Patna High Court
Mohd. Abbas @ Hassan Abbas And Anr. vs A.G.M. Trust And Ors. on 1 July, 1989
Equivalent citations: 1990(38)BLJR1229
JUDGMENT N. Pandey, J.
1. All these four appeals were heard together as they arise out of the same judgment and they are being disposed of by this common judgment with the consent of the parties.
2. These four second appeals have been filed at the instance of the defendants, arising out of Title Suit Nos. 127/2 of 1982/84 and Title suit No. 180/3 of 1982/84, filed by the plaintiffs for declaration that Memo No. 694 dated 17-4-1982 issued by Chairman, Bihar State Sunni Waqf Board (hereinafter to be referred as the 'Board') creating a new Managing Committee, is illegal, without jurisdiction and beyond the rights of the Board The Waqf created by the plaintiff No. 2 was only a conditional one and not waqf in perpetuity. The newly committee has no right or authority to manage or deal with any of the property of the plaintiff No. 1 and plaintiff No. 3 and such Committee has no right to interfere with the management and affairs of the College The plaintiffs had also claimed for permanent injunction, restraining the defendants from convening the meeting and taking control over the properties of trust and college. The suits of the plaintiffs were dismissed before the trial court, but the plaintiffs succeeded before the appellate court and the defendants were permanently restrained from interfering with the control and administration of A.G. Trust and L.A. Islamia College. The defendants, being aggrieved by the judgment of appellate court, have preferred these second appeals.
3. Earlier by the judgment and order dated 14-11-1986 a Bench of this Court, after hearing the parties and considering the facts of this case, held that large number of relevant pieces of evidence have not been considered by the lower appellate court, which renders the finding of the fact vulnerable under Section 100 of Code of Civil Procedure. Several observations of the appellate court were found to be contradictory to each other. In the circumstances, the cases were remitted back before the lower appellate court for re-consideration But the plaintiffs filed Civil appeal No. 550-33 of 1987 before the Hon'ble Supreme Court and ultimately by an order dated 27-2-1987, the aforesaid judgment was set aside, holding that it was not open to the High Court to set aside the judgment of the lower appellate court and remand the matter to the lower court for writing a fresh judgment. It has been held that if the findings are vulnerable, it is open to the High Court, in course of exercise of powers under Section 100 of the Code of Civil Procedure, to set aside those findings. If, on the other hand, the additional evidence which the High Court considers appropriate to receive even at the stage of second appeal in accordance with law, is in form of document and does not require any formal proof, the High Court can receive additional evidence itself and proceed to determine the matter in a accordance with law. On remand when these appeals were taken up for hearing, none of the parties expressed any desire to adduce any additional evidence, therefore, the hearing of the case proceeded on the basis of the materials already on record.
4. Before considering the rival submissions made by the learned Counsel appearing on behalf of the parties and discussing the merit of the case, it would be appropriate to mention certain facts of the case.
5. The case of the plaintiffs is that M. N. Ahmad Ghani along with his two sisters, sons, daughters, relations and with few outsiders founded Abdul Ghani Memorial Trust in memory of his late father on 21-8-1971. The trust was created for imparting higher education to the Muslim community in particular. M. N. Ahmad Ghani was appointed Nazim of the Crust with a power of veto in the Governing Body and right to remain Nazim of the Trust till his life time and in the event of his relinquishment, the post of Nazim was to be given to the persons nominated by him or to his successors.
