Nasir Abdullah Vs. The State of West Bengal & Ors.
EmailAppeal: Civil Appeal No. 1873 of 1988
Petitioner: Nasir Abdullah
Respondent: The State of West Bengal & Ors.
Apeal: Civil Appeal No. 1873 of 1988
Judges: M. JAGANNADHA RAO & Y.K. SABHARWAL, JJ.
Date of Judgment: Feb 29, 2000
Head Note:
WAKFS
West Bengal Wakf Act, 1934
Mutawalli – Appointment – Grandsons of creator appointed Mutawallis – Two surviving brothers executing a deed of appointment before a Notary in Delhi on 2.4.84 – Meanwhile, Commissioner of Wakfs appointing official Mutawalli – No review sought before Commis-sioner – Instead, writ filed – During enquiry by Commissioner original documents not produced – Executors not appearing – Property found to be managed by stranger through advocate – Same advocate appearing before Commissioner and also replying notices – Later, he admitting that Mutawallis were not residing in Calcut-ta – Addresses not supplied – No control of Mutawallis found on Wakf – Nominated Mutawalli relying upon said deed and claiming rights – During the relevant period both Mutawallis not even appearing in Criminal Court – Information before Auditors that they have gone to Pakistan – Justification of orders of Commis-sioner – If nomination by Mutawallis by deed of appointment was genuine. Held that the deed was highly doubtful. Hence, Commissioner has rightly appointed official Mutawalli. High Court was justified in upholding the orders of Commissioner.
Held:
The meeting dated 30.3.84 which is alleged to have taken place at Delhi and in which it is alleged that a decision was taken to nominate the Appell-ant, the original proceedings were not placed before the Commis-sioner. Similarly the subsequent deed of nomination dated 2.4.84 was also not placed before the Commissioner. The Commissioner had found that the property was being managed by the advocate through one S.B. Chakraborty and not by the said Rashid Ahmed Barry and Iqbal Ahmed Barry, over a long period of years. The informa-tion before the Auditor was that Rashid Ahmed Barry and Iqbal Ahmad Barry had gone away to Pakistan. Between 1974 and July, 1984 inspite of repeated opportunities given by the Criminal Court, the said Rashid Ahmed Barry and Iqbal Ahmed Barry did not appear before the Criminal Court, over a period of 10 years. Their presence in Delhi on 2.4.84 itself is highly doubtful.
(Paras 18, 19,20)
The genuineness of this document was doubtful and therefore, the Appellant had no legal right. Rashid Ahmed Barry and Iqbal Ahmed Barry were not available and traceable and there was no proof that they were in India and were actually managing the Wakf Estate.
(Para 17)
The learned Single Judge was justified in stat-ing that the Commissioner was right in coming to the conclusion that Rashid Ahmed Barry and Iqbal Ahmed Barry had ceased to function as Mutawallis and that therefore, the Commissioner was entitled to appoint an official Mutawalli.
(Para 16)
JUDGEMENT:
ORDER
1. This is an appeal by one Nasir Abdullah against the judgment of the Division Bench of the Calcutta High Court passed in FMAT No.2 of 1988 dated 17.3.88. That was an appeal against the judg-ment of the learned Single Judge of the High Court dated 18.12.87 in a Writ Petition filed by the Appellant questioning the order passed by the Commissioner of Wakfs dated 27.4.84.
2. The brief facts of this case are as follows. By a deed of Wakf dated 5.2.27, a Wakf was created by one Sheik Mohammed Ibrahim Barry. The said document also prescribed the mode of appointment to the office of Mutawalli of the Wakf from time to time. After the death of the original founder of the Wakf above mentioned, his son Yusuf Barry became the sole Mutawalli as per the above said deed. During his life time he executed a document dated 16.5.46 appointing his three sons, Mansoor Ahmed Barry, Rashid Barry and Iqbal Barry as Co-Mutawallis. Mansoor Ahmed Barry died on 17.11.77. The two surviving Mutawallis, i.e. brothers of Man-soor, namely, Rashid and Iqbal are alleged to have executed a deed of appointment dated 2.4.84 before a Notary at Delhi in favour of the Appellant Nazir Abdullah appointing him as Mutawalli. It appears that in the meantime, the Commissioner of Wakfs had appointed an official Mutawalli by order dated 7.6.84 and the tenant refused to pay the rent to the Appellant. Instead of going before the Commissioner to have the order dated 7.6.84 to set aside, the Appellant filed a Writ Petition C.O. No. 8557/84 on 7.6.84 challenging the order dated 27.4.84 of the Commissioner. The learned Single Judge of the High Court gave detailed judgment doubting the genuineness of the deed dated 2.4.84 and also passed an order on 18.12.87. The said order dated 18.12.87 reads as follows:
“Application disposed of on these terms:
Let the order of the Commissioner dated 27.4.84 be sustained but the Petitioner will be at liberty to apply to the Commissioner to rescind his order of appointment of the official Mutawalli and if Nazir Abdullah satisfies the Commissioner that he had been ap-pointed as the Mutawalli, the Commissioner shall revoke his order dated 27th April, 1984 appointing the official Mutawalli and shall enrol Nasir Abdullah as the Mutawalli, stay refused.”
