Samsujjaman Munshi vs Jaynal Abedin Munshi & Ors
2023 Latest Caselaw 5578 Cal

25.08.2023
Sl. No.5(DL)
   srm

                                     C.O. No. 652 of 2023

                                    Samsujjaman Munshi

                                            Versus

                               Jaynal Abedin Munshi & Ors.



                         Mr. Iftekar Munshi,
                         Mr. Rishabh Ahmad Khan
                                                            ...for the Petitioner.
                         Mr. Tanmoy Mukherjee
                                                       ...for the opposite party.



                     It is informed by Mr. Munshi, learned Advocate for the

               petitioner that his client had heard from some sources that

               Jaynal Abedin Munshi, opposite party No.1 herein, has

               expired, but Mr. Munshi is not sure as yet. Thus, Mr. Munshi

               is directed to ascertain the actual state of affairs so that steps

               may be taken in accordance with law. Jaynal is represented by

               Hafizul who claims to be the constituted attorney of Jaynal

               and is the opposite party No.2.

                     By this revisional application, the judgment dated

               August 23, 2022 passed by the learned Waqf Tribunal in O.A.

               No.09 of 2020 has been challenged.

                     The petitioner was appointed as Joint Mutwalli with

               Jaynal Abedin on April 26, 2018, by the resolution of the Auqaf

               Board which was duly confirmed on May 30, 2018. The Board

               held that in terms of the Auqaf deed, the petitioner being the
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eldest son of the recorded Mutwalli Safiuddin Munshi (since

deceased), should be recorded as Joint Mutwalli with the

existing Jaynal Abedin Munshi under Section 3(i) of the Waqf

Act, 1995 in respect of the Abdul Bari Munshi Auqaf Estate.

Jaynal had tendered resignation in 2012.

      The decision was of the Board appointing the petitioner

as joint Mutwalli challenged by Hafizul in O.A. No.24 of 2018.

The original application was dismissed on contest against the

respondent No.2, i.e., the petitioner and ex parte against the

Board. Records do not indicate that the said order was ever set

aside or modified by a superior forum.

Hafizul filed another original application being O.A.

No.30 of 2018 for a direction upon the Board to appoint him as

a Joint Mutwalli along with the petitioner on the basis of the

several representations. Such original application was also

rejected.

By another resolution dated May 22, 2019, the Board of

Auqaf accepted the resignation of Jaynal Abedin Munshi, but

the prayer of Jaynal for appointment of Hafizul Munshi as the

Joint Mutwalli in his place, was rejected by the Board. The

Board recorded that the dictum of the Auqaf deed was that

only one person could act a Mutwalli. Therefore, the petitioner

was appointed as the sole Mutwalli.

Challenging the above decision, again, Hafizul filed

another original application for himself and as constituted

attorney of Jaynal, being O.A. No.09 of 2020. The impugned

order has been passed, directing the Board to appoint Hafizul

as the Joint Mutwalli with the petitioner.

Prima facie, it appears that Jaynal Abedin Munshi's

prayer for appointment of Hafizul as Joint Mutwalli was

rejected by the Board and the challenge to the same by Hafizul

was negated in O.A. No.24 of 2018. The original application

being O.A. No.30 of 2018 filed by Hafizul was also rejected.

Thereby, the prayer of Hafizul for a direction upon the Board

to consider his representations for being appointed as a Joint

Mutwalli was rejected by the learned tribunal earlier.

Again, Hafizul filed another original application

challenging the decision of the Board appointing the petitioner

as the sole Mutwalli. In O.A. No.24 of 2018, the learned

tribunal recorded that as per law, Mutwalli could be appointed

by a competent authority, or as per the mandate of the

Auqafnama or by custom. The specific case of Hafizul that he

was functioning as a Nayab Mutwalli on the basis of the

general power of attorney of Jaynal Abedin Munshi, was not

accepted. The general power of attorney was considered and it

was found that it was executed by Jaynal Abedin Munshi only

to allow Hafizul to perform certain works and the same could

not go beyond the rule of succession in the deed of Auqaf.

Prima facie, the issue had attained finality and the order

impugned by which the learned tribunal disposed of O.A.

No.09 of 2020, directing Hafizul to be appointed on the basis of

the Auqaf deed appears to be contradictory to the earlier

findings of the Board.

Thus, the petitioner has made out a good case, prima

facie case, for admission and stay.

There shall be stay of operation of the judgment dated

August 23, 2022. The petitioner will continue to function as the

Mutwalli, but fortnightly report shall be submitted before the

Board by the petitioner with regard to the management,

expenses incurred and other administrative decisions taken

while managing the estate. This arrangement shall continue up

to February 28, 2024 or until further orders whichever is

earlier.

It is also submitted that several complaints have already

been filed before the Board on certain misdeeds of Hafizul.

The Board shall come back with proper instructions and

factual clarifications with regard to the 'lis' involved and the

right of Hafizul.

A copy of the revisional application along with a server

copy of this order be served upon all the opposite parties as

also upon the learned Advocates for opposite parties in the

learned tribunal.

Affidavit-of-service to be filed on the next date.

Let this matter appear in the Combined Monthly List of

January, 2023 under the heading "Fixed Matters".

Parties are to act on the basis of the server copy of this

order.

(Shampa Sarkar, J.)