MD DAWOOD Vs. STATE

JUDGEMENT

(1.) THIS writ petition is directed against the Order dated 31st july, 1982 since communicated by Memo no. 2645|4 dated 2nd August, 1982 passed by the Commissioner of Wakfs, West bengal in respect of Sahebzadi Fatima begum Wakf Estate (E. C. 4274)appointing the respondent No. 2, Muhammad Ashraf Ali, as the Mutwalli of the said Wakf Estate. The petitioner Md. Dawood Ali has contended that one Sahebzadi Fatima Begum by a registered Wakfnama dated 8th July, 1933 founded a Wakf in respect of premises No. 4, ripon Lane, Calcutta and Touzi Nos. 151, 152 and 56 in Mouzas Arekpur, Serampore and Gohagachi in the district of 24-Parganas. By the aforesaid Wakfnama, the Wakif Fatima Begum constituted herself as the first Mutwalli and it was provided for in the said deed that after her death, Muhammad Yakub' Ali would be Mutwalli and after his death, the eldest son or in the absence of such eldest son whoever amongst the descendants of md. Yakub Ali in the male line would be educated, religious and pious would be appointed as Mutwalli and in the absence of male descendants of the said Md. Yakub Ali, his female descendants who would be educated religious and pious would be appointed Mutwalli. If the said Yakub Ali died issueless then the cousin of the Wakif, namely. Sahebzadi Ahmedi Begum and in her absence, her descendants would be appointed Mutwalli. There was also other provisions of appointing Mutwalli if ahmedi Begum andlor her descendants would also not be available. It has also been provided in the Wakfnama that should the Mutwalli for the time being found guilty of misappropriation of Wakf funds, misfeasance, maladministration, pross misconduct or is found addicted to wine or company of bad women or embraces any religion other than the Hanafi school of Islamism or fails to act in accordance with the terms and conditions laid down in the Wakfnama then the or she shall be removed from the office of Mutwalli and a pious and religious person shall be appointed Mutwalli iin his or her place. The said Wakf estate was enrolled in the office of the Commiissioner of Wakfs, West Bengal under enrolment Case No. 4274. After the death of the first mutwalli Sahebzadi Fatima Begum, Muhammad Yakub Ali succeeded her to the office of Mutwalli and the said Md. Yakub Ali died in or about january, 1975. According to the scheme of succession set out in the Wakfnama, the-petitioner who is the only son of md. Yakub Ali was appointed Mutwalli in the year 1960 because his father Md. Yakub Ali had voluntarily retired from mutwalliship.

(2.) IT is the case of the petitioner that after assuming the office of Mutwalli the petitioner had been managing the wakf properties strictly according to the terms and conditions laid down in the Wakfnama and the petitioner had been paying the Collectorate revenue, Municipal taxes and other incidental charges for the repair and maintenance of the wakf properties. The petitioner had also been spending one third of the gross income from the wakf properties on charities according to the direction laid down in the Wakfnama. The petitioner contends that he is not ruiltyy of misapporpriation of wakf funds misfeasance, maladministration or gross misconduct and he is also not addicted to wine or company of bad women and he has also not embraced any other religion. Accordingly there is no occasion to remove the petitioner from the said office of Mutwalli, the petitioner has also contended that some time in the year 1976, the petitioner entered into an agreement and executed a power of attorney on 1st January, 1977 in favour of messrs. Muhammad Abdul Rahim and wali Muhammad for the purpose of enhancing the income of wakf properties. Subsequently by an Advocate's notice dated 2nd April, 1979 and also by executing deed of revocation on 14th May,1979, the said power of attorney was revoked by the petitioner. The petitioner also contends that during the subsistence of the power of attorney, the petitioner had spent one third of the gross income received from the wakf properties, on charities. According to the terms of the agreement the constituted Attorneys were required to pay Rs. 200| per month to the- petitioner and utilise the balance Rs. 191/-out of the total gross income of Rs. 391/-for paying Collectorate revenue, municipal taxes and for adjusting the amount spent by them on account of addition, construction and repair of the wakf properties by way of development. The petitioner contends that for the said purpose the petitioner had to forego about rs. 60/- per month from his maintenance allowance. The copies of the Agreement, advocate's notice and the Deed of revocation of power of attorney have been annexed to the writ petition being marked Annexure 'b' collectively.

(3.) THE respondent No. 1, namely, the commissioner of Wakfs, by his Memo no. 5010 dated 29th June, 1982 asked the petitioner to show cause within 15th july, 1982, as to why appointment of some other suitable person should not be made under section. 40 of the Bengal wakf Act, 1934. The ground for such appointment as disclosed in the said memo of the Commissioner of Wakfs is that the petitioner had appointed Muhammad Abdur Rahim and Wali Muhammad as his constituted Attorneys. The Respondent No. 2 did not remove the petitioner from the office of Mutwalli and the petitioner contends that as no valid ground for removal was there, no such attempt was made by the commissioner of Wakfs. The petitioner by his letter dated 9th July, 1982 requested the commissioner to extend time by four weeks from 15th July, 1982 to enable the petitioner to show cause, but instead of extending the said time by a purported order dated 31st July, 1982 the respondent No. 1 appointed Md. Ashraf " Ali as the Mutwalli of the Wakf properties for a period of 3 years. The petitioner received the said communication by post on 6th August, 1982 and the copy of the said order of the Commissioner has been annexed to the writ petition being Annexure 'e'.