6. Pursuant to the creation of the aforementioned Trust, Z. A. Islamia College was founded and Mr. Ghani became the lifetime Secretary of the Governing Body. The College was recognised by the University and the State of Bihar. Mr. Ghani in his personal capacity gifted certain pieces of lands in favour of the institution, with a condition that in case the College ceases to function, the property would revert backs to Mr, Ghani or hi* heirs. A petition uoderjSection 25 of the Waqf Act, 1954 was filed by Mr. Ghani before the Secretary of the Waqf Board at Patna in his personal capacity, for registration of the Waqf along with the land before the Board, which he had gifted in favour of the College. The registeration was done with a condition that if the College would cease to function, the said property would revert back to Mr. Ghani or his heirs. The Board, thereafter, in the year, 1976 constituted a committee consisting of all members for the management of schedules-I and II properties, but as a matter of fact, the said property remained exclusive property of A, G. M. Trust and Islamia College. The Board again constituted a Committee vide Memo No. 694, dated 17-4-1982 which was without the consent of the plaintiff No. 2. According to the case of the plaintiff No. 1, the Board had no jurisdiction to constitute another Committee without giving proper notice to him or the earlier committee. Against the constitution of the Committee, the plaintiffs moved the High Court in a writ petition, which was not accepted, as alternative remedy was available to them. Thereafter Mr. Ghani sent notice under Section 56 of the Waqf Act to the Board and ultimately the aforesaid suits were filed.
7. The case of the defendants on the common plea of the contesting defendants by filing the written statement is that the suit is not maintainable, the plaintiffs have no cause of action, the suit is barred by limitation, the notice under Section 56 of the Waqf Act is not valid, the suit is hit by principle of res-judicata. According to the defendants, the Trust was created by the general muslim of Siwan and not by the family members of plaintiff No. 2 Mr. Ghani never gave these plots to the college in his personal capacity nor he got the Waqf and its property registered with the Board in his personal capacity. The condition imposed by Mr. Ghani is void and illegal. Mr. Ghani filed a petition on 5-4-1976 with the Waqf Board for registration of the schedules I and II property and the A.G.M. Trust was registered. The Waqf Board constituted a Committee headed by Mr. Jabbar Hussain. The A. G. M. Trust and Z.A. Islamia College are one and have one identity and only one Committee for the management of both was also constituted in the year, 1976. The plaintiffs have already submitted to the jurisdiction of the Board, hence the Board has every right to constitute the new Committee. The Committee in question was validly constituted for the management of the Trust and College property. The newly appointed Committee also passed a resolution against Mr. Ghanilor no cooperation and failure to attend the meeting on 12-5-1982, which was forwarded to the Waqf Board with a request to remove Mr. Ghani from the post of Secretary. Several petition were received by the Board, containing allegations against Mr. Ohani for the mis-management of the College administration and in effect there was no Managing Committee after the death of Jab bar Hussain, hence the Board constituted the Managing Committee afresh.
8. After considering the case of the parties and relevant evidence, the appellate court affirmed the findings of the trial court, that the A. G. M. Trust was created by Mr. Ghani and his family members and it was not created by general Muslims of Siwan. The appellate Court also affirmed the finding of the trial court that the Waqf in question is not a conditional Waqf and it has not been created by Mr. Ghani in his personal capacity ; rather it has been created for the properties of the A. G. M. Trust and the College by Mr. Ghani as Nazim and Secretary. Both the courts also held that the plaintiff No. 2 cannot be allowed to say that he had filed petition before the Waqf Board for registration of the Waqf and properties under Section 25 of the Waqf Act mentioned in schedules-I and II, in his personal capacity. The conditions mentioned in the deed of gift Ext. 5 has to be declared void under the provisions of Transfer of Property Act.
9. The appellate court, while discussing the question and the findings of the trial court as to whether the Board had jurisdiction to appoint the Managing Committee for the management of A. G. M. Trust and Islamia College and whether the appointment of the new Committee through memo No. 694, dated 17-4-1982 by the Board, is illegal and without jurisdiction, held that the Board had no jurisdiction to appoint the new committee, headed by Mr. Abdul Ghafoor for the management and control of the property under waqf and reversed the finding of the trial court. The finding of the trial court that the Waqf Board has got ample power to supervise all the affairs of the Trust and the College and, therefore, the memo No. 694, dated 17-4-1982 is legal and valid, has also been reversed by the lower appellate court.