(We shall refer to the main judgment of the learned Single Judge at a later stage)
3. The effect of the above order of the learned Single Judge was that the order of Commissioner dated 27.4.84 continued to operate and the Appellant was merely permitted to seek the cancellation of the said order by moving the Commissioner again.
4. The Appellant was, however, not inclined to go before the Commissioner for such cancellation. Instead, he filed an appeal before the Division Bench of the Calcutta High Court and con-tended that the order of the Commissioner was wrong, that the deed dated 27.4.84, was executed by Rashid Barry and Iqbal Barry, that they nominated him as Mutawalli, that the said nomination was based upon an earlier meeting of the beneficiaries on 30th March, 1984 at Delhi, wherein a decision was taken that the said Rashid Barry and Iqbal Barry should resign and that the Appell-ant, who is alleged to be the great grandson of the original founder was to be nominated as Mutawalli.
5. The learned Judges of the Division Bench noticed that accord-ing to an audit report the said Rashid Barry and Iqbal Barry were living in Pakistan for several years. But the counsel appearing before the Commissioner asserted they were always in India and were, at that time out of Calcutta. The Commissioner of Wakfs gave several adjournments to the counsel for the Appellant, but in spite of repeated request by the Commissioner neither Rashid Barry nor Iqbal Barry appeared before the Commissioner. These facts and the statement of the lawyer that he (the lawyer) was looking after the Wakf coupled with the report of the Audi-tors and Inspector led the learned Judges to the conclusion that the nomination dated 2.4.84 by the said two persons was not established inasmuch as the execution of the said document at Delhi, before a Notary was highly doubtful. Towards the conclu-sion of the case the learned Judges gave a further opportunity to the Appellant to produce the said Rashid Barry and Iqbal Barry in the High Court but this was declined. The Appellant also did not agree to the suggestion of the Bench to go before the Commis-sioner to seek revocation of the order dated 27.4.84. The Divi-sion Bench therefore, came to the conclusion that the Appellant’s nomination was not established and he had no legal right to be declared as Mutawalli in respect of the Wakf. The appeal was dismissed. The interim order of stay was vacated.
6. In this Court the appeal was admitted and an order of status quo was passed on 10.5.88 and a further order was passed on 18.9.95 continuing the interim order but directing the Appellant to comply with the provisions of the Wakf Act. The Appellant was also directed not to alienate the property without previous sanction as required under Section 53 of the said Act. We are told that there are about 300 tenants in the property which is centrally located in the city of Calcutta.
7. In this appeal, we have heard learned senior Counsel for Appellant and the learned Counsel for the Respondents.
8. The only question is as to the genuineness of the nomination of the deed dated 2.4.84 allegedly executed by Rashid Barry and Iqbal Barry appointing the Appellant as Mutawalli.
