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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • M.H. Beg
  • S. Sadiqali
Judges
  • Mootham, C.J
  • Raghubar Dayal, J.
Acts
  • provisions of the U.P Muslims Waqfs Act No. XIII of 1936 (hereinafter called the Act)
  • Sec. 4 of the U.P Zamindari Abolition and Land Reforms Act
  • Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936.9.
  • Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936.
  • Sec. 59(2) of the Muslim Waqfs Act, 1936,
  • Sec. 59(2) of the U.P Muslim Waqfs Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • M.H. Beg
  • S. Sadiqali
Judges
  • Mootham, C.J
  • Raghubar Dayal, J.
Acts
  • provisions of the U.P Muslims Waqfs Act No. XIII of 1936 (hereinafter called the Act)
  • Sec. 4 of the U.P Zamindari Abolition and Land Reforms Act
  • Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936.9.
  • Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936.
  • Sec. 59(2) of the Muslim Waqfs Act, 1936,
  • Sec. 59(2) of the U.P Muslim Waqfs Act
See more information ...
Smart Summary

Judgment Summary — Sunni Central Waqf Board, U.P. v. Respondents (Special Appeal)

Factual and Procedural Background

Sixteen persons (respondents) filed a petition under Article 226 of the Constitution alleging themselves to be the khadims (mutwallis) of the Dargah Badruddin Shah Wilayat Saheb, Budaun. The U.P. Sunni Central Waqf Board (the Board) had earlier declared the Dargah a waqf under the U.P. Muslims Waqfs Act, 1936 (the Act). This declaration led to a civil suit (No. 56 of 1945) by respondents Nos. 1–5 against the Board, which was settled by a compromise on 30 August 1952. A second compromise on 8 November 1952 included respondents Nos. 6–10 as mutwallis subject to similar terms.

The waqf property largely vested in the Government under a vesting order under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act in 1952; annuities were payable. By May 1955 differences among the ten mutwallis had prevented agreement on receipt/distribution of annuities and arrangements for the upcoming annual Urs. On 9 May 1955 a Compensation Officer indicated by telegram that payment of annuity could be made to the Board after suspension of the mutwallis. On 10 May 1955 the President of the Board issued an order purportedly under Section 59(2) of the Act superseding the Board of mutwalli-khadims for the named waqfs and directing Inspector Sri Rafiq Ahmad to receive the annuity and carry out waqf objects until further orders of the Board.

The respondents challenged that order by petition under Article 226; Mr. Justice Chaturvedi held the President's order to be a nullity and directed the Board not to enforce it (issuing a writ of mandamus). The Board and Sri Rafiq Ahmad appealed against that decision. This appeal was heard by R. Dayal, J., whose reasons are summarized below.

Legal Issues Presented

  1. Whether the President's order dated 10 May 1955 purporting to supersede the Board of mutwalli-khadims and to assume direct superintendence of the waqf affairs was intra vires the Board under Section 59(2) of the U.P. Muslim Waqfs Act, 1936.
  2. Whether the ten respondents constituted a "committee" in which "the supervision of a waqf is vested" within the meaning of Section 59(1), such that the Board could validly supersede them under Section 59(2).
  3. Whether the Board had power to remove or supersede the mutwallis under other provisions of the Act, specifically Section 56 (appointment in case of vacancy or dispute) or Section 18 (general superintendence), or otherwise.
  4. Whether the impugned order should be quashed by the Court (rather than preserved or left intact), and whether a writ of mandamus is the appropriate remedial form.
  5. Procedural point raised on appeal: whether the President who passed the impugned order was a necessary party to the proceedings (raised but not allowed to be taken by the court since it was not earlier pleaded).

Arguments of the Parties

Respondents' Arguments

  • The respondents contended that they could not be removed from the office of mutwalliship without notice and an opportunity to explain their conduct.
  • They argued the Board purported to act under Section 59 of the Act, but their case was not governed by that section and the Board had no jurisdiction to dismiss them under it.
  • They maintained that there was no committee within the meaning of Section 59, so Section 59(2) could not be validly invoked to supersede them.