10. At the time of admission of these second appeals following substantial questions of law were formulated; they are;
(a) Whether the Bihar State Sunni Waqf Board had authority under the law to form the Committee, which is under challenge by the plaintiffs?
(b) Whether the order in regard to formation of the Committee impliedly includes an order of removal of the plaintiffs from the management of the Waqf in question ; and
(c) Whether on the facts and in the circumstances of the case, the suits are maintainable.
11. Mr. Thakur Prasad, Senior Advocate appearing for the appellants prayed that besides the substantial questions of law, framed at the time of admission, there are another questions of law to be decided i.e. whether the suit is barred by limitation, whether the suit is barred by principle of res judicata and waiver. He contended since these are pure questions of law, having been raised before the court below, can be raised at this stage even though not formulated earlier.
12. Mr. S.C. Ghosh learned Counsel appearing on behalf of the plaintiffs, on the other hand, contended that in view of the proviso to Section 100(5) of the Code of Civil Procedure, the Court should refrain from formulating the aforesaid questions, which were not formulated at the time of admission. According to him, no question of limitation, res judicata or estoppels was raised or decided before the courts below. The question of limitation of res judicata, however, has to be pleaded in accordance with the provisions, as laid down under Order VIII, Rule 2 of the Code of Civil Procedure. According to him, this is not a fit case where the court should exercise its jurisdiction in formulating the aforesaid questions. True it is that under the amended Section 100 of the Code of Civil Procedure, the appellant is required to state precisely the substantial question of law in memo of appeal and when the |High Court is satisfied that a substantial question of law is involved, it shall formulate that question. Section 100(5) of the Code of Civil Procedure mandates that appeal shall be heard on the questions, so formulated and the respondents are called upon to show that the case does not evolve such question. It is, therefore, manifest that at the time of hearing, the respondents are noticed only to answer the questions formulated. Mr. Thakur Prasad contended that the discretion of the Court to heat the appeal on any other substantial question of law, although not formulated, is not ousted by the aforesaid provision. The court at the time of bearing of the appeal, can exercise its discretion after recording reasons to hear such questions of law, which were not formulated at the time of admission.
13. Looking to the object of the present amendment of Section 100 of the Code of Civil Procedure and pleadings of the parties. I am of the opinion that this is one of those cases were the new question of law, which the appellants intend to formulate, this Court can exercise its discretion and allow the appellants of formulate these questions.
14. Learned counsel appearing on behalf of the appellants submitted that the plaintiff's suit was not maintainable because the relief's sought for were barred by limitation. He has further submitted that, in fact, the plaintiffs' suit is for declaration that the deed of gift Ext. 5 dated 12-4-1972 as well as the registration of the Waqf under Section 25 of the Act is illegal and void, therefore, any suit for declaration that the aforesaid documents were illegal, invalid and void should have been filed within a period of three years from the date of registration. Apparently instant suits which have been filed in the year, 1982 for the aforesaid relief's cannot be entertained and the courts below should have recorded a finding that the suits were barred by limitation.
15. From the judgment of the lower appellate court, it appears that no point of limitation was ever raised. However, from the judgment of the trial court, it appears that specific issue on the point of limitation was raised; as to whether the suit is barred by law of limitation ? But it appears that the said issue was not pressed. The questions, therefore, arises as to whether such argument can be accepted or noticed in view of the fact that the issue having been framed but not pressed.
