ABDUL KHAIR Vs. NAZIR HOSSAIN
HIGH COURT OF CALCUTTA
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P.C.MALLICK, J. -
(1.) THIS proceeding relates to a very old wakf. It was created by one Md. Mukim Sarkar by three wakf deeds, the first is of 1843, the second of 1844 and the third of 1846. By these deeds several Calcutta properties and others were made wakf. It is not necessary to give in detail the contents of these wakf deeds. Suffice it to note that it is a public wakf for the benefit of a mosque erected by the wakif and for various objects recognised as religious and charitable by the Mahomedan Law. There has been litigations in the past relating to the wakf estate. One such litigation was started in 1929 being Suit No. 92 of 1929 to set aside a lease granted by the then Mutwalli which was ultimately decreed in 1940 whereby the lease was cancelled. Subsequently two other suits were instituted being Suit No. 1444 of 1942 and Suit No. 1448 of 1944 which were subsequently consolidated and a decree was passed on 31 -8 -1944, whereby this Court framed a scheme for the management of the wakf properties and generally to carry out the purpose of the wakfs. The scheme provided for the appointment of one S. Kadem Hossain as Mutwalli, the acting Mutwalli Nazir Hossain having retired. The Mutwalli was to get a salary of Rs. 60/ - per month but no residence. Future mutwallis were to be appointed by the Judge in Chambers. The Mutwalli was to manage the wakf estate subject to the supervision of two Nazirs. The Nazirs appointed were Moulvi Abdul Khair and Mr. Azizul Islam, Advocate. The scheme provides further: 'A system of business management approved by the Nazirs shall be adopted including a provision for the banking of the reserves and drawing against it only by joint signatures of the Mutwalli and one Nazir and also the banking of the receipts.
The Mutwalli is to retain a sum of not more than Rs. 50/ - for petty expenses'.
There is a note in the Scheme which reads as follows:
'The Gariahat land though valuable is not developed and has to be reduced into actual possession by suit in Alipur. The new Mutwalli will be substituted. The cost of the Alipur Suit may be paid out of capital'.
The Scheme provides for the payment of costs, of the amount of expenditures to be incurred under various categories, allowances to be paid to the wife and son of the outgoing Mutwalli and a scholarship to one Parok Jha. The last Clause in the Scheme reads as follows:
'There is a general liberty to apply and all matters arising out of or relating to the scheme and the administration of the wakf will be dealt with by the Judge in Chambers'.
(2.) THERE are two applications now before me. The first is a summons taken out by Md. Ariff and Yakub Hossain Bham inter alia for removing the present Mutwalli, for appointment of a new Mutwalli and for framing a scheme. This summons is taken out in the two suits of 1942 and 1944 consolidated as aforesaid and in which the decree was passed on 31 -8 -1944. Mr. B.C. Dutt appears in support of this summons and stated that both the present petitioners were parties to the suits above referred to. Mr. Mahsud opposed the application on behalf of the Mutwalli sought to be removed. The Commissioner of Wakfs has also appeared. The summons was not originally served on him but subsequently served pursuant to my orders. The second is a Notice of Motion taken out by Abu Sayeed Md. Khaliquar Rahman and Abdul Khair Mahomed Mohibur Rahman. They describe themselves as 'new plaintiffs' both suing for selves and on behalf of persons interested in the public wakfs created by the three Indentures above referred to. This Notice also is taken out in the two suits of 1942 and 1944 in which a decree was passed framing a scheme. The reliefs claimed inter alia are for the removal of the existing mutwalli and appointment of new mutwalli, for the framing of a scheme and administration of the wakf. Both the applications, it appears, claim substantially the same reliefs. The allegations made in both the applications are substantially the same. It is alleged that the administration of the wakf estate is not carried on in terms of the scheme framed by the decree of this Court. One of the Nazirs appointed named Janab Azizul Islam never acted and/or was prevented from acting as the Nazir and after he left for Pakistan, no step has been taken for having a Nazir appointed. The result is this - -the Mutwalli is administering the wakf estate in his own way without any supervision. So also the Mutwalli has not adopted the method of business management laid down in the scheme. There is no banking account, no maintenance of the reserve, no proper account of the receipts and disbursements. It is alleged that municipal rates and taxes are not being paid regularly. The mosque has no Imam or Moazzin. In consequence, no prayers are held and no light is lit in terms of the wakf deed. The family burial ground is not properly looked after and cleaned. No Moulvi or Kazi employed to read the holy -Koran. In - violation of the directions in the Wakfnama and the decree, the mutwalli has granted a long lease of about 3 bighas of land out of premises No. 17, Gariahat Road except 8 cottahs of graveyard land to one Prodip Bose for 50 years certain with an option of further 25 years on a salami of Rs. 20,000/ - and a rent of Rs. 200/ - per month. It is alleged that the graveyard consists of 15 cottahs and not 8 cottahs as wrongly stated in the petition of the Mutwalli made to the Commissioner of Wakfs. These are roughly the allegations made in the petition and the reliefs claimed are not merely the removal of the Mutwalli and the appointment of a new Mutwalli but also for framing a scheme and for administration. The allegations in support of the prayer for framing a scheme and administration seems to be that the scheme framed is not workable and in the light of present experience a new scheme should be framed.
In the affidavit filed by Mutwalli Khadem Hossain, all allegations of mismanagement and devastavit have been denied. It is alleged that he is doing everything to augment the income of the wakf estate. He is doing everything to give facilities to the worshippers in the mosque. In fact he has purchased a small strip of land adjoining the musjid at 29, Collin Street to provide facilities to the worshippers. It is further alleged that in terms of the decree, he as mutwalli always consulted the Nazirs. The step for the appointment of another Nazir after one of them left for Pakistan was the duty and responsibility of the other Nazir and not that of the Mutwalli under the Scheme. The Nazir who has left for Pakistan has not yet tendered his resignation. It is denied that no bank account was opened. In fact an account has been opened and is still maintained. But as the cost of litigation and other expenses have become very high it became practically futile to operate it normally. It is alleged that accounts are properly kept, taxes are being paid and arrears, if any, with respect to the different properties are very small and attributable to the nonpayment or default on the part of tenants to pay rents regularly. It is stated in the petition that there were great difficulties in getting possession of the Gariahata land under the existing law from Riajuddin and others who are claiming tenancy, In the face of this difficulty, the Mutwalli granted the lease after obtaining the approval and consent of the Commissioner of Wakfs as also of Nazir Abdul Khair both of whom approved of the terms. The other Nazir having left, his approval could not be obtained. The lease is not prohibited by the Wakfnama and, in fact, the lease has been held to be valid even by the High Court. It is alleged that the present application is inspired by the tenants evicted who were all along assisted by one of the petitioners, namely, Md. Ariff. It is further contended that the application is not maintainable, that the petition does not lie either for removal of the Mutwalli or for framing a scheme. Very much disputed questions of fact have been raised which can only be decided in a suit under Section 92 of the Code of Civil Procedure.
(3.) KHADEM Hossain and Nazir Hossain petitioners in the other application who have described themselves as 'new plaintiffs' are not parties to the suit. There is no prayer in the petition for being added as parties. Mr. Mahsud contended that without being a party to the suit, outsiders are not entitled to intervene and ask for any relief in this suit. The liberty reserved in the decree does not entitle any party to make the present application, far less a Party who is not even a party to the suit or decree.;
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