HAZRAT SYED SHAH MASTERSHLD ALI AL QUADARI versus THE COMMISSIONER OF W AKFS, WEST BENGAL.

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 was), the order of Sinha, J. was reversed, and the petition was dismissed. This appeal has been filed · · h ' 1 wit spema leave.

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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, ouly 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.

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We are concerned with sections 40 and 29 of the Bengal Wakf Act. Section 40 reads as follows:

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"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

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person to act as Mutwa!li." Section 29 provides :

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"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

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under this Act." On April 24, 1936, the Board adopted the following resolution :

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" (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:-

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* • •

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(c) The powers of this Board under section 40 to appoint a temporary mutwalli."

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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 delegated to the Commissioner, by the Commissioner. The appellant contends that the Cum missioner can only make a report to the Board, and the Board alone can make the appointment, and refers to two Hules framed by Government. These Rules are :

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"l. If it appears to the Commissioner that there is no mutwalli, in the ease of any wakf~ or that a

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a vacancy in the office of the mutw<tlli h,w been 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 recommendation.

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2. On receipt of the report and the recommendation from tlw Commissioner, or on own motion, the Board may appoint a mutwalli under section 40

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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 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 Mutawalli, while the dispute remained undecided. This point has no force whatever.

pp. 762–763

The question which seemed to have largely engaged

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. . h H. h C 1 h h th d 1 a tent10n m t e t 1g ourt, name y, w et er e e egation 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 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 (

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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.

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Appeal dismissed. MAHANTH RAM DAS

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v.

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GANGA DAS. (J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)

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Court Jee-Appeal stand dismissed if court not paid within time granted-Extension of time, if can granted-Code of Civil Procedure, r908 of r908). ss. r48, I49, I5I, 0. 47,

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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 time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was

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