Hazrat Syed Shah Mastershid Ali Al
Quadari Vs. The Commissioner of Wakfs, West Bengal  INSC 36 (6 February
06/02/1961 HIDAYATULLAH, M.
CITATION: 1961 AIR 1095 1961 SCR (3) 759
CITATOR INFO :
F 1963 SC1581 (5)
Mutawalli--Temporary appointment--When can be
made by the Commissioner--Delegation of Powers--Duty interwoven with
power--Distinction--Bengal Wakf Act, 1934 (Ben. XIII of 1934), SS. 29, 40.
During controversy between two brothers each
of whom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed
a third brother as a temporary Mutawalli under s. 40 of the Bengal Wakf Act,
which appointment was challenged on the ground that the order of the
Commissioner appointing a temporary Mutawalli was illegal because under the
rules framed by the Government of West Bengal the Board constituted under
Bengal Wakf Act could alone make the appointment and the Commissioner could
only make a report and recommendation to the Board.
Held, that under the provisions of s. 40 read
with S. 29 of the Bengal Wakf Act, a temporary Mutawalli can be appointed by
the Commissioner to whom the powers and duties have been 760 delegated by the
Board. The Rules cannot affect the powers of the Board to delegate its
functions under S. 29 of the Act to the Commissioner, and once the delegation
is made the rules cease to apply.
Held, further, that where power and duty are
interconnected and it is not possible to separate one from the other in such
wise that power can be delegated while duty is retained and vice versa, the
delegation of powers takes with it the duties.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 237 of 1956.
Appeal by special leave from the judgment and
order dated December 13, 1954, of the Calcutta High Court in Appeal from
Original Order No. 117 of 1954.
B....Sen, P. K. Chatterjee and S. N.
Mukherjee, for the appellant.
B....C. Mitter and D. Mukherjee, for
respondent No. 1.
1961. February 6. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-This appeal is as much without substance, as
it was unnecessary. Hazrat Syed Mastershid Ali Al Quadari (the appellant) is
the eldest son of one Hazrat Sahib Syed Shah Mastershid Ali Al Quadari
(shortly, Hazrat Sahib), the first Mutawalli of a wakf created on August 9,
1931, for the maintenance of the shrine of a Muslim Pir in the town of
Midnapur. After the death of Hazrat Sahib, the appellant, claiming to succeed
to his father as Sajjadanashin, being his eldest son, made an application To
the Commissioner under the Bengal Wakf Act. His younger brother, Syed Shah
Rushaid Ali Al Quadari, opposed his claim, the ground being that he was
nominated as the succes- sor by Hazrat Sahib. While this controversy was afoot,
the Commissioner, acting under s. 40 of the Bengal Wakf Act, appointed Syed
Shah Rasheed Ali Al Quadari (the third son of Hazrat Sahib) as a temporary
Mutawalli. The appellant then moved a petition in the Calcutta High Court under
Art. 226 of the Constitution against the appointment, which was allowed by
Sinha, J. and the order of the Commissioner was set aside. On appeal to the
Divisional Bench, consisting of Chakravarti, C. J. and Lahiri, J. (as he then
761 was), the order of Sinha, J. was reversed, and the petition was dismissed.
This appeal has been filed with special leave.
It is contended in this appeal that the order
of the Commissioner appointing a temporary Mutawalli was illegal, because under
the Rules framed by the Government, only the Board constituted under the Bengal
Wakf Act could make the appointment. This argument, in our opinion, is wholly
unsound. The learned Chief Justice of the High Court examined the matter at
great length in reaching his conclusion; but, in our opinion, the reasons can
be stated within a narrow compass.
We are concerned with sections 40 and 29 of
the Bengal Wakf Act. Section 40 reads as follows:
" In the case of any Wakf of which there
is no Mutwalli or where there appears to the Board to be an impediment to the
appointment of amutwalli the Board, subject to any order of a competent Court,
may appoint for such period as it thinks fit a person to act as Mutwalli."
Section 29 provides:
"The Board may, from time to time,
authorize the Commissioner to exercise and perform, subject to the control of
the Board, any of the powers and duties conferred or imposed on the Board by or
under this Act." On April 24, 1936, the Board adopted the following
" (2). In exercise of the powers vested
in them under Section 29 of the Act this Board resolve that the Commissioner of
Wakfs be authorised to exercise and perform, subject to the control and
approval of this Board, the following powers and duties conferred or imposed on
this Board by the sections of the Act mentioned against each case:- (c)...The
powers of this Board under section 40 to appoint a temporary mutwalli."
These two provisions of the Act show only too plainly that a temporary
Mutawalli can be appointed either by the Board, or, if the powers and duties be
762 delegated to the Commissioner, by the Commissioner. The appellant contends
that the Commissioner can only make a report to the Board, and the Board alone
can make the appointment, and refers to two Rules framed by Government.
These Rules are:
"1. If it appears to the Commissioner
that there is no mutwalli, in the case of any wakf, or that a a vacancy in the
office of the mutwalli has been caused by death, resignation, retirement or
removal of th e former mutwalli, and a dispute has arisen between two or more
rival claimants to the vacancy, and such dispute is likely to affect the
interests of the Wakf, he may institute an enquiry and report the result
thereof to the Board with his recommendation.
2.....On receipt of the report and the
recommendation from the Commissioner, or on its own motion, the Board may
appoint a mutwalli under section 40 of the Act." It is argued that under
the second Rule the Commissioner was bound to make his report and
recommendation, but the Board alone was empowered to appoint a temporary Mutawalli
under s. 40. The last words of the second Rule, it is said, are clear. This is,
no doubt, true of those cases where the Board has not delegated its functions
under s. 40 to the Commissioner. Once that delegation has been made, the
Commissioner acts for and on behalf of the Board, and the Rules cease to apply.
The Rules cannot affect the power of the Board to delegate its functions under
s. 29, and harmonious construction requires that the Rules should give way,
when there is a delegation of the powers of the Board.
The Commissioner was thus competent to make
Mr. Sen, however, contends that the
appointment of a temporary Mutawalli could only be made if there was an "
impediment " to the appointment of a permanent Mutawalli, and that there
was no impediment to such an appointment but " a challenge to the
appellant as a candidate." The word " impediment " means
hindrance or obstruction, and there was certainly an obstruction to the
appointment of a permanent 763 Mutawalli, while the dispute remained undecided.
This point has no force whatever.
The question which seemed to have largely
engaged' attention in the High Court, namely, whether the delegation was only
of powers or also of duties of the Board, was not argued before us, though it
formed the subject of considerable discussion in the statements of the case. It
is without substance. Where powers and duties are interconnected and it is not
possible to separate one from the other in such wise that powers may be
delegated while duties are retained and vice versa, the delegation of powers
takes with it the duties. The proposition hardly needs authority; but if one
were necessary, reference may be made to Mungoni v. Attomey- General of
Northern Rhodesia (1).
In our opinion, the appeal has no force
whatever. The appellant chose the extraordinary course of dragging the
respondents twice to the High Court and again to this Court merely to challenge
an order of temporary duration, while the main controversy remained outstanding
for years and could have been decided by now.
The appeal fails, and is dismissed. The
appellant shall pay the costs of the respondents, who have entered appearance.