16. According to the learned Counsel for the plaintiffs, the appellants cannot be allowed to argue on the point of limitation in as much as there was no that the point of limitation having been raised but not pressed at the averment in the written statement on this fact. He further submits that the point of limitation having been raised, but not pressed at the time of hearing, it is not open to the appellants to raise the same again. As the said issue was not pressed, the appellants did not choose to lead evidence and get the issue decided before the trial court or before the appellate court. Mr. Thakur Prasad in support of his contention relied upon several decisions of the Supreme Court and other High Courts, : : AIR 1925 Patna 594 : 1976 BBCJ 649 : AIR 1940 Lahore 75 : . Mt. Prasad has contended that the objection of the plaintiffs that the plea of limitation as envisaged under Section 18 of the Limitation Act was not raised before the lower Courts or in the ground of appeal before this Court is not at all serious, The question of the applicability of Section 18 of the Limitation Act will be only a question of law and such question can be raised at any stage of the case and also in the final court of appeal. On the basis of the aforesaid decisions, he has also submitted that the objections regarding limitation cannot be waived in law and that even if they are waived, they by the courts themselves. On the other hand, Mr. Ghosh in support of his contention, that in absence of any pleading on the point of limitation, the appellants cannot be allowed to raise the question of limitation has also placed reliance upon a decision as reported in AIR 1954 Supreme Court 165 in which it has been held that a question cannot be allowed to be raised by the defendants at the time of argument, when the plaintiff had no opportunity to adduce evidence upon the question of fact. According to him, in the present case, since there has been no pleading or evidence on the point of limitation, the plaintiffs had no occasion/opportunity to adduce evidence on these questions. Therefore, the appellants should not be allowed to raise the question of limitation. However, on the basis of the aforesaid decisions cited by Mr. Thakur Prasad, there cannot be any difficulty in holding that the point of limitation can be raised even at the appellate stage.
17. But from the facts of the present case, it is clear that the question of limitation does not arise at all. The plain and simple relief of the plaintiffs is for declaration that memo No. 694, dated 17-4-1982 issued by the Chairman, Bihar State Sunni Waqf Board, creating a new Managing Committee, is illegal, without jurisdiction and beyond the rights of the Board as the waqf created by the plaintiffs was only a conditional. The newly appointment Managing Committee headed by defendant No. 4 has no right or authority to manage the affairs of the College or to convene the meeting. The other relief is for permanent injunction against the defendant restraining the new Managing Committee from interfering with the affairs of the College and Trust. There s no prayer of the registration done under Section 25 of the Waqf Act. The order constituting the Managing Committee, which is under challenge is dated 17-4-1982. The suit itself having been filed in the year 1982, the question of limitation does not arise, therefore, submission of Mr. Thakur Prasad that the suit is barred by limitation has no substance.
18. In support of other question of law as to whether the suit in barred by resjudicata, Mr. Prasad contended that the plaintiffs being aggrieved by the order of the Board, constituting new Managing Committee had moved the State Government appeal under Section 43(4-A) of the Waqf Act and the State Government rejected the appeal. The order of the State Government passed under Section 43(4-A) of the amounts to a decree of the Civil Court as per the provision of Section 43 and Sub-section (5) of the Act, therefore, the present suits are hit by the principle of res judicata.
19. For better appreciation of the facts, it would be appropriate to refer to the aforesaid provisions:
43(4-A) A Mutawalli who is aggrieved by an order passed under any of the Clauses (c) to (e) of Sub-section (1) or under Sub-section (2) may, within one month from the date of the receipt by him of the order, appeal against the order to the State Government and the decision of the State Government on such appeal shall be final and shall not be questioned in any court of law.
43(5) Where a Mutawalli has been removed from his office under Sub-section (1) or Sub-section (2)the Board may, by order, direct the Mutawalli to deliver possession of the Waqf property to the Board or any officer thereof duly authorized in this behalf or to any person or committee appointed to act as the Mutawalli of the Waqf property ; and the order of Board shall be deemed to be a decree of a civil Court and shall be executed by the Civil Court as if it had passed the decree.
Mr. Ghosh appearing for the plaintiffs contended that the provisions of Section 43(4-A) and Sub-section (5) of the Act are not attracted in the present case.
