IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 14933 of 2005 S.M.Atique Ahsan , son of Late Abrar Hassan, resident of Shah Market, Khalifa Bagh, Police Station Kotwali, District Bhagalpur, at present r/o Mohalla Milki Mohalla, PS Ara Town, District Bhagalpur …… Petitioner Versus 1. The State Of Bihar through Secretary, Minority Welfare, Govt. of Bihar, Patna 2. The Secretary, Law Department, Bihar, Patna 3. The District Magistrate, Bhagalpur 4. The Bihar State Sunni Wakf Board through its Chairman, Haj Bhawan, Patna 5. The Secretary, The Bihar State Sunni Wakf Board, Haj Bhawan, Karanti Marg, Patna ….. Respondents ---------------------------------- 02- 2/12/2011 Heard Mr. Nadim Seraj, learned Advocate for the petitioner, learned Assistant Counsel to Standing Counsel no. 25, and Mr. Rashid Izhar for the Bihar State Sunni Waqf Board (hereinafter referred to as the `Board’). This writ petition has been filed by the petitioner for the following reliefs:- (i) For issuance of writ of certiorari for quashing of the letter no.3142 dated 31.12.2004 issued under the signature of respondent no.5 whereby and whereunder the claim of the petitioner for becoming the mutawalli of Waqf Estate 159, situate at Khalifa Bagh, Shah Market, Bhagalpur, was denied without any cogent reason. (ii) For direction to the respondent Board to appoint the petitioner as mutawalli who is authorized by the Waqf deed of 1872, since the petitioner is a beneficiary of the Waqf Estate created by Late Shah Enayat Hussain Sahib and the Waqf named as “Peer 2 Damariya Sahib Wakf” at Khalifabagh Waqf no.159. (iii) For direction to respondent no.4 and 5 to appoint petitioner as Mutawalli as the petitioner is the legal heir and descendant of Late Benazir Alam and also is qualified in the light of the observation made in the waqf deed executed on 6th February 1872. (iv) For any other relief or reliefs as the petitioner is entitled in the facts and circumstances of the case. The claim of the petitioner is that he had earlier filed CWJC No. 231 of 2004 for being appointed as Mutawalli of Syed Shah Enayat Hussain Waqf Estate, Khalifabagh, Bhagalpur (hereinafter referred to as the `Waqf Estate’), which is a registered waqf bearing no.159 with the Board. CWJC No. 231 of 2004 was disposed off on 30.7.2004 with the direction to take a decision in that regard on the representation of the petitioner, if already not taken, within three months from the date of receipt/production of a copy of the order. From the pleadings it appears that pursuant to the order dated 30.7.2004 (Annexure-1 to the writ petition) the Chairman of the Board by order dated 31.12.2004 has disposed off the representation filed by the petitioner and held that the claim of the writ petitioner to the post of Mutawalli is not tenable. Learned counsel for the petitioner has assailed the order dt. 31.12.2004 basically on the ground that the same has been passed without affording any opportunity to the petitioner to place his case. While rejecting the claim of the petitioner the Chairman of the Board refused to interfere with the management 3 of the waqf properties by the existing Mutawalli, namely, Janab Syed Shah Sharfe Alam. It is also argued by learned counsel for the petitioner that the aforesaid impugned order is illegal and unsustainable as it is not in compliance of the direction of this Court vide order dated 30.7.2004, passed in CWJC No. 231 of 2004, and is also violative of the provisions of the Waqf Act, 1995 as no enquiry was held with respect to the allegations levelled by the petitioner against the existing Mutawalli of the Waqf Estate in question. Learned counsel for the petitioner has produced copy of the order of this Court dated 22.7.1935 (which is being kept on record) being an order passed in Appeal from appellate decree no. 871 of 1932 (Shed Shah Noor Alam & Ors. Vs. Syed Shah Benazir Alam & Ors.). The said decision has been rendered in the case of the present waqf in question in which the controversy related to the class of persons who were entitled to maintenance out of the income of the deed of waqf dated 6.2.1872. The main controversy related to interpretation of the class of beneficiaries and revolved around the word `Nabiragan’. The word has been explained and held to include both the paternal and maternal grand children. But in the context in which the word has been used in the instant deed of waqf it has been held to mean only paternal grand children. In that view of the matter, the case came to be decided holding that only the category of persons born of the male descendants of the dedicator were entitled to share/maintenance out of the income of the said waqf. 4 Learned counsel for the Board on the other hand also relies upon the aforesaid decision of this Court dated. 