IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9635 of 2009 Md. Arman Hussain Mobarki, son of Md. Umar, Mohalla Khanquah Chowk, Manharan Lal Road, PO Lalbagh, PS Darbhanga Town, district Darbhanga – Petitioner. Vs. 1) The State of Bihar, 2) The Bihar State Sunni Wakf Board through its Chief Executive Officer, Haj Bhawan, 34, Hardinge Road, Patna. 3) The Chairperson, Bihar State Sunni Wakf Board, Haj Bhawan, 34 Hardinge Road, Patna. 4) The Executive Officer, Bihar State Sunni Wakf Board, Haj Bhawan, 34 Hardinge Road, Patna. 5) Md. Zakir Hussain Mobarki, son of Late Anwar Hussain, Mohalla Khanquah Chowk, PS Darbhanga Town, Dist. Darbhanga – Respondents. 4 17.10.2011 Heard learned counsel for the petitioner, counsel for the Wakf Board as well as respondent no.5. The petitioner is aggrieved by order contained in Annexure 4 passed by the Chief Executive Officer informing him that the Chairman of the Bihar State Sunni Wakf Board, Patna by order, dated 3.3.2009 has been pleased to approve the name of respondent no.5 as the Motawalli / Sajjadanashin of Wakf Estate No. 1003, Khanquash Faridia, Darbhanga in place of Late Md. Jamshed Hussain. By the same order the previous order as contained in Annexure 3, dated 24.12.2008 appointing the petitioner as Sajjadanashin / Motawalli has been quashed. Two issues have been raised by the counsel for the petitioner. It is firstly submitted that as per sub-clause (3) of section 64 of the Wakf Act, the petitioner could not have been removed as the Sajjadanashin / Motawalli. Secondly it has been submitted that the Chairman had no power to review his earlier order. Before proceeding with the case I would like to quote the 2 order by which the petitioner was appointed as a Motawalli : “The Chairman, Bihar State Sunni Wakf Board, has been pleased to appoint Hafiz Quari Md. Arman Hussain Mobariki, son of Md. Umar, Mohalla Mhanquah Chowk, Manhar Lal Road, PO Lal Bagh, Darbhanga as Sajjada Nashin and Mutawalli of Wakf Estate No. 1003, Madarsa Masjid and Khanquash Faridia in place of Late Md. Jamshed Hussain, Darbhanga by his order 4/12/08 for a period of one year. He has under taken to enhance the income of the Wakf and pay Rs.5000/- (five thousand) as Wakf fee, and will pay all dues of Wakf fee. The Mutawalli shall be responsible for proper maintenance of Wakf properties and submit budget and Return regularly yearly in time”. It would be apparent from the order aforesaid by which the petitioner was appointed as Sajjadanashin for a period of one year only. It is true that the order removing the petitioner was passed on 8.7.2009 i.e. before the period of one year has elapsed. However, since the period has elapsed there would be no point in interfering with the order, except for certain intervening facts which need to be clarified. The deed by which the Khanquah was created is contained in Annexure-A, the validity of which, has not been challenged by the petitioner. According to the deed creating the Khanquah, there is specific provision for the mode of appointment of Sajjadanashin. It clearly envisages that the son of the late Sajjadanashin should be appointed, if he has the required character and qualification. Apparently this document was not taken into consideration by the Chairman of the Board while appointing the petitioner. Two facts emerges to face of the parties contesting this writ petition. The first fact is that the appointment was made for a period of one year. The period has now expired. Therefore, literally 3 speaking, any order setting aside Annexure 4 would in fact have no effect, as the appointment was for a period of one year. The other aspect is the provisions of sections 27 as well as 64 of the Act. Section 27 envisages that the Board by a special or general order delegate to the Chairperson, any other member, the Secretary or any other officer or servant of the Board or any area committee, such of his powers and duties under this act as it may deem necessary. Once the Board delegates the power to the Chairman, the Chairman would act in accordance with section 64 of the Act. Section 64 lays down certain conditions for removal of Motawalli which are concerned with the character of the person who is appointed as Sajjadanashin or Motawalli and the duties that he has to perform. Once the chairman finds that the person appointed as Motawalli or Sajjadanashin either lacks in personal character or is not performing his duty in accordance with the deed or the purpose for which the Khanquah has been created, then the Chairman has the power to remove the Sajjadanashin / Motawalli so appointed. The removal according to sub clause (3) would be after holding an enquiry into the matter in a prescribed manner and the decision has to be taken by not less than 2/3rd of the members of the Board. In the present case the application of sections 27 and 64 of the Act are not warranted in view of the fact that the appointment was made for a period of one year. Therefore, there is no question of a right accruing beyond the period of one year. The other fact that has to be taken into consideration is the purpose for which the Khanquash or the Wakf was created. While doing so, the Chairman or the Board 4 would have to consider the purpose and the wishes of the person creating Khanquah or the Wakf and act as far as possible in consonance with the deed concerned. Here, in the present case, the deed had to be considered by the Chairman before making a fresh appointment after the death of Late Sajjadanashin. The appointment has to be made in accordance with the deed creating the Khanquah and as such no right to any person would accrue unless he comes within the qualification as laid down by the deed and at the same time has a good moral character and performs the duties imposed on him as Sajjadanashin or Motawalli. Thus, in the opinion of this court, section 64 of the Act would only apply if there is an allegation as mentioned in Sub-clause (1) (a) and (f) or allegations as mentioned in clause (g) of section 67 (1) of the Act. Under the circumstances as mentioned aforesaid this court finds no ground for interfering with the order contained in Annexure 4. This writ petition is dismissed. haque ( Sheema Ali Khan, J .)