1. The facts in this case are as follows :
2. There is a Muslim Shrine located at Mirza Bazar in the town of Midnapur, stated to be the 'Majar Sharaf or tomb of a Peer or a Muslim Divine of the name of Syed Shah All Abdul Quader alias Syed Shah Morshed All. He and his family are for generations the spiritual preceptors of a Muslim religious order and have numerous disciples in India and Pakistan. Haz-rat Moulana Syed Shah irshad All Al Quadari, since deceased (hereinafter referred to as the 'Hazrat Sahib') was a direct descendant of the Peer of Midnapore and was the Sajjadanashin of the said order.
3. Two members of this order, Asraf Ali Khan Chaudhuri and Syed Abdus Salik, by two Deeds of Wakfs dated 9-5-1931 and 24-8-1933, respectively, created a wakf of premises No. 23 Khanka Shariff Lane, formerly known as 23 Gardner Lane, for the purpose of upkeep and maintenance of the holy shrine at Midnapur. Hazrat Sahib was to be the first mutwalli of the wakf and on his demise his male descendant who would be the Sajjadanashin of the said order was to be the mutwalli of this wakf. The Hazrat Sahib was also the mutwalli of a masque or Khankha situated at No. 22 Khanka Shariff Lane, but with this we have no direct concern in this application.
4. The Hazrat Sahib died on 6-2-1953. The petitioner Syed Shah Mustarshid Al Quadari is his eldest (surviving) son and he claims that according to custom he has become the Sajjadanashin of the sect and that he has been accepted as such by the disciples of Hazrat Sahib. The respondent No. 2 is the second son and he alleges that he has been appointed the Sajjadanashin by a Wasiatnama executed by the deceased. It is not disputed that whoever is the Sajjadanashin, would automatically be the mutwalli of all the wakf properties including premises No. 23 Khanka Shariff Lane. The petitioner applied to the Calcutta Corporation for mutation of his name in respect of the wakf properties. The respondent No. 2 objected thereto, but the Assessor to the Corporation, was not inclined to place reliance upon the Wasiatnama which he found to be undated, un-attested and unregistered and ordered that the name of the petitioner should be substituted in the place of his deceased father. This is the subject-matter of a separate application before me and I need not say anything further about it here.
5. The petitioner and respondent no. 2, both applied before the Commissioner of Wakfs for substitution of their respective names as mutwalli. The Commissioner of Wakfs heard the two applications together, upon evidence. There was examination and cross-examination of witnesses. Eventually the Commissioner of Wakfs rightly came to the conclusion that he could not suitably dispose of the matter and that he would not be justified in a summary enquiry to come to a decision on such a serious matter and it would be better if a decision of a competent court of law was obtained first and then an application made to him for necessary action. In his order dated 13-10-1953, he inter alia stated as follows :
"Coming now to the question as to who should be recorded as the Mutwalli in place and stead of the deceased Mutwalli. The main thing that concerns the Commissioner of Wakfs is the efficient administration of the wakfs pending final decision of the dispute relating to succession to the Sajjadanashin. The family is a highly respectable one, held in veneration by a considerable section of the people over a fairly large locality and it is to be regretted very much if the ruinous conflict be allowed to go on in-spite of the fact that the Murids and Motakids of the House include many prominent citizens of Calcutta and outside. The brothers also should realise the damaging effects of their fratricidal activities on the future of the family and themselves and make up their difference and restore normal conditions. In the meantime I would temporarily appoint under Section 40, Bengal Wakf Act 1934, the third surviving son of the late Mutwalli Syed Shah Rashad All Al Quadari to act as Mutwalli."
6. I fully share the feelings of the Commissioner of Wakfs, in respect of the somewhat unseemly struggle going on between the two brothers for a holy office. The matter has progressed very far and proceedings civil and criminal have been taken. I, however, suggested in vain that one or other of the parties should file a suit in a civil court and have the title cleared. Neither of the brothers seem to be willing to take the first step. The point taken by the learned Advocate-General is that the Commissioner of Wakfs has no jurisdiction to appoint a temporary mutwalli under Section 40 Bengal wakf Act. If such be the case, then however reluctant I might be, I have got to interfere, since a mutwalli cannot administer the wakf who has not been properly appointed in the eye of the law, and an appointment under a statute cannot be made in the absence of or in excess of jurisdiction conferred by it.
7. According to the Muslim law, a mutwalli can be appointed by :
(a) The founder of the wakf--He has the power to appoint the first mutwalli and to lay down the rules for succession to the office. He may nominate by name or indicate the class or qualification according to which, the appointment should be made. He may invest a mut-walli with the power to nominate his successor. If the person appointed mutwalli dies, refuses to act or is removed by court etc. and there is no provision in the Wakf Deed for filling the vacancy, then also the founder can appoint a mutwalli and failing him, his executor.