9. It is the Appellant’s case that after the alleged nomination of the Appellant a photo copy of the order coupled with a xerox copy of the resolution dated 30.3.84 notarised by the Notary, Delhi, was sent to the Commissioner on 4.4.84. However, in the inquiry, before the Commissioner, the original documents were not produced. Rashid Barry and Iqbal Barry were not present before the Commissioner. In spite of the fact that several adjournments were granted calling for their appearance, the advocate who represented them stated that the said Mutawallis Rashid Barry and Iqbal Barry were out of Calcutta. But the Counsel was reluctant to supply their addresses. The matter was adjourned to 11.4.84 at the instance of the said advocate, but inasmuch as the Mutawallis were not produced nor their addresses were furnished, a request for further adjournment was refused and an order was passed on 27.4.84 by the Commissioner. It was admitted by the learned advocate that the said two Mutawallis who were alleged to have nominated the Appellant were not living in Calcutta. He was also reluctant to supply their addresses. The learned advocate stated that the Estate was being managed by one S.B. Chakraborty who was authorised to collect rent. The Commissioner then re-ferred to a report prepared by the Inspector of Wakfs dated 8.11.83 in response to an Order of the Commissioner dated 18.12.82. The Inspector who inspected the property found that nobody was acting as Mutawalli of the Wakf but the property was being managed only by the said S.B. Chakraborty who refused to supply the addresses of the joint Mutawallis. The Commissioner found that though his department was anxious to know the whereabouts of the joint Mutawallis, no information was furnished in spite of repeated requests. He also noticed that all the notices that were being sent by the Commissioner’s office were being received by the said S.B. Chakraborty and were being answered by the above said advocate. The statement of accounts for the years 1979 to 1982 was also filed by the advocate and not by the Mutawallis. One petition dated 12.8.83 allegedly containing the signature of the Rashid Ahmed Barry did not contain his full name and looked suspicious. The Commissioner stated that it had come to light that the Mutawallis were not the resident of Calcutta and the Wakf was being managed by someone else. It also appeared from the record that a huge amount of Wakf contribution to the tune of Rs. 37,676.49 and E.F.C. amounting to Rs. 8,839.88 p. was due upto 1983-84. Only a sum of Rs. 2,000/- was paid in spite of several demand notices. He, therefore, came to the conclusion that the two Mutawallis had no control over the Wakf Estate and the same was being run by a stranger Shri. S.B. Chakraborty and this was not permissible under the West Bengal Wakf Act, 1934. This continued to be the position over a long period of years, before the inquiry by the Commissioner. The property of the Wakf Estate was situated in the most important and commercial belt of Calcutta and it was not known what the person managing the prop-erty namely Mr. Chakraborty was doing in regard to the proper-ties. The Commissioner therefore felt that it was not permissible to continue the names of Rashid Ahmed Barry and Iqbal Ahmed Barry as Mutawallis and he directed that their names be struck off and appointed an official Mutawalli. As stated earlier, the Appellant did not move the Commissioner for setting aside the above order but filed the Writ Petition and claimed to have been nominated by the abovesaid two persons by a deed dated 2.4.84. He relied upon the alleged deed of nomination dated 2.4.84. As already stated the original of the said document was not produced by the ad-vocate of the two former Mutawallis before the Commissioner.
10. In our view, the order of the Commissioner removing the names of Rashid and Iqbal from the list of Mutawallis on the ground that they were not taking any interest in the Wakf is not liable to be set aside inasmuch as the above reason is good enough for removal of their names.
11.The question of the genuineness of the deed of nomination arose for the first time in the Writ Petition and then in the appeal before the Division Bench in the appeal.
12. The learned Single Judge of the High Court, as already stated, upheld the Commissioner’s order dated 27.4.84 but at the same time granted permission to the Appellant to move the Commis-sioner for review. The Appellant was not willing to do so and he filed the appeal before the Division Bench. The appellate court referred to the findings of the Commissioner and pointed out that the appellant was not agreeable to go before the Commissioner for revocation of the order.
13. We shall refer to the reasons given by the learned Single Judge in the main judgment for holding the nomination deed to be a doubtful document. These are set out extensively in the judg-ment of the Division Bench.
14. Before the learned Single Judge, the Appellant had not pro-duced any material to show that Rashid Ahmed Barry and Iqbal Ahmed Barry were available in India or at Delhi on 2.4.84 when the alleged deed was executed. The learned Single Judge referred to the letter of the advocate dated 4.4.84 in answer to a letter of the Commissioner dated 22.12.83 wherein the advocate stated that his clients, the two Mutawallis were living “for all practical pur-poses” at 27-A, Lenin Sarahi Calcutta and all letters may be sent to that address. The learned Judge stated that the advocate was not able to give the correct address except to say that “for all practical purposes” that was the address of Rashid Ahmed Barry and Iqbal Ahmed Barry. That showed that the lawyer himself was unable or unwilling to state where they were actually living. The learned Judge also referred to the report of the Inspector. The said report stated that the said Inspector was informed that Rashid Ahmed Barry and Iqbal Ahmed Barry were staying in Delhi along with their families. The Delhi address was not supplied and one Chakraborty was receiving the rent. The Auditor’s report however, showed that Rashid Ahmed Barry and Iqbal Ahmed Barry had left the country and were in Pakistan. Thus the execution of the deed dated 2.4.84 at Delhi was held to be highly doubtful. In fact, the advocate had not relied upon any such deed before the Commissioner on 24.4.84 nor produced it before him even though the inquiry before the Commissioner was held a few days after the date of the alleged execution of the deed. Nor did the executants appear before the Commissioner. Even during the life time of Mansoor, on an application by him, the said Mansoor was regis-tered as the sole Mutawalli in the register of the Commissioner. In that application he had stated that Rashid and Iqbal were not taking any interest in the Wakf.
