right which was granted to him by the Waqif himself. While examining the different provisions of the Ordinance, it has struck us that it is difficult to say categorically that action under section 32 Can be taken for non‑payment of dues to beneficiaries. The relevant portion of section .32 runs as follows: "32. (1) Notwithstanding anything contained elsewhere in this Ordinance' or in any other law for the time being in force, the Administrator may, on his own motion or on an application of any person, remove a Mutawalli -- (i) for breach of trust, mis‑management, malfeasance or mis -appropriation ; or (ii) for any act of the Mutawalli causing loss of Waqf property or affecting the proper administration, control or preservation of the Waqf; or (iii) if the Mutawalli has been convicted more than once under section 61 of this Ordinance; or (iv) if the existing Mutawalli is found unsuitable, incompetent negligent or otherwise undesirable: Provided that no such order for removal of a Mutawalli shall be made without giving him an opportunity of being heard." Section 61 clause (h) provides that if a Mutawalli fails to pay the dues of any individual beneficiary of a Waqf payable to him in terms of the Waqf deed, he shall, unless he satisfies the Court that there was reasonable cause for his failure, be punishable with fine which may extend to two thousand rupees and in default with simple imprisonment which may extend to six months. In view of the specific provision in section 61 allowing prosecution of a Mutawalli for non‑payment to beneficiaries and the provision in section 32 that a Mutawalli can be removed if convicted more than once under section 61, it is doubtful whether non‑payment of dues of beneficiaries amounts to any of the acts mentioned in clauses (i), (ii) and (iv) of section 32 (1). Since however this point was not raised at the hearing, and we did not have the benefit of the assis tance from the. Bar, it is not necessary to give a definite finding on the same. Mr. Hamidul Huq has challenged the vires of some of the provisions of the Waqf Ordinance. It is not necessary for the purpose of this case to enter into a discussion of all the provisions of the Ordinance excepting , those of section

32. It has been argued that subsection (4) of section 32 empowers the Adminis trator to appoint a new Mutawalli after an incumbent has been removed and this can be done in total disregard of the directions given by the Waqif. This, it is said, goes counter to fundamental right No. 10 guaranteed by the Constitution. Right No. 10 has been worded thus: "Freedom to profess religion and to manage religious Institution-- Subject to law, public order and morality (a) every citizen has the right to profess, practice and propagate any religion ; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious In view of the decision of the Supreme Court in the case of Jibendra Kishore Acharya. Chodhury and others v. The Province of East Pakistan and another (P I. D 1957 S C (Pak.) 9) it cannot be disputed that Waqf is a religious institution. It therefore follows that if the argument of Mr. Hamidul Huq is correct that the Administrator has been given unqualified powers of appointment of Mutawalli under subsection (4) of section 32, the provision vesting such powers cannot be upheld in view of the above Right. It has however been rightly pointed out by Mr. Israil that in view of section 29 the Administrator has no freedom in the matter of the appointment of Mutawalli. This section lays down that the Administrator, in exercising powers and functions under this Ordinance in respect of any Waqf, shall act in conformity with the directions of the Waqif, the purposes of the Waqf, and any custom or usage relating to Waqf under the Muslim Law. The Administrator, in view of the above, cannot appoint any person of his choice disregarding the directions of the Waqif. We are, therefore, of the opinion that the contention that subsection (4) of section 32 is ultra vires, has no substance. Mr. Israil has raised certain objections to the maintainability of this application. He has firstly drawn our attention to section 102 of the Ordinance which provides that except as otherwise expressly provided in this Ordinance, no decision or order of the Administrator shall be questioned in any suit or other proceeding in any Court. Learned Advocate contends that, in view of the above provisions, an application under Article 98 does not lie against an order of removal of Mutawalli which can be challenged only in appeal before the District Judge and in revision in this Court. We are afraid the argument is wholly misconceived. The power of this Court given by the Constitution cannot be taken away by any legislation, Provincial or Central. The next objection raised is that as the Ordinance itself .has provided a remedy against an order of removal of a Mutawalli an application under Article 98 does not lie. The argument, though plausible, cannot be accepted on close scrutiny. It is provided in subsection (2) of section 32 that a Mutawalli aggrieved by an order under subsection (1) may, within three months from the date of communication of such order, appeal to the District Judge against such order of removal provided that no appeal shall lie against an order under subsection (1) unless the Mutawalli has made over charge of the Waqf to the new Mutawalli appointed under subsection (4). In these circumstances, it has to be considered whether the remedy of appeal provided in "sub section (2) of section 32 of the Ordinance is an adequate remedy within the meaning of Article 98 of the Constitution. In our view, as the remedy of appeal provided in' subsection (2) of section 32 is condition by the fact that the appellant has to make over possession before filing the appeal, it is not an adequate c remedy within the meaning of Article

98. The argument of Mr. Israil that even if the Mutawalli makes over charge he will be entitled to .get back possession is case of success in the appeal is not a consideration for determining whether the remedy provided, in the Ordinance is an adequate one. It is certainly more incon venient than the remedy provided in Article 98 and in that view of the matter at least it is not an adequate remedy. Some argument was advanced by Mr. Hamidul Huq to show that the provisions of the Ordinance would not be applicable with regard to acts committed by the petitioner previous to the date when the Ordinance came into force. In view of what we have already found in this case, we have felt it unnecessary to go into this question in this case. In the result, the rule is made absolute and it is declared that the order passed by the Administrator of Wakfs on the 5th of November 1963, removing the petitioner from Mutawalli-ship of the Waqf Estate created by his father is wholly without jurisdiction and as such of no legal effect. As this is the first case of its kind in this Court after the promulgation of the Ordinance, we feel that the parties should be left to bear their own costs. SIKANDAR ALI, J.‑I agree. S. Q. Rule made absolute.