Meghalaya High Court
Md. Sulaiman vs . State Of Meghalaya & Ors. on 20 July, 2022
Bench: Sanjib Banerjee, W. Diengdoh
Serial No. 01
Supplementary List HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No. 27/2022
Date of order: 20.07.2022
Md. Sulaiman vs. State of Meghalaya & ors.
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellant : Mr. S. Jindal, Adv.
For the Respondents : Mr. K.P. Bhattacharjee, GA
Mr. K. Khan, Sr. Adv With
Mr. S.A. Shiekh, Adv
Mr. T.T. Diengdoh, Sr. Adv With
Mr. C.C.T. Sangma, Adv
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes/No
in press:
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) The most startling feature of this matter is the aggressive conduct of the Chief Executive Officer of the Waqf Board in the State who appears to be more keen to support the cause of the private respondent than the private respondent himself.
2. Ordinarily, in matters of the present kind when there is a fight between two private parties and the order of an authority is assailed, the authority does not take a stand, even to sustain its order so that the indifference and impartiality of the relevant authority is not called into Page 1 of 7 question. However, the order passed by the CEO of the State Waqf Board has been sought to be aggressively sustained by the CEO himself without the private respondent, the person likely to be affected if the order impugned is annulled, taking as much interest in the matter as the CEO of the Waqf Board.
3. The appeal is directed against a judgment and order of June 17, 2022 by which the appellant's writ petition has been dismissed on the ground that the appellant may not have had the locus standi to question the propriety of an order dated October 12, 2021 passed by the CEO of the Meghalaya State Waqf Board. By the relevant order of October 12, 2021, the CEO appointed Md. Zakaria, the private respondent herein, to be the successor to the joint mutawalliship of the Haji Elahi Baksh Waqf Estate from Haji Kammu Mia's line. The primary ground urged by the appellant-writ petitioner in the petition under Article 226 of the Constitution was that the CEO did not and could not have had the authority to pass the order as the direction contained in this Court's order of September 20, 2021, which is referred to in the CEO's order dated October 12, 2021, required the Waqf Board - and not its CEO - to pass the relevant order.
4. It may do well to notice the order dated September 20, 2021 passed on the private respondent's writ petition. The operative part of the order is found at paragraph 6 thereof:
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"6. The petitioner is directed to remain present before the Chief Executive Officer of the respondent Meghalaya State Wakf Board along with a copy of this order as well as the order dated 28-11- 2019 passed in WP(C) No. 294/2015, on 27-09-2021 at 11 am to enable the respondent to comply with this order."
5. As it is evident from the order itself, the private respondent herein was to merely present himself before the CEO of the Waqf Board but it was for the Waqf Board to comply with the order dated November 28, 2019, not its CEO.
6. The previous order dated November 28, 2019 also contained a direction by which the private respondent's writ petition was disposed of by requiring "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." Thus, there could have been no two opinions regarding the consistent directions issued by this Court for the State Waqf Board to make the appointment.
7. In terms of the Auqaf Act, 1995, the duties and authority of the State Waqf Board are quite distinct from the duties and authority of its CEO. Section 14 of the Act provides for the composition of a Waqf Board, inter alia, for every State. It is submitted on behalf of the State that at present there is no Waqf Board in place in the State, nor is there any Waqf Tribunal.
8. It may do well to notice the circumstances in which the disputes arose pertaining to the office of mutawalli of the relevant waqf estate. Page 3 of 7 The waqfnama executed in November, 1936 provided, in its first clause that a son of a waqif and a son-in-law of the waqif would be the joint mutawallis "during their lifetime." It is necessary to notice the next two clauses from the waqfnama:
"2. On the death of either of the joint matwalis, the survivor shall be the sole matwali for the time being, and shall have power to nominate his successor from the family line of the Settlor. "3. Each successive matwali thereafter shall have the right to nominate his successor from the same source."
9. On a plain reading of the relevant clauses, it is evident that the joint mutwalliship was to be at the inception and for the surviving original joint mutawalli to continue in office as the sole mutawalli upon the death of the other joint mutawalli. Thereupon, the office of the mutawalli would devolve on such successor from the family line of the waqif as chosen by the mutawalli in office. It does not appear, on a plain reading of clauses (2) and (3) of the waqfnama, that joint mutawalliship was contemplated after the initial joint mutawallis died or that the waqif desired that there should be one person from his male line and another person from his female line of descendants who should jointly be mutawallis of the waqf estate. However, a question arose as to whether a descendent from the female line of descendent of the waqif could also be a mutawalli of the relevant waqf estate. Upon the matter reaching the Supreme Court, the following opinion was expressed in an order dated September 26, 2019. Page 4 of 7
"13. ...
In the present case, since Respondent No. 2 (the appellant-writ petitioner herein) 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 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."
10. Thus, upon the order of the Supreme Court of September 26, 2019 being passed and, thus far remaining unchallenged, notwithstanding whatever the waqfnama may provide for, the office of mutawalli in the said waqf estate has now to be joint with one descendant from the descendants of the waqif through his son and another from the descendants of his daughter, the wife of Kammu Mia.
11. Accordingly, it is no longer open to the appellant to question the joint mutawalliship as such issue has attained finality in terms of the order passed by the Supreme Court and the same remaining unchallenged for a considerable period of time. However, as to the appointment of the joint mutawalli, it is for the State Waqf Board to make the appointment as directed by the Supreme Court and by at least two subsequent orders of this Court. While it may happen that the State Waqf Board has not been constituted or is not in place, but merely because the Board is not in Page 5 of 7 existence will not empower the CEO of the Board to assume the authority of the Board without obtaining the previous leave of the Court.
12. At the end of the day it may be only a pyrrhic victory for the appellant herein since the appellant can no longer contest the appointment of a joint mutawalli to administer the waqf estate. However, the appellant will have a right to make a representation pertaining to the selection of the joint mutwalli and such right may be exercised before the Waqf Board in terms of the previous orders.
13. Accordingly, the order impugned dated October 12, 2021 passed by the CEO of the State Waqf Board is set aside. It will be open to the State Waqf Board, whenever constituted, to comply with the directions issued to such Board in accordance with law and upon hearing the appellant herein. However, if the State Waqf Board is not constituted within the next three months, it will be open to the appellant or any other person aspiring to be the joint mutawalli of the waqf estate to apply to this Court under Article 226 of the Constitution for appropriate directions. Since the unauthorised appointment of the joint mutawalli by the CEO's order of October 12, 2021 has been annulled, the appellant has to be put on terms. Till such time that a joint mutawalli is appointed to jointly administer the waqf estate along with the appellant herein, the appellant will not alienate any of the waqf properties or create any third party rights in respect thereof without the express previous leave of this Page 6 of 7 Court. The appellant will be entitled to receive rents from continuing tenants but will have no right to install any new tenant, if any existing tenant is evicted or otherwise vacates any portion of the premises. The appellant will also maintain true and faithful accounts and have the same audited on an annual basis, if not already done.
14. In the light of the above, the judgment and order impugned dated June 17, 2022 stands set aside and the writ petition is allowed to the extent indicated above. There is no doubt that the appellant cannot object to a joint mutawalli being appointed as such issue has been settled by the Supreme Court's order referred to above; but the appellant will still have a say in the appointment which the Board may take into consideration at the time of making the relevant appointment without permitting the appellant herein to use the right to object as to the selection as a ruse to stall or thwart the appointment.
15. WA No. 27 of 2022 succeeds to the extent indicated above. There will, however, be no order as to costs.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
20.07.2022
"Lam DR-PS"
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