15. An argument was advanced before the learned Single Judge that the Commissioner could not have appointed the official Mutawalli under Section 40 of the West Bengal Wakf Act. The learned Judge pointed out that there was a Resolution of the Board dated 9.8.80 which delegated the powers of appointment of Mutawalli to the Commissioner enabling him to make such appointment for a period not exceeding 5 years.
16. In our view, the learned Single Judge was justified in stat-ing that the Commissioner was right in coming to the conclusion that Rashid Ahmed Barry and Iqbal Ahmed Barry had ceased to function as Mutawallis and that therefore, the Commissioner was entitled to appoint an official Mutawalli.
17. We shall now refer to the reasons given by the Division Bench. The Division Bench confirmed the judgment of the learned Single Judge and the order of the Commissioner and said that they could not be characterised as perverse. The very legal right of the Appellant to file the Writ Petition was in question. The Appellant’s name was not found in the register of Wakfs. In fact, much earlier among the three sons of Yusuf Barry, Mansoor Ahmed Barry had applied for his being appointed as sole Mutawalli be-cause Rashid Ahmed Barry and Iqbal Ahmed Barry had not taken any interest in the Wakf. It was on his application that Mansoor Ahmed Barry was already recorded as the sole Mutawalli. Therefore, the proceedings of the above Commissioner showed that Mansoor Ahmed was the sole Mutawalli and therefore, it was not clear how Rashid Ahmed Barry and Iqbal Ahmed Barry could have executed the document of nomination on 2.4.84. According to the learned Judg-es, the genuineness of this document was doubtful and therefore, the Appellant had no legal right. Rashid Ahmed Barry and Iqbal Ahmed Barry were not available and traceable and there was no proof that they were in India and were actually managing the Wakf Estate.
18. After considering the above said reasoning given by the learned Single Judge and the Division Bench, we are of the view that there is no error of law or fact in the above judgments. Admittedly, Mansoor Ahmed had written a letter to the Department saying that Rashid Ahmed Barry and Iqbal Ahmed Barry were not taking any interest. On that basis Mansoor Ahmed Barry alone was recorded as sole Mutawalli. So far as the meeting dated 30.3.84 which is alleged to have taken place at Delhi and in which it is alleged that a decision was taken to nominate the Appell-ant, the original proceedings were not placed before the Commis-sioner. Similarly the subsequent deed of nomination dated 2.4.84 was also not placed before the Commissioner. Repeated opportuni-ties were given before the Commissioner requiring Rashid Ahmed Barry and Iqbal Ahmed Barry to be present but they were never present nor their addresses were furnished. The Commissioner had found that the property was being managed by the advocate through one S.B. Chakraborty and not by the said Rashid Ahmed Barry and Iqbal Ahmed Barry, over a long period of years. Therefore, he felt that it was a fit case where their names should be removed and an official trustee should be appointed. The learned Single Judge referred to the proceedings of the Board delegating powers to the Commissioner to appoint an official trustee. The informa-tion before the Auditor was that Rashid Ahmed Barry and Iqbal Ahmad Barry had gone away to Pakistan. If that be so it was highly doubtful if they had come to India. There was no evidence of their coming to India and participating in a meeting dated 30.3.84 or executing the deed on 2.4.84. If they were there in India nothing prevented them from appearing before the Commis-sioner on 11.4.84 and 27.4.84 because those dates of hearing were very close to 2.4.84. There was no reason why the original deed of nomination dated 2.4.84 was not produced before the Commis-sioner.
19. We found from the record a copy of the proceedings of Crimi-nal Court in Calcutta which showed that between 1974 and July, 1984 inspite of repeated opportunities given by the Criminal Court, the said Rashid Ahmed Barry and Iqbal Ahmed Barry did not appear before the Criminal Court, over a period of 10 years. This is clear from the proceedings of the 5th Metropolitan Magis-trate Calcutta in Case No. C/659 of 1974 order dated 13.7.84. That was a case filed against them for breach of the provisions of the Wakf Act. The said order reads as follows:
“Accused absent by petition and represented by Ld. Spl. P.P. on behalf of the Wakf Commissioner present.
