# AL QUADARI v. THE COMMISSIONER OF W AKFS

- **Citation:** [1961] 3 S.C.R. 759
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** CIVIL APPELLATE JuRisDlC'l'ION: Civil Appeal No. 237 of 1956
- **Bench:** J. L. Kapur, M. Hidayatullah, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/al-quadari-v-the-commissioner-of-w-akfs-2087
- **Pages:** 5

## Headnote

M utawalli - Temporary. appointment-II' hen can be made by
the Commissioner-Delegation of powers-Duty interwoven rvith
power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),
SS. 29, 40.
During controversy between two brothers each of \Vhom
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
IV! /s. f ethanand
and Sons
v.
State of
littar Pradesh
Shah J.
Ig61
February 6.
760
SUPREME COURT REPORTS
[1961)
1961
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
Hazrat Syed Shah Commissioner, and once the delegation is made the rules cease
Mastershid Ali to apply.
Al Quadari
f
.
Held,
urther, that where power and duty are rnterv.
Ctnnmissioner of
Wakfs,
Wesl Bengal
connected 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 JuRisDlC'l'ION:
Civil Appeal No.
237 of 1956.
Appeal by special leave from the judgment and
order dated December 13, 1954, of the Ca.Jcutta High
Court in Appeal from Original Order No. 117 of 1954.
B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the
appellant.
B. 0. Mitter and D. Mukherjee, for respondent
No. l.
1961. February 6. The Judgment of the Court was
delivered by
Hidayat1tllah J.
HIDAYATULLAH, J.-This appeal is as much without
subRtance, as it was unnecessary.
Hazrat Syed
Mastershid Ali Al Quadctri (the appellant) is the eldest
son of one Hazrat Sahib Sved Shah l\Iastershid Ali Al
Quadari (shortly, Hazrnt Sn.bib), the first Mut.awalli 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 fath<·r as Sajjadanashin, being his
eldest son, made an application to the Commissioner
'
under the Bengal Wakf Act. His yotrnger brother,
Syed Shah Rushaid Ali Al Quarlari, opposed his claim,
the ground being that be was nominated as the successor by Hazrat Sahib. vVhile this controversy was
afoot, the Commissioner, acting under s. 40 of the
Bengal Wakf Act, appointed Syed Shah Rasheed Ali
Al Qnarlari (the third son of Hazrat Sahib) as a temporary i\Iutawalli. The appellant then moved a petition
in the C>1.lcutta High Court under Art. 226 ofthe 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 Chakrava.rti, C. J. and Lahiri, J. (as he then
3 S.C.R.
SUPREME COURT REPORTS
761
was), the order of Sinha, J. was reversed, and the
I96z
petition was dismissed. This appeal has been filed H
-
· · h
' 1
azrat Syed Shah
wit spema leave.
Ma•tershid Ali
It is contended in this appeal that the order of the
Al Quadari
Commissioner appointing a temporary Mutawalli was
v.
illegal, because under the Rules framed by the GovernCommissioner of
ment, ouly the Board constituted under the Bengal
Wakfs,
Wakf Act could make the appointment. This arguWest Bengal
ment, in our opinion, is wholly unsound. The learned Hidayatullah J.
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