Mr. Sada Nand Jha, who also appeared for one of the plaintiffs while supporting the argument of Mr. Ghosh, has contended that Section 43 of the Act deals with the power of the Board for removal of the Mutawalli and the Managing Committee and remedy of such Mutawalli or the Committee against such removal by way of appeal etc. has also been provided thereunder. In the present case, there has been no order by the Board either for removal of the Mutawalli or for supersession of the Managing Committee, the question of appeal does not arise. A representation, which was filed by the plaintiffs, cannot be termed as appeal. Appellants have not been able to point out any order or document to substantiate their argument that order for removal of the Mutswalli and supersession of the Committee was passed by the Board, while exercising its power under Section 43(1) or (2) of the Act.
20. Considering the submissions advanced on behalf of the parties as aforesaid, there cannot be any difficulty in holding that no order for removal of the Mutawalli and the super sessions of the Managing. Committee, rather present case has been passed by the Board, while exercising its power under Section 43 of the Act. The moment it is held that that is no order under Section 43 and Sub-sections (1) and (2) of the Act, the order of the state Government dismissing the appeal/representation, if any, cannot be said to an lower under Section 43 Sub-section (4-A). When it is held that the order of the State Government does not fall within the purview of under Section 43, it cannot be treated as decree of a Civil Court and, therefore cannot be executed. It is further held that no order whatsoever has been passed by the Board for delivery of possession etc. Thus, I am left with no opinion, but to hold that the suits are not barred by principle of res judicata.
21. It was next contended that before filing the present suits, the Plaintiffs had filed, civil writ petition before this Court for quashing the order of waqf Board, constituting the new Managing Committee in the year 1982 and after hearing the parties, the writ petition was dismissed. The plaintiffs thereafter filed the present suits for the same reliefs, which were mentioned in the earlier writ petition and the High Court considering the merit of the case refused to grant any relief. Therefore, the suits which were filed subsequent to the dismissal of the writ petition is also hit by principles of res-judicata.
22.From the judgment of the appellate court, it appears that no such question was raised by the appellants. From the judgment of the trial court, it appears that specific issue as to whether the suit was hit by principle of res judicata, estoppel and acquiescence was raised, but from the finding of the trial court, it appears that the said issue was not of present. However Mr. Prasad contended that these are the questions of law based on the pleading the parties. Therefore, he is entitled in law to raise this question. He has placed reliance in support of his contention on a decision in the case of' Union of India v. Nanak Singh . The facts of the aforesaid case quite different. In the present case, the writ petition was dismissed lime and no finding whatsoever was recorded. But in the aforesaid case on which reliance has been placed, the writ petition was decided on merit. Therefore, the aforesaid decision does not support the contention of Mr. Prasad on the other hand, Mr. Ghosh placed reliance on the decision in the case of Workman of Kochin Port Trusts. The Board of Trustees reported in AIR 1978 Supreme Court 1983. In the aforesaid decision, it has been held that from dismissal of the writ petition in limine it cannot be inferred that all the matters agitated in the writ petition were wither explicitly or implicitly decided. When a writ petition is dismissed at the threshold or after contest without expressing any opinion on the merits of the case, no merit can be deemed to have been necessarily and impliedly decided, therefore, any other remedy of suit or other proceeding will not be barred on the principle of res judicata. Similarly, reliance has been placed on a decision in the case of Ahmedabad Manufacturing v. The Workmen and Anr. . In the aforesaid case also it has been held that if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata. The principle of res judicata does not apply to a case in which the writ petition stands dismissed in limine. In other words, non-speaking order of dismissal cannot operate as res-judicata, In the back ground aforementioned facts, this contention of Mr. Prasad it also fit to be rejected.
23. Coming to the other question Mr. Prasad contended that the plaintiffs having got the trust registered as Waqf and got a committee constituted for the College and its management and having obtained recognition as minority Institution, cannot be allowed to take a plea that the Waqf in question was a conditional Waqf and the same was not valid and legal. Both the Courts have recorded a concurrent finding that the Waqf in question is not a conditional Waqf and it has not been created by the plaintiff No. 2 in his personal capacity; rather it has been created for the properties of the A. G. M. Trust and the College by the plaintiff No. 2 in capacity of a Nazim and Secretary. It was also held that the Waqf is a legal and valid one.
