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PETITIONER: HAZRAT SYED SHAH MASTERSHID ALI AL QUADARI

       Vs.

RESPONDENT: THE COMMISSIONER OF WAKFS, WEST BENGAL.

DATE OF JUDGMENT: 06/02/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR 1095            1961 SCR  (3) 759  CITATOR INFO :  F          1963 SC1581  (5)

ACT: 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.

HEADNOTE: 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.

JUDGMENT: 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

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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 resolution :               "  (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

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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 the appointment. 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.

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The appeal fails, and is dismissed.  The appellant shall pay the costs of the respondents, who have entered appearance.                                    Appeal dismissed.