Meghalaya High Court
Md. Zakaria vs . State Of Meghalaya & Anr. on 28 November, 2019
Equivalent citations: AIRONLINE 2019 MEG 154
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
1
Serial No. 10
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 294 of 2015
Date of Decision: 28.11.2019
Md. Zakaria Vs. State of Meghalaya & Anr.
Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Appearance:
For the Petitioner/Appellant(s) : Mr. G.S. Massar, Sr. Adv. with
Mr. J.M. Thangkhiew, Adv.
For the Respondent(s) : Dr. N. Mozika, Sr. Adv. with
Mr. M.L. Nongpiur, Adv. for R 2.
None for R 1.
i) Whether approved for reporting in No
Law journals etc.:
ii) Whether approved for publication
in press: No
ORAL
1. This writ petition has been filed by Md. Zakaria assailing the order passed by the Government of Meghalaya, whereby an application filed by him under Section 65 (2) of the Waqf Act, 1995 has been dismissed. The petitioner in that application had prayed for setting aside the order dated 10.08.2014 passed by the Meghalaya State Waqf Board assuming direct management of the said Waqf Estate and further prayed to appoint the petitioner as the Mutawalli of the said Waqf Estate.
2. Learned counsels for the parties submit that this very controversy whether Late Haji Kammu Mia's descendant through female line could not be regarded as direct lineal descendants for being eligible to be appointed as Mutawalli has been set at rest by the Hon'ble Supreme Court.
23. The judgment of this Court dated 28.01.2009 was assailed before the Hon'ble Supreme Court at the instance of brother of the present petitioner in the case of Md. Abrar vs. Meghalaya State Waqf Board. The Hon'ble Supreme Court in the aforesaid judgment has held as under:
"12. .................. Therefore it has to be seen whether in the present case, having regard to the terms of the waqf deed, the waqif intended to exclude his descendants through the female line from mutawalli-ship of the waqf. In the present case, Kammu Mia was the husband of the daughter of the waqif Haji Elahi Baksh. Therefore Kammu Mia's descendants would naturally be Haji Elahi Baksh's descendants through the female line, and the waqif must have been aware of this while drafting the waqf deed. If the waqif had intended to exclude his descendants through the female line from succession to mutawalli-ship, he would have expressly stated that after the death of either the original joint mutawallis, only Md. Shafi's descendants would be eligible to succeed to mutawalli-ship. However, the waqf deed dated 9.11.1936 clearly provides that either of the surviving mutawallis may nominate a successor as he thinks fit and that if mutawalli does not nominate a successor, the senior most member amongst the lineal descendants of either Md. Shafi or Kammu Mia would be competent to hold mutawalli-ship, without any preference given to Md. Shafi's descendants.
Hence it is clear that the waqif not only included the direct descendants of his son but also his descendants through the female line, which includes Kammu Mia's daughter's descendants, as part of his 'family line.' The High Court's finding that the waqif intended that the mutawalli-ship should devolve upon Kammu Mia's descendants only after the waqif's direct lineal descendants are exhausted is patently incorrect in as much as the waqf deed does not contain any such stipulation.
13. However, having regard to the fact that there may be several such descendants in the female line who are vying for mutawalli-ship, we do not wish to make a specific finding in regard to whether the appellant is entitled to the said office. Section 63 of the 1995 Act is useful to refer to at this juncture:
"63. Power to appoint mutawallis in certain cases.-- When there is a vacancy in the office of the mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as mutawalli is disputed the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit."
In the present case, since Respondent No. 2 has shown a disinclination to nominate a successor to the deceased Kammu Mia, as provided for under the terms of the waqf deed, we direct Respondent No. 1 to appoint a competent person from amongst the said Kammu 3 Mia's descendants, as it thinks fit, to succeed to joint mutawalli-ship. This is provided that the said successor shall thereafter have the right to nominate his successor, per Clause 3 of the waqf deed. We also direct that the said successor shall, in the event of the death of Respondent No. 2, nominate a successor from Respondent No. 2's family line, which includes descendants through the female line, so as to avoid any further dispute in this regard.
14. The appeal is allowed in the above terms, and the impugned judgment is set aside."
4. Mr. G.S. Massar, learned Sr. Counsel assisted by Mr. R. Kharsyad, learned counsel for the petitioner, has submitted that he would be satisfied if the writ petition is disposed of with a direction to the Waqf Board to provide opportunity of hearing to the petitioner and also to consider his name along with other descendants of Late Haji Kammu Mia while making appointment of Mutawalli.
5. This prayer is not opposed by Dr. N. Mozika, learned Sr. Counsel assisted by Mr. M.L. Nongpiur, learned counsel, appearing on behalf of respondent No. 2-Waqf Board.
6. The writ petition is therefore disposed of in those terms.
7. Ordered accordingly.
(Mohammad Rafiq) Chief Justice Meghalaya 28.11.2019 "D. Nary, PS"