Judgment

HIDAYATULLAH, J. :- In these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26, 1962 by which a Full Bench of the Court, specially constituted to hear and determine certain petitions under Art. 226 of the Constitution involving a common point of law, discharged the Rule issued earlier in them. These cases were concerned with Muslim wakfs in which either the ultimate benefit to charity is postponed till after the exhaustion of the wakif s family and descendants or the income from the wakf estate is applied for the maintenance of the family side by side with expenditure for charitable or religious purposes. The common question which arose and still arises is whether these wakfs are affected by the passing of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954). That Act, in common with similar Acts of other States in India abolished from a date notified by the State Government all intermediaries such as promoters, tenure-holders, etc., between the raiyat and the State and vested the estates and the rights of the intermediaries in the State free from all encumbrances. Section 3 of the Act provided that the Act was to have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary. There were, however, some exceptions and one such exception was that an intermediary was entitled to retain, with effect from the date of vesting, land held in khas under a trust or endowment or other legal obligation exclusively for a purpose which was charitable or religious or both.

2. Notices under S. 10 (2) of the Act were issued by the Collectors in charge, Estate Acquisitions, to the respective Mutawallis informing them that after the notification issued on November 11, 1954 under S. 4 of the Act there was extinction and Caesar of the estate and rights of these intermediaries and their divested estates and rights vested in the State. The Mutawallis were called upon by the said notice or order to give up possession of these estates and interests within 60 days of the service of the order, to the officer empowered by the Collector in this behalf. The orders also specified in schedules appended thereto, the details of such properties, interests and rights. Notices of this kind were issued to Fazlul Rabbi Pradhan, Mutawalli of Abdul Karim Wakf Estate, who is appellant in Civil Appeal No. 392 of 1964, and to Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant in Civil Appeal No. 393 of 1964. Similar notices were issued to other mutawallis in respect of other wakfs. The mutawallis appeared in answer to the notices and objected to them. They claimed that they were protected by S. 6 (1) (I) of the Act (to which detailed reference will be made presently) as they were holding the properties exclusively for purposes which were charitable or religious or both. This claim was not accepted by the Collector, Estate Acquisitions, and appeals to the Commissioner also failed. The orders of the Collector and the Commissioner are dated February 24, 1956 and January 18, 1958, respectively.

3. The appellants after serving notices of demand for justice filed petitions in the High Court under Art. 226 of the Constitution. The petitions came up for hearing before D. N. Sinha, J. and were referred, on his recommendation, to a Full. Bench consisting of Bachawat, D. N. Sinha and P.N. Mookerjee, JJ. These learned Judges by separate but concurring judgments held that the wakfs in question were not protected by S. 6 (1) (1) as they were not exclusively for purposes which were charitable or religious or both and discharged the Rule. The cases were, however, certified under Art.133 (1) (a) and (c) of the Constitution and these two appeals were filed .

4. It is not necessary to state how the Act is constructed for the only question is whether the w