Appellants' (Board's) Arguments

  • The Board contended that the President's order under Section 59(2) was valid because the mutwallis amounted to a committee which could be superseded when it did not function properly.
  • The Board also advanced that Section 56 empowered the Board, in circumstances of dispute over the right to act as mutwalli, to appoint a person to act as mutwalli (argued to support removal/appointment actions).
  • It was further urged that the Board could act under Section 18 (general superintendence) to assume control or otherwise ensure proper administration; alternatively, the impugned order could be treated as an exercise of the Board's Section 18 powers.
  • On appeal the Board raised a procedural objection that the President (who signed the impugned order) was not a party and therefore his absence was a ground to challenge the order — this point was not permitted to be raised as it had not been pleaded earlier.
  • Finally, it was contended that the impugned order was an administrative order and, given doubts about its quasi-judicial character and the respondents' failure to appeal against the single judge's rejection of certain reliefs, the order should not be quashed; the Board urged that mandamus or other remedies might be inappropriate.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ram Charan Lal (Applicant) v. The State of Uttar Pradesh (Opposite-Party), 1952 A.L.J.R. 319, 321 Shows that administrative orders may be quashed by the Court in exercise of powers under Article 226 even if they are administrative in character; supports quashing where order is passed without jurisdiction affecting petitioner. The court relied on this authority to justify that an administrative order made without jurisdiction which adversely affects the petitioner may be set aside under Article 226; it supported the decision to quash the impugned order rather than leave it in force.
Rameshwar Prasad Kedarnath v. The District Magistrate, A.I.R. 1954 All. 144 Similar principle referenced: administrative orders can be quashed by High Court under Article 226; court may exercise general powers to issue directions and orders to quash administrative acts done without jurisdiction. The court cited this authority alongside Ram Charan Lal to reinforce the proposition that the impugned administrative order could be quashed under Article 226 and that such relief was appropriate where an order had been made without jurisdiction.

Court's Reasoning and Analysis

The Court engaged in a textual and contextual analysis of the relevant provisions of the U.P. Muslim Waqfs Act, 1936, and the facts surrounding the impugned order.

  1. Interpretation and prerequisites of Section 59:
    • The Court identified three necessary conditions for Section 59(1) to apply: (a) the supervision of a waqf must be vested in a committee, (b) such a committee must have been in existence when the section came into force, and (c) such committee must have been appointed by the waqf or by a competent court or authority.
    • The Court found none of these conditions satisfied: the ten mutwallis were appointed in 1952 (long after the Act and relevant sections came into force), so they did not exist at the critical earlier date; and they had not been appointed as a "committee of supervision" by a waqf or competent authority as required.
  2. Distinction between "committee of supervision" and "committee of management":
    • The Court analyzed statutory definitions, noting that the ten respondents were described and appointed as mutwallis — a term defined in the Act as meaning a manager of a waqf (and including a committee of management).
    • The Court held the mutwallis constituted a committee of management rather than a committee of supervision; Section 59 is concerned with supersession of committees in which supervision was vested, i.e., committees charged with supervision of the mutwallis' management, not the management body itself.
    • The Court observed that the Inspector of the Board, in affidavits, referred to the body as a committee of management rather than supervision, corroborating the distinction.
  3. Consequences under Section 59:
    • The Court noted Section 59(2) contemplates supersession of a committee of supervision and that upon such supersession the Board assumes the supervision previously exercised by that committee; it did not contemplate simultaneous supervision by both the committee and the Board.
    • Since respondents did not constitute a committee contemplated by Section 59(1), they could not validly be superseded under Section 59(2).
  4. Analysis of Section 56:
    • Section 56 authorizes the Board to appoint a person to act as mutwalli when there is a vacancy or when the right to act as mutwalli is disputed. The Court held this section merely authorizes appointment in such circumstances and does not grant power to remove a mutwalli.
    • The impugned order was not an order which could be made under Section 56, and therefore Section 56 did not validate the President's action.
  5. Analysis of Section 18:
    • Section 18(1) vests general superintendence of waqfs in the Central Board and empowers it to "do all things reasonable and necessary to ensure" proper maintenance and administration of waqfs. The Court emphasized that "superintendence" denotes oversight and supervision of management, not direct assumption of management.
    • The Court concluded Section 18 confers supervisory powers (to ensure proper management by others), not a general power to remove mutwallis or to assume their direct management absent special circumstances (such as a vacancy or appointment under Section 56).
    • The Court observed that if Section 18 were read to permit summary removal of mutwallis, then other specific provisions (Clauses (e) and (f) of Section 18(2), and Section 58) would be rendered unnecessary or redundant. The existence of those provisions shows the Legislature envisaged litigation or specific procedures for removal rather than unilateral summary removal under Section 18(1).
  6. Conclusion on jurisdiction:
    • On the combined statutory reading, the Court held the President's order dated 10 May 1955 purporting to supersede the mutwallis under Section 59(2) was made without jurisdiction and was therefore a nullity.
  7. Procedural and remedial points:
    • The Court refused to allow the appellants to raise, belatedly on appeal, the point that the President was not a party to the proceedings; this point had not been raised earlier before the single Judge nor in the memorandum of appeal.
    • The appellants' contention that the order should not be quashed because it was merely administrative was considered. The Court relied on authorities (Ram Charan Lal and Rameshwar Prasad Kedarnath) to state that administrative orders passed without jurisdiction and adversely affecting the petitioner can be quashed under Article 226.
    • The Court preferred to quash the impugned order in substitution for the order of the learned single Judge (which had issued mandamus) and saw no special reason not to set aside the void order.

