The Board constituted under the Bengal Wakf Act could delegate its powers and duties to the Commissioner, and once such delegation was made, the Commissioner could act on behalf of the Board and appoint a temporary Mutawalli under Section 40 of the Act.

Headnote:
BENGAL WAKF ACT - SECTION 40 AND 29 - APPOINTMENT OF TEMPORARY MUTAWALLI - DELEGATION OF POWERS AND DUTIES - RULES FRAMED BY GOVERNMENT - INTERPRETATION.
Fact of the Case:

The appellant, the eldest son of the first Mutawalli of a wakf, challenged the appointment of a temporary Mutawalli by the Commissioner under Section 40 of the Bengal Wakf Act, arguing that only the Board constituted under the Act could make the appointment.
Finding of the Court:

The Court held that the Commissioner was competent to make the appointment as the Board had delegated its powers and duties under Section 29 of the Act to the Commissioner.
Issues: Whether the Commissioner had the authority to appoint a temporary Mutawalli under Section 40 of the Bengal Wakf Act.
Ratio Decidendi: The Court interpreted Sections 40 and 29 of the Bengal Wakf Act and held that the Board could delegate its powers and duties to the Commissioner, and once such delegation was made, the Commissioner could act on behalf of the Board. The Court also held that the Rules framed by the Government, which required the Commissioner to make a report and recommendation to the Board before appointing a temporary Mutawalli, did not apply in cases where the Board had delegated its powers to the Commissioner.
Final Decision: The Court dismissed the appeal, holding that the Commissioner had the authority to appoint a temporary Mutawalli and that the appellant's challenge to the appointment was without merit.

Judgment

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 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 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 Ss. 40 and 29 of the Bengal Wakf Act. Section 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 Mutawalli the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as Mutawalli".

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 S. 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 :-

* * * * *

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 mutawalli under S. 40 of the Act".

It is argued that under the second Rule the Commissioner was boun

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