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Change in Waqf Management

Administrator Should Be Notified Duly

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06th-Jul-2019       
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(From previous issue)
19. The one and only core ground taken by the writ petitioner is that the inquiry officer (respondent No.4) without notifying the petitioner conducted the alleged inquiry promptly and on the basis of the said report the respondent No.2 passed the impugned order dated 2-8-2012 which is a clear violation of the principle of natural justice.
20. On a keen perusal of the record it appears that the respondent No. 4 duly conducted the investigation and submitted its report dated 28-7-2012 to the respondent No. l. Moreover, inquiry was carried out upon notifying the parties including the writ petitioner and also upon observing all formalities. Based on the aforesaid inquiry report and considering the submissions made by the parties on 25-7-2012 at the office of the Waqfs Administrator and examining the relevant documents, the respondent No.2 appointed the respondent No.3 as mutawalli. Therefore, the allegation of not affording any opportunity of being heard has no legs 'to stand upon.
21. It is necessary to quote the pertinent portion of the report dated 28-7-2012 which has been concluded as under;
”আপনার অফিসের স্বারক নং ওঃপ্রঃ/চটঃ (দঃ)/৩০ তাং ২৩-৭-২০১২ইং পত্রের নির্দেশক্রমে পূর্বে অবগত করাইয়া গত ২৪-৭-২০১২ইং তারিখে সরেজমিনে উপ¯ি'ত হইয়া তদন্ত কাজ করি । উল্লেখ্য যে, তদন্ত কালে দুইজন দরখাস্তকারীর একজনও উপ¯ি'ত ছিলেন না । ওয়াকফ এস্টেটের বাড়ীতে বসবাসকারীর লোকজন উপ¯ি'ত ছিলেন। তারা জানান দরখাস্তকারী দুইজন ঢাকায় আছেন এবং বর্তমান অভিভাবক মোতাওয়াল্লী বাংলাদেশে নাই । তদন্ত করার পর দিন দরখাস্তকারী দুইজনই নিম্নে স্বাক্ষরকারীর অফিসে উপ¯ি'ত হন এবং নিজ নিজ বক্তব্য দেন এবং নিজ নিজ দরখাস্তের স্বপক্ষে যুক্তি ও আইনগত সমর্থন দেখানোর চেষ্টা করেন।”
Ó22. On a plain' reading of the aforesaid portion of the report it transpires that the' inquiry was carried out by not only notifying the parties including the writ petitioner and also upon observing all formalities. So the allegation of not affording any opportunity to the petitioner of being heard is not sustainable at all.
23. For implication and legal position of the referential order dated 2-8-2012, it is necessary to quote the pertinent portion of the
Amir Abdullah Khan vs Muhammad Attaullah Khan reported in PLD 1990 SC 972 wherein the Hon'ble Supreme Court of Pakistan held as follows:
"17. Contents or part of the contents of another document may be incorporated by reference, and in such cases the other document, so far as it is incorporated, is read with the document under consideration."
24. Since the impugned order dated 2-8-2012 was passed by making reference to and based on the inquiry report dated 28-7-2012, therefore, the said inquiry report should be read together with the impugned order dated 2-8-2012 as a referential order to understand the reason for appointment of the respondent No.3 as mutawalli.
25. It is important to understand the intention of the Wakif. In other words, the waqf-deed should be carried out in its totality and the waqf deed is the primary document for the procedure to be followed in the appointment of mutawalli. Therefore, it is necessary to quote the Clause 1 and 2 of the Waqf-deed dated 13-7-1976, which runs thus:-
"(1) I appoint myself the first trusty for mutawalli of this work during the time of my natural life and waqf shall all alone belong as the waqf state Shukur Uddin Ahmed son of late Amir Hossain of 59 Abdus Sattar Road, Rahmatgonj, Chittagong aged about 73 years by cash Sunni Muslim and by profession an Advocate Judge Court Chittagong."
Clause (2) after my death or retirement, my son Md Humayun Morshed shall be the second mutawalli of the waqf and if necessary, he will have the right to appoint of Naib Mutwalli for the management of waqf properties and for carrying on the administrative duties of the Mutwalli for him and his behalf"
 26. On a plain reading of the aforesaid clause 1 and 2 of the Waqf Deed it is crystal clear that after the natural death of the Waqif mutawalli, the respondent No. 3 is the designated mutawalli of the Waqf Estate.
27. This is to be noted that after the death of Waqif mutawalli, the present respondent No. 3 Humayun Morshed was appointed mutawalli on 4-1-1982, while he had been working abroad. Moreover, the Waqfs Administrator by his order dated 5-7-1994 appointed a Naib mutawalli to assist the Respondent No. 3 in administering the affairs of the Waqf Estate. This position was known to all including the present petitioner and the same was duly accepted by all the beneficiaries at that time. The respondent No.3 had continued in his office as mutawalli for long 11 years till 1993.
28. The respondent No.3 has been residing in Bangladesh thus, he is neither incapable nor absent nor unwilling to hold the office of mutawalli and, as such, there is no impediment in the present case. Thus, Section 43 of the Waqfs Ordinance does not have any manner of application in the present case.
29. In the light of the above facts and circumstances, we find no substances in this writ petition. All the allegations made by the petitioner in its petition are amorphous, fallacious and absolutely based on erroneous notion. Accordingly, the Rule is liable to be discharged.
30. In the result, the Rule is discharged without any order as to cost.
(Concluded)

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