Holding and Implications

Holding: The appellate court held that the order of the U.P. Sunni Central Waqf Board dated 10 May 1955, purporting to supersede the Board of mutwalli-khadims under Section 59(2) of the U.P. Muslim Waqfs Act, 1936, was made without jurisdiction and was therefore a nullity. The Court dismissed the appeal with costs and, in substitution for the single Judge's order, quashed the Board's order dated 10 May 1955.

Implications:

  • The direct effect of the decision: the impugned order of 10 May 1955 by the President of the Board is quashed and the Board's appeal is dismissed with costs.
  • The Court emphasized statutory limits on the Board's powers: Section 59(2) applies only to committees in which supervision of the waqf is vested and not to mutwallis constituting a committee of management; Section 56 does not authorize removal of a mutwalli; Section 18 confers supervision but not summary removal or direct assumption of management except as provided elsewhere in the Act.
  • The Court preferred to quash the void administrative order under Article 226 rather than leave it in force or issue a writ of mandamus; it relied on existing authorities to support that administrative orders made without jurisdiction affecting petitioners ought ordinarily to be set aside.
  • No claim is made in the opinion that this disposition establishes a broader new precedent beyond the statutory interpretation and remedial application in the facts of this case; the Court confined itself to applying the Act's provisions and established principles regarding jurisdiction and quashing of void administrative acts.

Disposition in the opinion: Appeal dismissed; impugned Board order dated 10 May 1955 quashed; costs awarded against the appellants.

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    Sunni Central Waqf Board v. Intizar Husain

    R. Dayal, J.:— This is a Special Appeal by the Sunni Central Waqf Board, U.P (hereinafter referred to as the Board) and Sri Rafiq Ahmad, Inspector of Waqfs, against the order of Mr. Justice Chaturvedi holding the order of the President of the Board, dated the 10th of May, 1955, a nullity and issuing a writ of mandamus directing the Board not to enforce that order and not, in any way, to interfere with the rights of the respondents Nos. 1 to 10.

    2. Sixteen persons, the respondents in this appeal, filed a petition under Art. 226 of the Constitution against the two appellants alleging themselves to be the khadims of the Dargah Badruddin Shah Wilayat Saheb in the city of Budaun, a religious institution mainly visited on the occasion of the annual Urs in the month of Ramzan by pilgrims. Pilgrims also visit the Dargah on other ceremonial occasions. The Board declared the Dargah to be a waqf to which the provisions of the U.P Muslims Waqfs Act No. XIII of 1936 (hereinafter called the Act) applied. This led to the institution of a civil suit No. 56 of 1945 by respondents Nos. 1 to 5 in the Court of the Civil Judge, Budaun, against the appellant Board. A compromise was arrived at between them and the Board on the 30th of August 1952. Such terms of the compromise as are mentioned in the affidavits filed on behalf of the parties are:—

    “1. That the plaintiffs agree that the property which is the subject matter of the suit is Waqf for public benefit and the Waqf is governed by the Muslim Waqfs Act of 1936. The property is intended for “umoork-hair” (works of general benefit for the public) and it will be utilised in future for “umoor khair” only. (vide paragraph No. 8 of the counter-affidavit).