24. The plaintiffs have filed cross-objection challenging that aforesaid finding of the courts below. According to the plaintiffs, the courts below should have recorded a finding that the gift, which is a conditional own, cannot constitute a valid waqf. In any event the courts below should have recorded a finding that the certificate granted by the Waqf Board dated 5-4-1976. Creating wsqf was only in respect of these plots and a committee comprising of all persons was constituted to manage the land and not to manage the Trust and college. It has also been submitted that plaintiff No. 2 had filed an application before the Waqf Board for registration of the land of the College under Section 25 of the Waqf Act in his personal capacity and that application was conditional. It has further been contended that the College and A. G. M. Trust have two different identities and both have separate constitution.
25. It is relevant to mention here that it has been admitted by the plaintiffs that l0 kathas 15 dhurs of land out of plot No. 5071 were purchased on behalf of the Trust and the consideration amount of the same was paid out of the Trust fund. The aforesaid property is admittedly donated plaintiff No. 2 to the College through a gift, Ext. 5. From the petition filed by the plaintiff No. 2 marked Exts. V and V/l, it reveals that he had filed the petition before the Board for registration of the Waqf. In the form of registration, the status of the plaintiff No. 2 has been mentioned as Mutwalli, Nazim. A. G. M. Trust and Secretary, Z.A. Islamia College, Siwan. From Ext. 24, dated 5-4-1976, it appears that the Waqf Board had accepted the petition and issued certificates of registration. There is yet another document Ext, O which also reveals that Md. Ghaui had filed a petition before the Education Minister in which it was mentioned that the Trust is registered in the office of the Waqf Board which Supervises and manages the affairs of the College. The Courts below have recorded a concurrent finding that the beneficiary of the property mentioned in schedules I and II is the College. The condition imposed by Md. Ghani that when the College ceased to function, the gifted property would revert back to him or his heirs, cannot be held to be valid and such condition is void.
26. Considering the facts and circumstances discussed above, it is held that once a waqf property is registered is not revokable. Even if, there is a condition, the dedication part will be valid and other conditions are void and that has to be ignored. It is well settled principle that once a dedication always a dedication. Mr. Prasad has also placed reliance upon the decisions in the case of Syed Md., Salie Labbai v. Md. Hanif and Ors. and in the case of Garib Das and Ors. v. Munshi Abdul Hamid and Ors. . In the aforesaid decisions, it has been held that once a dedication always u dedication, the intention must be shown. Even if, there is no actual delivery of possession, the Waqf is complete and valid and it is not revocable. Simply because the plaintiffs have pleaded that the possession of the properties was not handed over, it cannot be said that the waqf was not complete. A Waqf intervolves is completed even by a mere declaration of endowment by the owner.
27. Mr. Ghosh has submitted that on the basis of the documents marked Exts. 4 and 5, it cannot be said that any valid waqf was created. These documents were not registered. The deed of gift, Ext. 5, is a conditional gift under the Transfer of Property Act. According to him, a waqf cannot be conditional, but a deed of gift can be conditional. He has further submitted that although there has been registration under Section 25 of the Waqf Act, but no notification under Section 5 of the Waqf Act has been made and therefore, the waqf Hoard could not acquire any right over the property in question. He has further submitted that unless there is a publication, the Board cannot acquire right to manage the property. The documents, over which the defendants have relied, do not show any dedication. He has further submitted that under Section 25 of the Waqf Act only a Waqf is registered. According to him, none of the documents marked Exts. 4, 5, 6, 6-A or Ext. V and V/I creates any permanent dedication. In support of his aforesaid contention, Mr. Ghosh placed reliance upon the decisions reported in AIR 1963 Supreme Court 985 : AIR 1982 Karnataka 309: AIR 1964 Madras 18: AIR 1974 Andhra Pradesh 287 and AIR 1975 Patna 48. On the basis of the aforesaid decisions, Mr. Ghosh contended that only such Waqf in which simultaneously with the making provision for family members and the descendants some property dedicated for any purposes, which is recognized as pious, religious or charitable by Muslims, will be covered by the definition of Waqf and to that extent only, the Board will have jurisdiction.