(b) If in the latter case, there is neither the founder nor his executor, the mutwalli for the time being may appoint on his death-bed.
(c) If no such appointment has been made, the court may appoint a mutwalli.
8. In this particular case, it is admitted that the Wakf Deed contains provisions as to the appointment of a mutwalli. The Sajjadanashin for the time being is to be the mutwalli. But the dispute is as regards the question as to who had become the Sajjadanashin upon the death of the late Hazrat Sahib. Firstly, the genuineness and validity of the Wasiatnamah is disputed and secondly, it is a matter of dispute as to whether the Sajjadanashinship can be the subject-matter of a disposition or whether it devolves by custom and usage and if so, what the custom or usage was. Since, however, the late Hazrat sahib left three sons, none of whom are suffering under any disability, it cannot be disputed that either one or more than one amongst them, or all of them are entitled to act as mutwalli. It does not seem to be anybody's case that a mutwalli does not exist, and this fact will be of importance in interpreting the provisions of the Bengal Wakf Act.
The Bengal Wakf Act No. 13 of 1934 is intituled "an Act to make provision for the proper administration of wakf property in Bengal", and the preamble recites the expediency of making provisions for the proper administration of wakf properties. Under Section 7, the provincial Government was to appoint a Board consisting of 11 members including the Commissioner of Wakfs as President for the first three years, and 12 members thereafter, including the Commissioner. The Commissioner of Wakfs is appointed under Section 16. Section 27 lays down the respective functions of the Board and the Commissioner. Generally speaking, the Commissioner looks after the proper administration of the wakfs and the Board acts in an advisory capacity.
9. It is important to note that the allocation of the functions is not only subject to the provisions of the Act but also to the rules framed thereunder. Section 29 relates to delegation of powers and is important. It runs as follows :
"29. The Board may, from time to time, authorise the Commissioner to exercise and perform, subject to control of the Board, any of the powers and duties conferred or imposed on the Board by or under this Act."
Section 40 relates to the power of the Board to appoint an interim mutwalli. The provision is as follows :
"40. 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 person to act as mut-walli."
10. It will be observed that in the present case the appointment has been made by tile Commissioner of Wakfs and not the Board. It is said that by a resolution dated 24-4-1936, the Board has delegated its power under Section 40, of appointing a temporary mutwalli, to the Commissioner of Wakfs. The learned Advocate-General has disputed the right of the Board to delegate this power and I shall presently consider the point. .
11. Section 84 grants power to the provincial Government to make rules "For carrying out the purposes of the Act". Such rules have been made from time to time. One such rule contained in Notification No. 696 Mis., dated 31-3-1937 is important and must be set out. "In exercise of the power conferred by Subsection (1) of Section 84 of the Bengal wakf Act, 1934 (Beng. Act 13 of 1934), the Government of Bengal (Ministry of Education) are pleased to make the following rules regarding the appointment by the Board of Wakf in certain cases under Section 40 of the said Act of persons to act as Mutwallis :
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 interest 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."
12. Under Section 45 of the Act, the Commissioner is to maintain a register of wakfs. Under Section 47, in the case of any change in the management of an enrolled wakf due to the death or retirement or removal of the mutwalli, the incoming mutwalli must forthwith, and any other person may notify the change to the Commissioner. Failure on the part of the incoming mutwalli to give the requisite information to the Commissioner is an offence under Section 47. But under this section, the Commissioner is a mere recording officer. He has no right to decide the right to mutwalliship between rival claimants. Thus, whereas under Section 46A, he can decide whether a particular property is wakf property, it is not within his province to decide the title between two rival claimants to the mutwalliship.
13. Coming back to Section 40 of the Act and the rules framed in respect thereof. I might summarize the argument of the learned Advocate-General as follows: He urges that the appoint-ment of a temporary mutwalli of a wakf, under Section 40 of the Act is subject to the following conditions :
(a) Where there is no mutwalli, or;
(b) there appears to the Board to be an impediment to the appointment of a mutwalli, and subject
(c) to any order of a competent Court.
He says that the first condition does not apply, because it is nobody's case that there was no mutwalli at all in existence. A mutwalli is in existence, either by virtue of custom or usage or by virtue of tne Wasiatnamah, if that document is found to be a valid and genuine document. Next he says that there could be no 'impediment' in this case to the appointment of a mutwalli. Firstly, there is no question of anyone appointing a mutwalli at all. The mutwalli in this case derives his office either by custom or usage or because he has already been appointed by a valid Wasiatnamah. Secondly, all the sons of Hazrat Sahib are persons not under disability, hence there could not be any 'impediment' to an appointment. A mere dispute between the parties cannot be an 'impediment' to an appointment. The rightful mutwalli is there, whoever he might be. Simply because someone else disputes his title it cannot be said that there was any 'impediment' in law to his becoming a mutwalli. There could be such an 'impediment', if the person entitled to be a mutwalli was a minor or a person of unsound mind, or an apostate, or some such thing.
