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Hazrat Syed Shah Mastarshid Ali Al Quadari v. Commissioner Of Wakfs, West Bengal And Others
Factual and Procedural Background
In 1931 a wakf was created for the maintenance of the shrine of a Muslim Pir at Midnapur, with Hazrat Syed Shah Mastarshid Ali Al Quadari (“Hazrat Sahib”) as its first Mutawalli. Upon his death, his eldest son, Hazrat Syed Mastarshid Ali Al Quadari (the appellant), claimed succession to the office of Sajjadanashin/Mutawalli. His younger brother, Syed Shah Rushaid Ali Al Quadari, asserted that he, not the appellant, had been nominated by their father.
While that dispute was pending, the Commissioner of Wakfs, acting under Section 40 of the Bengal Wakf Act, appointed the third son, Syed Shah Rasheed Ali Al Quadari, as temporary Mutawalli. The appellant challenged this appointment by filing a writ petition under Article 226 of the Constitution before the Calcutta High Court. A Single Judge (Sinha, J.) allowed the petition, setting aside the Commissioner’s order. On appeal, a Division Bench (Chakravarti, C.J. & Lahiri, J.) reversed the Single Judge and dismissed the petition. The present appeal to the Supreme Court was brought with special leave against that Division Bench judgment.
Legal Issues Presented
- Whether, under the Bengal Wakf Act, the Commissioner of Wakfs could validly appoint a temporary Mutawalli when the Board of Wakfs had delegated its powers under Sections 29 and 40 to him.
- Whether the existence of rival claims to the office constituted an “impediment” justifying the appointment of a temporary Mutawalli under Section 40.
Arguments of the Parties
Appellant's Arguments
- The Commissioner’s appointment was unlawful because Government rules required him only to report to the Board; the Board alone could make the appointment under Section 40.
- No “impediment” to the appointment of a permanent Mutawalli existed; there was merely a challenge to the appellant’s claim, which did not justify resort to a temporary appointment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mungoni v. Attorney-General of Northern Rhodesia (1960 AC 336) | Delegation of powers necessarily carries the connected duties when the two are inseparable. | Used to support the view that once the Board had delegated its Section 40 powers to the Commissioner under Section 29, both the power and the duty to appoint a temporary Mutawalli vested in the Commissioner. |
Court's Reasoning and Analysis
The Court examined Sections 40 and 29 of the Bengal Wakf Act together with the Board’s resolution dated 24-4-1936 expressly delegating its Section 40 powers to the Commissioner. It held:
- Section 29 permits the Board to delegate both its “powers and duties.” Once delegated, the Commissioner acts for and on behalf of the Board.
- Government rules requiring the Commissioner to report and the Board to appoint apply only where no delegation has been made. They cannot override a valid statutory delegation.
- The presence of rival claimants constituted a clear “impediment” to the appointment of a permanent Mutawalli within the meaning of Section 40, justifying temporary management.
- Questions over whether duties, as distinct from powers, could be delegated were immaterial because where powers and duties are intertwined they must travel together; the precedent in Mungoni was cited in support.
- The appellant’s repeated litigation over a temporary order, while the substantive succession dispute remained undecided, was characterised as unnecessary and without substance.
Holding and Implications
Appeal dismissed. The Supreme Court affirmed the Division Bench judgment, upholding the Commissioner’s appointment of a temporary Mutawalli. Costs were awarded against the appellant.
Implications: The decision confirms that, under the Bengal Wakf Act, the Board of Wakfs may delegate both its powers and its associated duties to the Commissioner, including the power to appoint a temporary Mutawalli when an impediment exists. The ruling affects the parties immediately but does not announce any broader doctrinal innovation beyond reinforcing principles of statutory delegation.
Hidayatullah, J.— This appeal is as much without substance, as it was unnecessary. Hazrat Syed Mastarshid Ali Al Quadari (the appellant) is the eldest son of one Hazrat Sahib Syed Shah Mastarshid 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 successor by Hazrat Sahib. While this controversy was afoot, the Commissioner, acting under Section 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 Article 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 was), the order of Sinha, J., was reversed, and the petition was dismissed. This appeal has been filed with special leave.
2. 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.
3. 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 Mutawalli 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 Mutwalli.”
Section 29 provides:
“The Board may, from time to time, authorise 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 24-4-1936, 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.”
4. 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 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 vacancy in the office of the mutwalli has been 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 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 Section 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 Section 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 Section 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 Mutawalli, while the dispute remained undecided. This point has no force whatever.
5. 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. Attorney-General of Northern Rhodesia (1960) AC 336.
6. 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.
7. The appeal fails, and is dismissed. The appellant shall pay the costs of the respondents, who have entered appearance.
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