28. Considering the submissions advanced on behalf of the parties, I find myself in agreement with the concurrent finding recorded by the courts below that the waqf in question was legal and valid. The plaintiffs having applied for registration of the waqf under Section 25 of the Waqf Act is stopped from challenging that the waqf was not a valid one. Accordingly, the cross-objection filed by the plaintiffs is rejected.
29. Coming to the last question whether the Waqf Board had the authority in law to form the committee and whether the order formulating a Committee impliedly includes on order for removal of the plaintiffs from the management of the Waqf; the court of appeal below has management of the Waqf; the court of appeal below has held that, the Waqf Board had no power and jurisdiction to appoint a new Managing Committee, headed by Abdul Ghafoor and, therefore, the constitution of the new Managing Committee was illegal and without jurisdiction.
30. Mr. Prasad argued that it was not open to the appellate court to record that the waqf Board had no power and jurisdiction to appoint the new Managing Committee. The plaintiffs having filed an appeal under Section 43 Sub-section (4-A) of the Waqf Act before the State Government, is stopped from filing the suit. The order passed under Section 43 and Sub-section (4-A) amounts to a decree of the Civil Court as per the provision of Section 43 and Sub-section (5). He has also submitted that the writ petition, which was tiled by the plaintiffs before the High Court, challenging the order of the Board, constituting the new Managing Committee has been dismissed and on this account also, the suit filed by the plaintiffs was not fit to be entertained. Mr. Prasad has contended that on both courts as aforesaid, the suit of the plaintiffs is hit by principle of res judicata. However, since I have already recorded a finding earlier that the suit of the plaintiffs is not hit by principle of res judicata, it need not be repeated here again.
31. Mr. Prasad further contended that after the registration of the Waqf, the plaintiffs submitted to the jurisdiction of the Waqf Board and therefore, a Managing Committee for management and control of the A.G.M. Trust and the college was constituted in year 1976, comprising of all persons with plaintiff No. 2 as the Secretary, which would be evident from Ext. 6/A through which the Waqf Board had constituted the said Managing Committee. Md. Ghosh had consented and all the formalities were complete. The constitution of the said Managing Committee was never challenged. Now, therefore, the plaintiffs are stopped from saying that they did not submit to the jurisdiction of the Waqf Board. According to the learned Counsel, when the Waqf Board had already constituted, a Managing committee in the year 1976 and the Waqf in the question has been held to be valid one, the Waqf Board derive ample power under the Waqf Act to supervise the affairs of the Trust and the College and, therefore, the constitution of the new Managing Committee is valid, legal and binding on the plaintiffs.
