A H Z HAIDER Vs. COMMISSIONER OF WAKF

JUDGEMENT

(1.) IN this application under Article 226 of the Constitution of India, the petitioner has challenged two orders dated 9th june, 1975 and 27th December, 1975. The order dated 9th June, 1975 was passed by the Commissioner of Wakfs (hereinafter referred to as the said Commissioner), appointing a committee of mutwalis consisting of 5 members; the order dated 27th December, 1975 was also passed by the said Commissioner in terms of the resolution of the Board of wakfs dated 24th December, 1975 reappointing the said committee of mutwalis consisting of 5 members to act as ad-interim committee of mutwalis under section 40 of the Bengal Wakf Act, ' 1934 (hereinafter referred to as the said act) for a period of five years with effect from 10th March, 1976.

(2.) THE case of the petitioner is that he is the mutwali of the Wakf Estate created by his great grand father Hazi mohammed Kabil by a deed of wakf executed on 1st January, 1892. The said deed provides that the eldest male descendant of the executant of the said deed of wakf shall be the mutwali and shall perform all works according to " the terms of the said deed being devoted to religion.

(3.) SOMETIMES in March, 1945, the mother of the petitioner, Lailun Nahar Begum, since , deceased, was appointed as mutwali as there was no male descendant available and the petitioner was a child of 5 years at that point of time. On or about 10th April, 1975, the petitioner's mother, the then mutwali died leaving behind the petitioner. According to the petitioner, he being the eldest male member, automatically became the mutwali of the wakf estate on the death of his mother, the last recorded mutwali. By a letter dated 5th June, 1975, the " petitioner informed the Commissioner that his mother, the last recorded mutwali, had died and he being the eldest son had taken the charge of the wakf estate as mutwali in place and stead of his deceased mother. It was also stated therein that in terms of the wakfnama dated 1st January, 1892, the petitioner was eligible to be substituted as mutwali" to the wakf estate in place and stead of his deceased mother. He accordingly requested the commissioner to substitute his name as mutwali. By a letter dated 25th June, 1975, the Commissioner intimated that the application of the petitioner dated 5th June, 1975 for substitution of name as mutwali was recevied in the office of the Commissioner on 11th June, 1975 and prior to that on 9th June, 1975, a committee of mutwali consisting of 5 members had been appointed to act as mutwali and as such, prayer of the petitioner for substitution of his name as mutwali of the wakf estate could not entertained and was rejected. It is the case of the petitioner that the said order dated 9th June, 1975 as referred to in the order dated 24th june, 1975 was not served upon the petitioner nor the petitioner was informed of the reasons for appointment of a committee of mutwalis when the deed of wakf specifically provided how the vacancy should be filled in.