    2. (a) Intizar Husain, Utifat Husain, Arshad Ali, Imtiaz Husain and Intizam Husmil will act as mutwallis of the waqf properties.

    (b) The Government dues will be paid out of the income of the waqf properties.

    (c) Out of the income left after the payment of the Government dues, one third will be appropriated by the mutwallis, the khadims and their successors, which they will spend in the manner they choose. Besides the persons named in the compromise, if any body was held entitled to benefits as Khadim, under the waqf, he will be paid out of this ⅓rd allocated for them and the ⅔rd will not be affected thereby. The opposite party will not charge or levy any contribution or liability upon the Khadims in respect of this ⅓rd portion of the income.

    (d) The remaining ⅔rd of the income of the waqf property will be spent for the objects of the Dargah, including Urs etc., according to the budget, prepared by the mutwallis and approved by the opposite party No. 1. The accounts will be audited at the end of the year. The contribution shall be leviable upon the ⅔rd of the income of the waqf properties allocated for purposes of the Dargah and for the payment of this contribution the mutwalli shall be liable.

    (e) As to the arrears of the contribution, the mutwallis were allowed to pay it up by annual installments of Rs. 200/-.” (vide paragraph 10 of the affidavit of Imtiaz Husain).

    3. A second compromise was arrived at on the 8th of November, 1952 between respondents Nos. 6 to 10 and the Board whereby these five persons were also to be mutwallis subject to the same conditions and liabilities which applied to the previous five mutwallis. Reference need not be made to the conduct of these mutwallis or any action taken by the Board till 1955. Suffice it to say that it is alleged by the Board that the mutwallis did not discharge their duties properly in various ways.

    4. The property of the waqf in suit consisted mostly of zamindari property. It vested in the Government on a vesting order being made under Sec. 4 of the U.P Zamindari Abolition and Land Reforms Act in 1952. The waqf was entitled to receive annuities. A question arose in 1957 as to whom should be paid these annuities, especially as the ten mutwallis were not united and had differences among themselves. They had not come to any agreed solution by the 9th of May, 1955, four days before the commencement of the annual Urs which was to commence on the 13th of May. The mutwallis were anxious to get the money in order to make proper arrangements. The district authorities were concerned about the proper arrangements of the Urs. The Board itself was also anxious to see that the Urs celebrations took place properly and that they should not suffer for want of funds. It was concerned in the payment of the annuities.

    5. Ultimately on the 9th May the Compensation Officer sent a telegram to the Secretary of the Board saying that payment of annuity can be made to the Board after suspension of mutwallis. The President of the Board then made the impugned order on the 10th of May, 1955. This order is:

    “A telegram has been received by the Secretary from the Compensation Officer that “payment of annuity can be made to the Board after suspension of Mutwallis”. The situation is peculiar and one of urgency. On the one hand the Mutwalli-Khadims are hopelessly divided between themselves-one section not recognising the other-and in the absence of unanimity payment cannot be made to any one of the two sections. On the other and, the annual ‘Urs’ is near at hand and only four days are left for arrangements to be completed for the celebration of the annual ‘Urs’ and connected ceremonies. If nothing is done by the Board, the objects of the Waqfs will grieviously suffer. In these circumstances, and in the exercise of the power of the Board delegated to me, I supersede under Sec. 59(2) of the Muslim Waqfs Act, 1936, the Board of Mutwalli-Khadims of waqf Nos. 223 and 224 regarding Waqfs Dargah Sultanul Arfin and Hazrat Shah Wilayat Saheb, Budaun and assume direct superintendence of the affairs of these waqfs under Sec. 18(1) of that Act. Sri Rafiq Ahmad is directed to receive payment of the annuity from the District Magistrate or the compensation Officer, as the case may be, and carry out the objects of the waqfs until further orders of the Board.