32. Dr. Sadanand Jha, who has also appeared on behalf of one of the plaintiffs submitted that Managing Committee, which was constituted in the year 1976 was with the consent and approval of the plaintiff. Therefore, there was no question for challenging the constitution of the said Committee. The plaintiff No. 2 in capacity of the Secretary of the College and Trust was appointed Mutawalli of the said Managing Committee, Coming in the constitution of 1982 Committee, the learned Counsel submitted that as no order was passed by the Waqf Board either under Section 43 and Sub-section (i) or Sub-section (2) of the Waqf Act, the constitution of new committee is illegal and not binding upon the plaintiffs. Sub-section (1) of Section 43 deals with the power of the Waqf Board for removal of the Mutawalli under the condition mentioned therein. Sub-section (2) of Section 43 deals with the power of the Waqf Board for super session of the Managing Committee under the conditions mentioned therein. According to Dr. Jha unless there was any decision of the Waqf Board under any of the aforementioned provisions of Section 43 of the Waqf Act, there was no occasion for the Waqf Board to constitute a new Managing Committee. He has further submitted that in absence of any allegation as detailed in Section 43 of the Act, neither a Mutawalli can be removed nor a Managing Committee can be superseded. It is now well settled that where a Committee is appointed by a Board to act as Mutawalli for managing or administrating any waqf property, the Board has no power to appoint a new committee without having recourse to Section 43 or Section 43-A of the Waqf Act and direct the Mutawalli to hand over the entire property to the new Committee, in the instant case, there is nothing on the record to show that the Waqf Board over-took any such decision before appointing the new committee. The learned Counsel appearing on behalf of the Waqf Board could not show any such decision taken by the Waqf Board before appointing a new Committee in question 3. The lower appellate court while reversing the finding of the trial court has also held that admittedly before the appointment of the new Managing Committee, there was a Governing Body of the College and also a committee of the A. G. M. Trust. Section 42 of the Waqf Act deals with the power of the Waqf Board to appoint a Mutawalli where there is a vacancy in the office of the Mutawalli of the waqf and there is no one to be appointed under that terms 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. There is no case of the Waqf Board that Mutawalli, Md. Ghani had been removed from his office. Similarly, the right of Md. Ghani to act as Mutawalli has also not been disputed. It has also been held that the Board had no power and jurisdiction to appoint a new Managing Committee and accordingly, the constitution of the new Managing Committee has been held to be illegal and without jurisdiction.
34. Dr. Jha has placed reliance upon a decision in the oast of Andhtra Pradesh Waqf Board v. Md. Hidyatulla . In the aforesaid case, it has been held that as long as the Mutawalli is effectively working in the office and as long there is no proceedings pending against him, the Board has no power to direct the Mutawatli to hand-over the record to the newly constituted Managing Committee or the Board. In other words, without removing or superseding the Managing Committee, the Mutwtlli cannot be removed- Thus, in absence of any express provision that without removing/superseding a Mutawalli or the Managing Committee, the Waqf Board has got any power to appoint the fresh Managing Committee, I have no option but to hold that in such a situation, the constitution of the new Managing Committee is illegal and without jurisdiction. Reliance has also been placed upon a decision in a case of Mr. Aziza Khatoon and Ors. v. The State of West Bengal and Ors. . In support of the argument of the learned Counsel for the plaintiffs that even if the post of Mutawalli fall vacant, it has to be filled up in accordance with the conditions laid down under the deed or in accordance with the provision has laid down in the Waqf Act. In the aforesaid decision, it has also been held that it is an established principle in law that while making appointment of Muiawalli, wishes of the Waqf has to be carried out. A complete stranger to the family of the Waqf or the last hold of the office of Mutawalli cannot be appointed as Mutawalli.
35. Considering the submissions advanced on behalf of the parties and the findings recorded by the lower appellate court, I am left with no option, but to hold that the appellants have failed to establish that any order was passed by the Waqf Board for removing the Mutawalli or superseding the Managing Committee. According to the legal provision, the Board had no power and jurisdiction to appoint the new Managing Committee for the management and control of the property or of A.G.M. Trust and Z.A. Islamia College, as long Md. Ghani is the Mutawalli and has not been removed from his office in accordance with law. I, therefore, affirm the finding of the lower appellate court memo No. 694, dated 17-4-1982 through which the new Managing Committee headed by Mr. Abdul Ghafoor was appointed, is illegal and without jurisdiction and similarly the Waqf Board has no power to appoint the Managing Committee for the College and Trust.
36. For the reasons stated above, I do not find any merit in these second appeals which are, accordingly dismissed.
37. In the facts and the circumstances of the case, there shall be no order as to costs.
S.N. Jha, J.
38. I agree.