## Text

3 S.C.R.
SUPREME COURT R.EPORTS
759
arise on the pleadings. Evidently, any decision given
by the High Court in the course of the order would
not in that trial de nova be binding and the cases will
have to be tried afresh by the Civil Judge. The High
Court. was of the view that the interpretation of
para. 3 of the first schedule of the Indian Arbitration
Act rnised a substautbl question of law. But by the
direction of the High Court, this quest.ion was also left
open to be tried before the Civil Judge.
We fail to
appreciate how an observation on a question which is
directed to be retried can still be regarded as raising a
question of law of great public or private. importance
justifying grant of a certificate under Art. 133 (1) (c) of.
the Constitution.
We accordingly vacate the certificate granted by
the High Court and dismiss these appeals with costs.
One hearing fee.
Appeals dismissed.
HAZRAT SYED SHAH MASTERSHlD ALI
AL QUADARI
v.
THE COMMISSIONER OF W AKFS,
WEST BENGAL.
(J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)
M utawalli - Temporary. appointment-II' hen can be made by
the Commissioner-Delegation of powers-Duty interwoven rvith
power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),
SS. 29, 40.
During controversy between two brothers each of \Vhom
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
IV! /s. f ethanand
and Sons
v.
State of
littar Pradesh
Shah J.
Ig61
February 6.
760
SUPREME COURT REPORTS
[1961)
1961
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
Hazrat Syed Shah Commissioner, and once the delegation is made the rules cease
Mastershid Ali to apply.
Al Quadari
f
.
Held,
urther, that where power and duty are rnterv.
Ctnnmissioner of
Wakfs,
Wesl Bengal
connected 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 JuRisDlC'l'ION:
Civil Appeal No.
237 of 1956.
Appeal by special leave from the judgment and
order dated December 13, 1954, of the Ca.Jcutta High
Court in Appeal from Original Order No. 117 of 1954.
B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the
appellant.
B. 0. Mitter and D. Mukherjee, for respondent
No. l.
1961. February 6. The Judgment of the Court was
delivered by
Hidayat1tllah J.
HIDAYATULLAH, J.-This appeal is as much without
subRtance, as it was unnecessary.
Hazrat Syed
Mastershid Ali Al Quadctri (the appellant) is the eldest
son of one Hazrat Sahib Sved Shah l\Iastershid Ali Al
Quadari (shortly, Hazrnt Sn.bib), the first Mut.awalli 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 fath<·r as Sajjadanashin, being his
eldest son, made an application to the Commissioner
'
under the Bengal Wakf Act. His yotrnger brother,
Syed Shah Rushaid Ali Al Quarlari, opposed his claim,
the ground being that be was nominated as the successor by Hazrat Sahib. vVhile this controversy was
afoot, the Commissioner, acting under s. 40 of the
Bengal Wakf Act, appointed Syed Shah Rasheed Ali
Al Qnarlari (the third son of Hazrat Sahib) as a temporary i\Iutawalli. The appellant then moved a petition
in the C>1.lcutta High Court under Art. 226 ofthe 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 Chakrava.rti, C. J. and Lahiri, J. (as he then
3 S.C.R.
SUPREME COURT REPORTS
761
was), the order of Sinha, J. was reversed, and the
I96z
petition was dismissed. This appeal has been filed H
-
· · h
' 1
azrat Syed Shah
wit spema leave.
Ma•tershid Ali
It is contended in this appeal that the order of the
Al Quadari
Commissioner appointing a temporary Mutawalli was
v.
illegal, because under the Rules framed by the GovernCommissioner of
ment, ouly the Board constituted under the Bengal
Wakfs,
Wakf Act could make the appointment. This arguWest Bengal
ment, in our opinion, is wholly unsound. The learned Hidayatullah J.
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 a Mutwalli
the Board, subject to any order of a competent
Court, may appoint for such period as it thinks fit a
person to act as Mutwa!li."
Section 29 provides :
"The Board may, from time tu 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
resolution :
" (2). In exercise of the powers vested in them
under Section 29 of the A~t, 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
SUPREME COURT REPORTS
[1961]
r96r
delegated to the Commissioner, by the Commissioner.
H azrae-;-;,d Shah The appellant contends that the Cum missioner can
1•
Mas!ershidAli only make a report to the Board, and the Board alone
AIQuadan
can make the appointment, and refers to two Hules
v.
framed by Government. These Rules are :
Ccmmissioner of
"l. If it appears to the Commissioner that there
Wakfs,
is no mutwalli, in the ease of any wakf~ or that a
IVest Bengal
a vacancy in the office of the mutw<tlli h,w been
Hidayatullah J.
caused by death, resignation, retirement or removal
of the 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 \Vakf, he may institute an enquiry
,
and report the result thereof to the Board with his
\c
recommendation.
2.
On receipt of the report and the recommendation from tlw Commissioner, or on il:; 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 recommendaii
tion, but the Board alone was empowered to appoint
a temporary l\Iutawalli under s. 40. The last words
of the second Huie, 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 rnadA, the
Commissioner acts for and on behalf of the Board,
and the Rules cease to apply. The Hules cannot
affect the power of the Board to delegate its fun<>tions
under s. 29, and harmonious construction requires
that the Iiules should give way, when there is a delegation of the powers of the Board. The Commissioner
was thus competent to make the appointment.
Mr. Sen, however, contencls 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 canclida.te."
The word " impediment" means hindrance or obstruction, and there was certainly an
obstruction to th" appointment of a perooanent
3 S.C.R.
SUP.REME COURT REPORTS
763
Mutawalli, while the dispute remained undecided.
r96r
This point has no force whatever.
-
The question which seemed to have largely engaged HaMzrat Syedd sh.ah
t
.
.
h H. h C
1
h h
th d 1
as Im hi Ali
a tent10n m t e
1g
ourt, name y, w et er
e e eAl Quad•ri
gation was only of powers or also of duties of the
v.
Board, was not argued before us, though it formed the Commissioner of
subject of considerable discussion in the statements of
Wakfs.
the case. It is without substance. Where powers and
West Bengal
duties are interconnected and it is not possible to Hidayatullah f·
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 i\ the duties.
The proposition hardly needs authority ; but if one
were necessary, reference may be made to Mungoni
v. Attorney-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.
Appeal dismissed.
MAHANTH RAM DAS
v.
GANGA DAS.
(J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)
Court Jee-Appeal to stand dismissed if court Jee not paid
within time granted-Extension of time, if can be granted-Code of
Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.
The High Court passed a peremptory order that "the appeal
will stand dismissed " if a certain amount of court fee was not
paid within the time granted by the court. The appellant being
unable to find money made an application for extension of time
before the expiry of the time granted, Md offering to make a
partial payment asked for further time, The application was
(r) [1060) A.C. 336
g8
I96I
February 7,