    6. Dated 10-5-1955

    Sd. Niamat Ullah President.

    U.P Sunni Central Board of Waqfs, Lucknow.”

    7. It is this order which the respondents prayed should be quashed by their petition under Art. 226 of the Constitution.

    8. Their main contention was that the removal of respondents Nos. 1 to 10 from the office of mutwalliship was illegal on the ground that:

    “The applicants Nos. 1 to 10 could not be removed from the office of mutwalliship, without notice or opportunity being given to them to explain their conduct. The opposite party No. 1 purported to act under Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936. The applicant's case is not governed by the said section and the opposite party No. 1 had no power or jurisdiction to dismiss the applicants Nos. 1 to 10. There is no committee, within the meaning of Sec. 59 of the U.P Muslim Waqfs Act No. 13 of 1936.”

    9. The Board contested the petition on the ground that the order of the President under Sec. 59(2) of the U.P Muslim Waqfs Act was valid, the mutwallis forming a committee of management.

    10. Mr. Justice Chaturvedi agreed with the contention for the respondents that the Board had no jurisdiction to remove any mutwalli and that its proper course in such circumstances was either to bring a suit itself under Sec. 92 of the C.P.C for the removal of the mutwallis or to grant sanction to some other persons to bring such a suit. He further held that under Sec. 59 of the Act the Board could supersede committees of supervision but not a committee of management or a committee of mutwallis, and that the mutwallis, respondents Nos. 1 to 10, did not constitute a committee of supervision and therefore the impugned order was made by the Board without jurisdiction and was ineffective. The learned Judge consequently issued the writ of mandamus already referred to. The Board appeals.

    11. The impugned order is made by the President under sub-sec. (2) of Sec. 59 of the Act. Naturally great reliance is placed on the provisions of this sub-section by Mr. Beg, the learned counsel for the Board appellant. Sec. 59 of the Act reads thus:—

    “59.(1) Whenever the supervision of a waqf is vested in any existing committee appointed by the waqf or any competent court or authority, such committee shall, notwithstanding anything in the Act, continue to function until superseded by the Central Board under sub-sec. (2): Provided that such committee shall be under the control of the Central Board and shall abide by such directions of the Central Board as are not inconsistent with any directions of the waqf or of the court or authority appointing such committee.

    (2) The Central Board may supersede any such committee as aforesaid if it does not in its opinion function properly and satisfactorily, and on such supersession any decree or order of a court or competent authority under which such committee has been constituted shall cease to have any force.

    (3) An order passed by a Central Board under sub-sec. (2) shall be final and shall not be questioned in any court of law.”

    12. It is necessary for the application of the provisions of this Sec. (1) that the supervision of a waqf be vested in a committee (2) that such a committee be in existence when the section came into force, and (3) that such a committee be appointed by the ??? or any competent court or authority.

    13. We are of opinion that none of these conditions is fulfilled in this case. No committee for the supervision of the waqf was appointed by the waqf. If the recognition of the ten respondents as mutwallis under the compromise of 1952 constituted a committee of supervision contemplated by Sec. 59, that committee came into existence in 1952 and did not exist at the time when this Act came into force in 1936 or when Secs. 5 to 71 came into force on the 1st of July, 1941.

    14. These mutwallis did not constitute a committee of supervision. It was not the supervision of the waqf which was to be done by the committee of the mutwallis but it was the management of the waqf which this body of mutwallis had to undertake. “Mutwalli” means, according to clause (3) of Sec. 3 of the Act, “a manager of a waqf or endowment and includes an amin, a sajjadanashin, a khadim, naib-mutwalli and a committee of management, and, save as otherwise provided in this Act, any person who is for the time being in charge of, or administering, any endowment as such”. The ten respondents were appointed as ‘mutwallis’ which ordinarily means ‘managers of the waqf’. If those ten persons be deemed to constitute a committee of management, then the committee would be the mutwalli and not a committee of supervision. The act of supervision is distinct from the act of management. In this connection it is significant that in the counter-affidavit Sheikh Rafiq Ahmad, Inspector of the Board, opposite party No. 2, has scrupulously avoided stating that these respondents constituted a committee of supervision, though he referred to them in paragraph 8 as a committee of management.