Accused was directed to appear personally in Court in the several orders previously passed by the Court. Previous order would show that this Court is willing to examine the accused personally. Ld. lawyer for the accused never submitted before that accused be examined through him. Today, there was a direction for production of the accused personally but it is said the accused is now residing at Delhi.
Fix 27.8.84 for examination of the accused under Section 313 Crl. P.C. If the accused do not come on that day legal consequences will follow.”
20. It will be noticed that the date of the deed 2.4.84 falls between 1974 and the date of the above order, 13.7.84. This fact also proves that the so-called execution of the deed by the two persons on 2.4.84 has not been proved. Their presence in Delhi on 2.4.84 itself is highly doubtful. For the aforesaid reasons, we are in agreement with the view of the learned Single Judge of Division Bench of the High Court.
21. Learned senior Counsel for the Appellant has however re-quested that a further opportunity may be given to the Appellant to go before the Commissioner to seek revocation of the order dated 24.4.84. We are not inclined to agree. Such opportunity was given by the learned Single Judge as well as by the Division Bench and the Appellant for obvious reasons never though it fit to avail of the said opportunity to bring Rashid and Iqbal to prove the execution of the deed. Obviously, he had no material to prove that the above persons were in India or in Delhi on 2.4.84. We are therefore, not inclined to give any opportunity at the stage.
22. For the aforesaid reasons, the appeal is dismissed. The stay granted by this Court is vacated there shall be no order as to costs.
1. This is an appeal by one Nasir Abdullah against the judgment of the Division Bench of the Calcutta High Court passed in FMAT No.2 of 1988 dated 17.3.88. That was an appeal against the judg-ment of the learned Single Judge of the High Court dated 18.12.87 in a Writ Petition filed by the Appellant questioning the order passed by the Commissioner of Wakfs dated 27.4.84.
2. The brief facts of this case are as follows. By a deed of Wakf dated 5.2.27, a Wakf was created by one Sheik Mohammed Ibrahim Barry. The said document also prescribed the mode of appointment to the office of Mutawalli of the Wakf from time to time. After the death of the original founder of the Wakf above mentioned, his son Yusuf Barry became the sole Mutawalli as per the above said deed. During his life time he executed a document dated 16.5.46 appointing his three sons, Mansoor Ahmed Barry, Rashid Barry and Iqbal Barry as Co-Mutawallis. Mansoor Ahmed Barry died on 17.11.77. The two surviving Mutawallis, i.e. brothers of Man-soor, namely, Rashid and Iqbal are alleged to have executed a deed of appointment dated 2.4.84 before a Notary at Delhi in favour of the Appellant Nazir Abdullah appointing him as Mutawalli. It appears that in the meantime, the Commissioner of Wakfs had appointed an official Mutawalli by order dated 7.6.84 and the tenant refused to pay the rent to the Appellant. Instead of going before the Commissioner to have the order dated 7.6.84 to set aside, the Appellant filed a Writ Petition C.O. No. 8557/84 on 7.6.84 challenging the order dated 27.4.84 of the Commissioner. The learned Single Judge of the High Court gave detailed judgment doubting the genuineness of the deed dated 2.4.84 and also passed an order on 18.12.87. The said order dated 18.12.87 reads as follows:
“Application disposed of on these terms:
Let the order of the Commissioner dated 27.4.84 be sustained but the Petitioner will be at liberty to apply to the Commissioner to rescind his order of appointment of the official Mutawalli and if Nazir Abdullah satisfies the Commissioner that he had been ap-pointed as the Mutawalli, the Commissioner shall revoke his order dated 27th April, 1984 appointing the official Mutawalli and shall enrol Nasir Abdullah as the Mutawalli, stay refused.”
(We shall refer to the main judgment of the learned Single Judge at a later stage)
3. The effect of the above order of the learned Single Judge was that the order of Commissioner dated 27.4.84 continued to operate and the Appellant was merely permitted to seek the cancellation of the said order by moving the Commissioner again.
4. The Appellant was, however, not inclined to go before the Commissioner for such cancellation. Instead, he filed an appeal before the Division Bench of the Calcutta High Court and con-tended that the order of the Commissioner was wrong, that the deed dated 27.4.84, was executed by Rashid Barry and Iqbal Barry, that they nominated him as Mutawalli, that the said nomination was based upon an earlier meeting of the beneficiaries on 30th March, 1984 at Delhi, wherein a decision was taken that the said Rashid Barry and Iqbal Barry should resign and that the Appell-ant, who is alleged to be the great grandson of the original founder was to be nominated as Mutawalli.