22.7.1935 and with reference to Annexure-3 of the writ petition, which is the genealogical table beginning from the creator of the deed, submits that the petitioner is the descendant from Syed Shah Benazir Alam, but through his daughter, namely, Shamshun Nihar @ Hasina and, therefore, the petitioner coming from the female descendant of Syed Shah Benazir Alam leading upto Syed Shah Enayat Hussain, was neither entitled nor eligible to claim for becoming Mutawalli of the Waqf Estate in question. It is also claimed on behalf of the Board that inspite of the aforesaid decision, which admittedly has attained finality, the petitioner has been raising frivolous allegations against the Waqf Estate and claiming to be appointed as Mutawalli thereof which has been finally rejected by the Chairman of the Board by order dated 31.12.2004 which is impugned in the present writ petition. He submits that the order impugned is in accordance with law and has been passed after giving full opportunity to the petitioner in compliance of the direction issued in CWJC No. 231 of 2004. Learned counsel for the petitioner, by way of reply, has drawn attention of this Court to various communications from the Board to the petitioner which go to show that time and again the Board had been calling the petitioner fixing date for hearing and the petitioner duly complied with the same. However, it is stated that the final order was passed all of a sudden which was not just and proper. 5 Considering the arguments advanced by learned counsel for the parties and the materials on record, it is quite apparent that the dispute raised by the petitioner in this case is based on essentially the same points which had already been decided by this Court earlier in its judgment/order dated 22.7.1935 passed in Appeal from Appellate Decree No. 871 of 1932, holding that the persons born out of the male descendants are only entitled to maintenance out of the waqf estate and also that the word used in the deed of waqf refers only to paternal grand children. Admittedly the petitioner is tracing his lineage from Shamshun Nihar, great grand-daughter of Shed Shah Enayat Hussain, the original author of the deed of waqf. The petitioner has annexed letters with the writ petition dated 3.9.2004, 22.9.2004, 5.11.2004 and 20.12.2004 (Annexures 9 to 12) which shows that the notices were duly sent by the Board informing the petitioner about the date and time fixed for hearing and the petitioner himself filed representations on 19.10.2004 and 27.10.2004, which is evident from the receipt issued by the Board being Annexure -11/1 to the writ petition, which in effect proves that the petitioner attended and responded to the notices by the Board and only thereafter the impugned order dated 31.12.2004 was passed. It is thus apparent that the Board took all necessary steps before passing the said order and it cannot be validly said that the order was passed without affording any opportunity to the petitioner to place his case and/or violating any provision of law or being against the principles of natural justice. 6 From the impugned order dated 31.12.2004 it is quite apparent that it considered the matter was considered in its true perspective as per the direction of this Court dt. 30.7.2004 in CWJC No.231 of 2004. In the said order the Chairman of the Board was only directed to decide the matter and no direction was given to hold any spot enquiry etc., hence there was no occasion for making such enquiry especially when sufficient material existed to prove the falsity of the petitioner’s claim. It is also the specific stand taken by the learned counsel for the Board that in the present case in fact a spot enquiry was also held as would be apparent from the order dt. 31.12.2004. The Board after considering the materials on record was quite justified in coming to the conclusion that the petitioner does not come under the definition of beneficiary and thus was neither entitled to the office of Mutawalli of the Waqf Estate in question nor to get any benefit out of the usufruct of the waqf properties, and further that it was not just and legal to interfere with the management of the waqf properties by the duly appointed Mutawalli in office. There is another aspect which this Court would like to deal with. At the time of filing of the writ petition, the then Mutawalli, namely, Syed Shah Sharfe Alam had already died and a new Mutawalli in his place had not been appointed and, therefore, he was not impleaded as a respondent. However, it is an admitted position that a new Mutawalli, Syed Shah Hassan Mani, 7 had been appointed of the Waqf Estate in question on 3.2.2006. A copy of the order has also been produced, as contained in memo no.237 dated 4.2.2006, which is being kept on record. It is not expected that after a new Mutawalli taking charge in February 2006 itself the petitioner who is keenly interested in the affairs of the waqf in question and is vigorously contesting the issue would be unaware of such development. But he has chosen not to implead the new Mutawalli in the present proceeding, though in the previous round of litigation in CWJC No. 231 of 2004 the Mutawalli appointed by the Board had been impleaded as respondent no. 6. Thus, it is quite apparent that the petitioner has not approached this Court with clean hands and has suppressed relevant facts and concealed important materials. In the aforesaid facts and circumstances, this Court finds that the claim of the petitioner is absolutely frivolous and misconceived and he is not entitled to any relief claimed by him. Furthermore, the impugned order dated 31.12.2004 of the Chairman of the Board is legal and justified on facts and in law having been passed on the basis of issues already settled by the courts of law. Accordingly this writ petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ( Ahsanuddin Amanullah, J.) . mrl 8