    15. It may also be noted that in the impugned order the President of the Board says:

    “In these circumstances, and in the exercise of the power of the Board delegated to me, I supersede under Sec. 59(2) of the Muslim Waqfs Act, 1936, the Board of Mutwalli-Khadims of waqfs Nos. 223 and 224 regarding Waqfs Dargah Sultanul Arfin and Hazrat Shah Wilayat Saheb, Budaun.”

    16. In this connection we may make reference to the Preamble of the Act itself. The first paragraph of the Preamble runs I thus:

    “Whereas it is expedient to provide for the better governance and administration of certain classes of waqfs and the supervision of mutwallis' management of them in accordance with the waqfs' directions, in the United Provinces of Agra and Oudh”.

    17. The supervision contemplated by the Act is of the mutwallis' management.

    18. Sub-sec. (2) of Sec. 59 also provides for the consequences of the supersession of a committee in which the supervision of the waqf was vested. It says:

    “and on such supersession any decree or order of a court or competent authority under which such committee has been constituted shall cease to have any force”.

    19. It follows that when a committee of supervision has been superseded under sub-sec. (2) of Sec. 59 no further committee of supervision will be constituted. The result must be that the Board thereafter begins to exercise supervision, which till then was exercised by the committee of supervision subject to the terms of the proviso contained in sub-sec. (1) of Sec. 59. The Act did not contemplate the simultaneous supervision of the waqf both by the committee of supervision and the Board.

    20. We are therefore of opinion that the respondents did not constitute such a committee as was contemplated by sub-sec. (1) of Sec. 59 of the Act and that therefore they could not be superseded by the Board in the exercise of its power under sub-sec. (2) of Sec. 59 of the Act.

    21. It was contended for the appellants that the Board could remove the mutwallis in view of the provisions of Sec. 56 of the Act. This contention has no forte. Sec. 56 reads thus:

    “When there is a vacancy in the office of mutwalli of waqf and there is no one competent to be appointed under the terms of the deed of waqf, or where the right of any person to act as mutwalli is disputed, the Central Board may appoint any person to act as a mutwalli for such period and on such conditions as it may think fit.”

    22. The only power which the Board can exercise under this section is the power of appointing a person to act as a mutwalli for a limited period when there has occurred a vacancy in the office of a mutwalli of a waqf and there is no one competent to be appointed under the terms of the deed of waqf or where the right of any person to act as mutwalli is disputed. This section does not authorise the Board to remove a mutwalli. It only authorises the Board to appoint a mutwalli and that too only in certain circumstances. The impugned order is not, in our opinion, an order which could be made under the provisions of Sec. 56 of the Act.

    23. It has been then strenuously urged for the appellants that the impugned order can be considered to be a good order made by the Board in the exercise of the powers conferred on it by Sec. 18 of the Act.

    24. The impugned order does not purport to have been made in the exercise of the power of the Board under Sec. 18 of the Act. It was made under Sec. 59(2) of the Act. What the Board purported to do under Sec. 18(1) of the Act under this order was merely to assume direct superintendence of the affairs of the waqf and not to assume direct management of the waqf.

    25. Sub-sec. (1) of Sec. 18 is:

    “The general superintendence of all waqfs to which this Act applies shall vest in the Central Board-. The Central Board shall do all things reasonable and necessary to ensure that waqfs or endowments under its superintendence are properly maintained, controlled and administered and duly appropriated to the purposes for which they were founded or for which they exist.”

    26. According to this Sec. it is the general superintendence of the waqf which vests in the Board and not its direct; management. The word “superintendence” connotes supervision of the management. The word “to superintend” means, according to the Shorter Oxford English Dictionary, “to look after, oversee, supervise the working or management of (an institution etc.)”.

    27. What the Board is empowered by this section to do is to ensure that waqfs or endowments under its superintendence are properly maintained, controlled and administered. The use of the word “ensure”, which means “to make certain, to secure, or to guarantee”, signifies that the management is to be done by others and that the act of the Board is restricted to making certain that the others take suitable steps towards the proper maintenance, control and administration of the waqf or endowment.