5. The learned Judges of the Division Bench noticed that accord-ing to an audit report the said Rashid Barry and Iqbal Barry were living in Pakistan for several years. But the counsel appearing before the Commissioner asserted they were always in India and were, at that time out of Calcutta. The Commissioner of Wakfs gave several adjournments to the counsel for the Appellant, but in spite of repeated request by the Commissioner neither Rashid Barry nor Iqbal Barry appeared before the Commissioner. These facts and the statement of the lawyer that he (the lawyer) was looking after the Wakf coupled with the report of the Audi-tors and Inspector led the learned Judges to the conclusion that the nomination dated 2.4.84 by the said two persons was not established inasmuch as the execution of the said document at Delhi, before a Notary was highly doubtful. Towards the conclu-sion of the case the learned Judges gave a further opportunity to the Appellant to produce the said Rashid Barry and Iqbal Barry in the High Court but this was declined. The Appellant also did not agree to the suggestion of the Bench to go before the Commis-sioner to seek revocation of the order dated 27.4.84. The Divi-sion Bench therefore, came to the conclusion that the Appellant’s nomination was not established and he had no legal right to be declared as Mutawalli in respect of the Wakf. The appeal was dismissed. The interim order of stay was vacated.
6. In this Court the appeal was admitted and an order of status quo was passed on 10.5.88 and a further order was passed on 18.9.95 continuing the interim order but directing the Appellant to comply with the provisions of the Wakf Act. The Appellant was also directed not to alienate the property without previous sanction as required under Section 53 of the said Act. We are told that there are about 300 tenants in the property which is centrally located in the city of Calcutta.
7. In this appeal, we have heard learned senior Counsel for Appellant and the learned Counsel for the Respondents.
8. The only question is as to the genuineness of the nomination of the deed dated 2.4.84 allegedly executed by Rashid Barry and Iqbal Barry appointing the Appellant as Mutawalli.
9. It is the Appellant’s case that after the alleged nomination of the Appellant a photo copy of the order coupled with a xerox copy of the resolution dated 30.3.84 notarised by the Notary, Delhi, was sent to the Commissioner on 4.4.84. However, in the inquiry, before the Commissioner, the original documents were not produced. Rashid Barry and Iqbal Barry were not present before the Commissioner. In spite of the fact that several adjournments were granted calling for their appearance, the advocate who represented them stated that the said Mutawallis Rashid Barry and Iqbal Barry were out of Calcutta. But the Counsel was reluctant to supply their addresses. The matter was adjourned to 11.4.84 at the instance of the said advocate, but inasmuch as the Mutawallis were not produced nor their addresses were furnished, a request for further adjournment was refused and an order was passed on 27.4.84 by the Commissioner. It was admitted by the learned advocate that the said two Mutawallis who were alleged to have nominated the Appellant were not living in Calcutta. He was also reluctant to supply their addresses. The learned advocate stated that the Estate was being managed by one S.B. Chakraborty who was authorised to collect rent. The Commissioner then re-ferred to a report prepared by the Inspector of Wakfs dated 8.11.83 in response to an Order of the Commissioner dated 18.12.82. The Inspector who inspected the property found that nobody was acting as Mutawalli of the Wakf but the property was being managed only by the said S.B. Chakraborty who refused to supply the addresses of the joint Mutawallis. The Commissioner found that though his department was anxious to know the whereabouts of the joint Mutawallis, no information was furnished in spite of repeated requests. He also noticed that all the notices that were being sent by the Commissioner’s office were being received by the said S.B. Chakraborty and were being answered by the above said advocate. The statement of accounts for the years 1979 to 1982 was also filed by the advocate and not by the Mutawallis. One petition dated 12.8.83 allegedly containing the signature of the Rashid Ahmed Barry did not contain his full name and looked suspicious. The Commissioner stated that it had come to light that the Mutawallis were not the resident of Calcutta and the Wakf was being managed by someone else. It also appeared from the record that a huge amount of Wakf contribution to the tune of Rs. 37,676.49 and E.F.C. amounting to Rs. 8,839.88 p. was due upto 1983-84. Only a sum of Rs. 2,000/- was paid in spite of several demand notices. He, therefore, came to the conclusion that the two Mutawallis had no control over the Wakf Estate and the same was being run by a stranger Shri. S.B. Chakraborty and this was not permissible under the West Bengal Wakf Act, 1934. This continued to be the position over a long period of years, before the inquiry by the Commissioner. The property of the Wakf Estate was situated in the most important and commercial belt of Calcutta and it was not known what the person managing the prop-erty namely Mr. Chakraborty was doing in regard to the proper-ties. The Commissioner therefore felt that it was not permissible to continue the names of Rashid Ahmed Barry and Iqbal Ahmed Barry as Mutawallis and he directed that their names be struck off and appointed an official Mutawalli. As stated earlier, the Appellant did not move the Commissioner for setting aside the above order but filed the Writ Petition and claimed to have been nominated by the abovesaid two persons by a deed dated 2.4.84. He relied upon the alleged deed of nomination dated 2.4.84. As already stated the original of the said document was not produced by the ad-vocate of the two former Mutawallis before the Commissioner.
