NAZLA ROB Vs. COMMISSIONER OF WAKF WEST BENGAL

JUDGEMENT

(1.) This is an application under the Bengal Wakf Act, 1934. The petitioner one Nazla Rob claims to be in charge as the President of an Administrative Committee appointed in respect of Hazi Belayet Hossain's Estate of Arna. It appears that Hazi Belayet Hossain, in March, 1927 created a Wakf estate which was enrolled in the office of the Commissioner of Wakfs. The said Hazi Belayet Hossain appointed himself to be the first Mutwalli. On his death, his wife Musemmat Badrunessa Bibi was appointed under the deed of Wakf to be the Mutwalli. Thereafter, one Abdul Hoque became the Mutwalli. He is respondent No. 10 in the present application. By an order dated 26th of July, 1962, the Commissioner of Wakfs appointed an Administrative Committee of seven members of which the petitioner was the President. The said appointment was made under Section 27 (2) (in) of the Bengal Wakf Act, 1934 read with Section 29 of the said Act. According to the petitioner the said Administrative Committee functioned very well and gave proper directions for the management of the Wakf estate. It appears, however, that the Mutwalli is the father-in-law of the petitioner, that is to say, the petitioner is the son-in-law of the Mutwalli. The Mutwalli was appointed the Secretary of the said Committee. The petitioner was appointed the treasurer as well as the President of the said Committee. According to the petitioner, the petitioner received on the 24th of April, 1966 the order dated 20th of April, 1966 passed by the Commissioner of Wakfs dissolving the Administrative Committee and appointing a new Committee. It appears that prior thereto there was a sub-committee appointed and the sub-committee made a report, and thereafter the Commissioner dissolved the present Administrative Committee and reconstituted a new Committee. The propriety and the validity of the order of the Commissioner dated 20th of April, 1966 passed by the Commissioner of Wakfs are under challenge in this application under Article 226 of the Constitution. It is the case of the petitioner that prior to the receipt of the notice the petitioner had no knowledge of the constitution about the alleged sub-committee. It is, further the case of the petitioner that the petitioner did not have any opportunity or was given no notice to show cause against the constitution of the sub-committee. Thirdly, it was urged that there was no power to appoint sub-committee as such by the Board or the Commissioner while there was an Administrative Committee. Fourthly, it was urged that the Administrative Committee could not be dissolved in the "manner purported to be done. Fifthly, it was urged that the constitution of a new Committee was illegal and beyond the powers of the Commissioner and the Board. Lastly, it was urged that the Commissioner in dissolving the Administrative Committee was not functioning as a delegate of the Board and as such he had acted in excess of his powers in the facts and circumstances of the case. Appearing for the petitioner learned counsel contended that there was no hearing given to the petitioner. It was contended that the same amounted to violation of the principles of natural justice as well as infringement of the relevant Rules framed under the Bengal Wakf Act and that the said sub-committee was not lawfully constituted and as such could not exercise lawful powers while there was an Administrative Committee. It was urged that the constitution of the sub-committee under the Act by the Commissioner before dispensing with the Administrative . Committee or before appointing a Committee to look into the matter was illegal. It was contended that the new Committee could not be of more than three members but seven members had been appointed. It was then contended that without any allegation of mismanagement, the Administrative Committee could not be dissolved. It was also urged that the sub-committee in making the report never functioned as a Committee.

(2.) It appears from the records as mentioned hereinbefore that the petitioner is the President of a dissolved Administrative Committee. The Committee, according to the petitioner and according to the respondents was appointed by virtue of Section 27, Sub-clause (2) (iii). The said provision provides for constituting committees, where necessary, for the administration of wakfs. Section 29 of the Act provides as follows:--

(3.) It was contended that there was no hearing given to the petitioner and there was violation of the principles of natural justice and also the aforesaid rule. It has been stated in the report of the sub-committee that the notice had been given and the petitioner as well as the mutwalli appeared before the sub-committee. It has been reiterated in the affidavit that notice had been served and on the other hand, it has been controverted on behalf of the petitioner that such a notice had been given or that the petitioner in fact appeared. Where in a case the question whether hearing has been given or not is dependent upon adjudication of such disputed question of fact, the petitioner should ordinarily seek remedy in proceedings other than by an application under Article 226 of the Constitution. Prima facie it appears to me that the allegations made in the report of the sub-committee are correct but even if they are not correct and the petitioner wants to establish to the contrary, he should seek remedy by proceedings other than an application under Article 226 of the Constitution.