    28. It follows that the power which Sec. 18 confers on the Board is a power of supervision and not a power of taking over the management itself.

    29. Even if it be held that the Board can take over the direct management of the waqf under Sec. 18 of the Act such a taking over of the direct management must be at a time when there be a vacancy in the office of the mutwalli of a waqf. Sec. 56 of the Act provides that when there be a vacancy in an office of the mutwalli of a waqf and there be no one competent to be appointed under the terms of the deed of waqf or where the right of any person to act as a mutwalli is disputed, the Board might appoint any person to act as a mutwalli for such period and on such conditions as it may think fit. Further the Board could not have taken over the management of the waqf in suit if its order superseding the mutwallis be a bad order and does not really create a vacancy in the office of the mutwallis. It is really this order of supersession of which the validity is to be justified by the appellant Board in these proceedings, and not its taking over the management of the waqf.

    30. Sec. 18 does not contemplate the supersession or removal of the mutwallis by the Board. Sub-sec. (2) of this section mentions a number of powers and duties of the Central Board and makes it clear that those are not the only powers and duties of the Board in view of the generality of the provision of sub-sec. (1). Cl. (e) of the sub-section gives the Board power to institute and defend suits and proceedings in a Court of law relating, among other matters, to the appointment and removal of mutwallis in accordance with the deed of waqf if it exists and putting the mutwallis in possession or removing them from possession. Clause (f) gives power to sanction the institution of suits under Sec. 92 of the C.P.C relating to waqfs to which this Act applies. The provisions of Cls. (e) and (f) would be unnecessary if the powers given to the Board under sub-sec. (1) include the power to remove mutwallis, for whenever the Board be of opinion that the mutwallis should be removed the Board could remove them itself instead of adopting the combersome procedure of instituting a suit in Court for their removal or of giving permission to others to institute a suit for the purpose.

    31. Reference may also be made to Sec. 58 of the Act which empowers the Board to remove a mutwalli from his office in certain circumstances. This section would also be redundant if the power of removal was given to the Board under Sec. 18 of the Act. We are therefore of opinion that the order of the Board dated the 10th of May, 1953 superseding the so-called Board of mutwalli-khadims was made without jurisdiction and was therefore a nullity.

    32. Mr. Beg wished to challenge the correctness of the order of the learned Judge on the ground that the President of the Board was not a party to these proceedings. It is alleged that it was he who passed the impugned order and he was a necessary party. We did not allow him to raise this point which had neither been urged before the learned Judge nor taken in the memorandum of appeal.

    33. Finally it has been contended for the appellants that we should not quash the impugned order as it was an administrative order, as the learned single Judge had not quashed it in view of his entertaining doubts whether it was a quasi-judicial order, and in view of the fact that the respondents had not appealed against the rejection of their prayer for the quashing of that order. It is also contended that no writ of mandamus can be issued even if the impugned order is void as it can be passed only to direct a party to perform its statutory duty or to refrain from doing what the statutes prohibit it from doing. Administrative orders cannot, it is true, be quashed by a writ of certiorari but such orders can be quashed by the Court in exercise of the general powers conferred upon it under Art. 226 of the Constitution to issue directions and orders: see Ram Charan Lal…(Applicant); v. The State Of Uttar Pradesh…(Opposite-Party). 1952 A.L.J.R 319, 321.. and Rameshwar Prasad Kedarnath v. The District Magistrate A.I.R 1954 All. 144.. An order passed without jurisdiction which adversely affects the petitioner ought ordinarily to be set aside. No special reasons exist for not setting aside the impugned order. The respondents had no grievance against the order passed by the learned Judge and therefore could not appeal against it. Their failure to appeal is no good reason for our not quashing the impugned order. We prefer the quashing of the order to the issuing of a writ of mandamus in the circumstances of the case.

    34. We therefore dismiss the appeal with costs but in substitution for the order of the learned Judge quash the order of the Board dated the 10th May, 1955.

    35. Appeal dismissed.

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