10. In our view, the order of the Commissioner removing the names of Rashid and Iqbal from the list of Mutawallis on the ground that they were not taking any interest in the Wakf is not liable to be set aside inasmuch as the above reason is good enough for removal of their names.
11.The question of the genuineness of the deed of nomination arose for the first time in the Writ Petition and then in the appeal before the Division Bench in the appeal.
12. The learned Single Judge of the High Court, as already stated, upheld the Commissioner’s order dated 27.4.84 but at the same time granted permission to the Appellant to move the Commis-sioner for review. The Appellant was not willing to do so and he filed the appeal before the Division Bench. The appellate court referred to the findings of the Commissioner and pointed out that the appellant was not agreeable to go before the Commissioner for revocation of the order.
13. We shall refer to the reasons given by the learned Single Judge in the main judgment for holding the nomination deed to be a doubtful document. These are set out extensively in the judg-ment of the Division Bench.
14. Before the learned Single Judge, the Appellant had not pro-duced any material to show that Rashid Ahmed Barry and Iqbal Ahmed Barry were available in India or at Delhi on 2.4.84 when the alleged deed was executed. The learned Single Judge referred to the letter of the advocate dated 4.4.84 in answer to a letter of the Commissioner dated 22.12.83 wherein the advocate stated that his clients, the two Mutawallis were living “for all practical pur-poses” at 27-A, Lenin Sarahi Calcutta and all letters may be sent to that address. The learned Judge stated that the advocate was not able to give the correct address except to say that “for all practical purposes” that was the address of Rashid Ahmed Barry and Iqbal Ahmed Barry. That showed that the lawyer himself was unable or unwilling to state where they were actually living. The learned Judge also referred to the report of the Inspector. The said report stated that the said Inspector was informed that Rashid Ahmed Barry and Iqbal Ahmed Barry were staying in Delhi along with their families. The Delhi address was not supplied and one Chakraborty was receiving the rent. The Auditor’s report however, showed that Rashid Ahmed Barry and Iqbal Ahmed Barry had left the country and were in Pakistan. Thus the execution of the deed dated 2.4.84 at Delhi was held to be highly doubtful. In fact, the advocate had not relied upon any such deed before the Commissioner on 24.4.84 nor produced it before him even though the inquiry before the Commissioner was held a few days after the date of the alleged execution of the deed. Nor did the executants appear before the Commissioner. Even during the life time of Mansoor, on an application by him, the said Mansoor was regis-tered as the sole Mutawalli in the register of the Commissioner. In that application he had stated that Rashid and Iqbal were not taking any interest in the Wakf.
15. An argument was advanced before the learned Single Judge that the Commissioner could not have appointed the official Mutawalli under Section 40 of the West Bengal Wakf Act. The learned Judge pointed out that there was a Resolution of the Board dated 9.8.80 which delegated the powers of appointment of Mutawalli to the Commissioner enabling him to make such appointment for a period not exceeding 5 years.
16. In our view, the learned Single Judge was justified in stat-ing that the Commissioner was right in coming to the conclusion that Rashid Ahmed Barry and Iqbal Ahmed Barry had ceased to function as Mutawallis and that therefore, the Commissioner was entitled to appoint an official Mutawalli.
17. We shall now refer to the reasons given by the Division Bench. The Division Bench confirmed the judgment of the learned Single Judge and the order of the Commissioner and said that they could not be characterised as perverse. The very legal right of the Appellant to file the Writ Petition was in question. The Appellant’s name was not found in the register of Wakfs. In fact, much earlier among the three sons of Yusuf Barry, Mansoor Ahmed Barry had applied for his being appointed as sole Mutawalli be-cause Rashid Ahmed Barry and Iqbal Ahmed Barry had not taken any interest in the Wakf. It was on his application that Mansoor Ahmed Barry was already recorded as the sole Mutawalli. Therefore, the proceedings of the above Commissioner showed that Mansoor Ahmed was the sole Mutawalli and therefore, it was not clear how Rashid Ahmed Barry and Iqbal Ahmed Barry could have executed the document of nomination on 2.4.84. According to the learned Judg-es, the genuineness of this document was doubtful and therefore, the Appellant had no legal right. Rashid Ahmed Barry and Iqbal Ahmed Barry were not available and traceable and there was no proof that they were in India and were actually managing the Wakf Estate.
18. After considering the above said reasoning given by the learned Single Judge and the Division Bench, we are of the view that there is no error of law or fact in the above judgments. Admittedly, Mansoor Ahmed had written a letter to the Department saying that Rashid Ahmed Barry and Iqbal Ahmed Barry were not taking any interest. On that basis Mansoor Ahmed Barry alone was recorded as sole Mutawalli. So far as the meeting dated 30.3.84 which is alleged to have taken place at Delhi and in which it is alleged that a decision was taken to nominate the Appell-ant, the original proceedings were not placed before the Commis-sioner. Similarly the subsequent deed of nomination dated 2.4.84 was also not placed before the Commissioner. Repeated opportuni-ties were given before the Commissioner requiring Rashid Ahmed Barry and Iqbal Ahmed Barry to be present but they were never present nor their addresses were furnished. The Commissioner had found that the property was being managed by the advocate through one S.B. Chakraborty and not by the said Rashid Ahmed Barry and Iqbal Ahmed Barry, over a long period of years. Therefore, he felt that it was a fit case where their names should be removed and an official trustee should be appointed. The learned Single Judge referred to the proceedings of the Board delegating powers to the Commissioner to appoint an official trustee. The informa-tion before the Auditor was that Rashid Ahmed Barry and Iqbal Ahmad Barry had gone away to Pakistan. If that be so it was highly doubtful if they had come to India. There was no evidence of their coming to India and participating in a meeting dated 30.3.84 or executing the deed on 2.4.84. If they were there in India nothing prevented them from appearing before the Commis-sioner on 11.4.84 and 27.4.84 because those dates of hearing were very close to 2.4.84. There was no reason why the original deed of nomination dated 2.4.84 was not produced before the Commis-sioner.
19. We found from the record a copy of the proceedings of Crimi-nal Court in Calcutta which showed that between 1974 and July, 1984 inspite of repeated opportunities given by the Criminal Court, the said Rashid Ahmed Barry and Iqbal Ahmed Barry did not appear before the Criminal Court, over a period of 10 years. This is clear from the proceedings of the 5th Metropolitan Magis-trate Calcutta in Case No. C/659 of 1974 order dated 13.7.84. That was a case filed against them for breach of the provisions of the Wakf Act. The said order reads as follows:
“Accused absent by petition and represented by Ld. Spl. P.P. on behalf of the Wakf Commissioner present.
Accused was directed to appear personally in Court in the several orders previously passed by the Court. Previous order would show that this Court is willing to examine the accused personally. Ld. lawyer for the accused never submitted before that accused be examined through him. Today, there was a direction for production of the accused personally but it is said the accused is now residing at Delhi.
Fix 27.8.84 for examination of the accused under Section 313 Crl. P.C. If the accused do not come on that day legal consequences will follow.”
20. It will be noticed that the date of the deed 2.4.84 falls between 1974 and the date of the above order, 13.7.84. This fact also proves that the so-called execution of the deed by the two persons on 2.4.84 has not been proved. Their presence in Delhi on 2.4.84 itself is highly doubtful. For the aforesaid reasons, we are in agreement with the view of the learned Single Judge of Division Bench of the High Court.
21. Learned senior Counsel for the Appellant has however re-quested that a further opportunity may be given to the Appellant to go before the Commissioner to seek revocation of the order dated 24.4.84. We are not inclined to agree. Such opportunity was given by the learned Single Judge as well as by the Division Bench and the Appellant for obvious reasons never though it fit to avail of the said opportunity to bring Rashid and Iqbal to prove the execution of the deed. Obviously, he had no material to prove that the above persons were in India or in Delhi on 2.4.84. We are therefore, not inclined to give any opportunity at the stage.
22. For the aforesaid reasons, the appeal is dismissed. The stay granted by this Court is vacated there shall be no order as to costs.