Even if one or the other party goes to court, the court was not going to appoint a mutwalli but would merely declare his right to act as such. But even if the court was going to appoint a mutwalli, there was no impediment in doing so. Next we come to the question of delegation of powers and duties under Section 40. The learned Advocate-General argues that even if it be assumed that tne Board could appoint a temporary mut-walli, it was subject to a condition namely "where there appears to the Board to be an impediment to the appointment of a mutwalli". This means the subjective satisfaction of the Board, as to the existence of a state of things. It was the duty of the Board to be first satisfied that there was an impediment and then exercise the power. This subjective satisfaction is by its nature not capable of delegation. In any event the resolution of the Board dated 24-4-1936, merely delegates "The powers of this Board under Section 40 to appoint a temporary mutwalli". Under Section 29, both the powers and duties of the Board could be delegated, but there is no delegation of duties.
14. Coming to the rules, learned counsel argues that the rules framed under Section 84, can only be for "carrying out the purposes of the Act". It is not permissible under the guise of rules to travel beyond the four corners of the Act. Thus, inasmuch as Section 40 itself does not grant power to the Board to appoint a temporary mutwalli, simply because there are two rival claimants, such powers cannot be granted by the rules which have been expressed to be made to give effect to Section 40. Secondly, he argues that the rules contemplate merely an enquiry and report by the Commissioner of Wakfs. Hence, delegation of the power to appoint a mutwalli is precluded, since it is absurd to contemplate the Commissioner making a report or recommendation to himself and then acting upon it.
15. Mr. Kar appearing on behalf of the respondent No. 2, argues that under Section 45, the Commissioner has to maintain a register of wakfs and one of the particulars is the name of the mutwalli. He argues that when a mutwalli dies and there are rival claimants, the Commissioner has got to investigate the matter and decide as to whose name should be substituted. He seemed to suggest that until the new name was recorded there was no mutwalli. I am unable to accept this argument. Under Section 47, the incoming mutwalli has to notify the death of the last mutwalli and the resulting change in the management of the wakf. But neither such information nor the particulars en-tered in the register of wakfs creates the title in a mutwalli. such procedure is akin to the mutation of names in the Collectorate or Municipal records -- it neither creates nor destroys ones title. In my opinion, it cannot be said in the present case that there was "no mutwalli". Hence the case does not come within the opening words of Section 40.
We now come to the second part of Section 40. Mr. Kar relies on -- 'Reg v. Income Tax Commrs.',. (1888) 21 Q B D 313 (A). By 5 & 6 Vict C. 35 Section 133, "If within or at the end of the year" of assessment any person charged with income tax, "shall find and shall prove to the satisfaction of the Commissioners by whom the assessment was made that his profits during such year for which the computation was made fell short of the sum so computed" etc.,
it was lawful for the said Commissioners to cause the assessment to be as the case should require and, in case the sum assessed had been paid, to certify under their hands to the Commissioners for special purposes the amount of the sum over paid upon such first assessment, and thereupon the last mentioned Commissioners were required to issue an order for the repayment of such sum as had been so over paid.
An English Company, working mines abroad,, made, in March 1887 an application under the above section for certificates in respect of over payments, of income tax assessed on profits for certain years and the Commissioners by whom the assessments were made having inquired into the case gave them, certificate under the section. The commissioners for special purposes refused to issue orders for repayment on such certificates on the ground that they were made without Jurisdiction, the company not having found and proved "within or at the end of the year" as required by the section that their profits in the respective years fell short of the sum computed.
Lord Esher held that the Act gave the Commissioners (by whom the assessment was made) jurisdiction to inquire into and finally determine the question whether the applicant had brought his case within the terms "at the end of the year". And, as the Commissioners had decided the question, there was no appeal from their decision and the Commissioners for special purposes were bound to order repayment of the amounts certified to be over paid.
I do not see how this decision applies to the facts of this case, and how it helps Mr. Kar. under Section 40, it must 'appear' to the Board that there ' was an impediment to the appointment of a mut- walli. They have accordingly a duty to go into the question and satisfy themselves as to tne existence of such a fact. If they do not satisfy . themselves, then the condition precedent is not complied with. The question has not arisen as to whether, if they decided the -question, their findings could be interfered with. The question is, did they satisfy themselves at all? Mr. Kar argues that this was a duty and the duty had. been delegated. As I have pointed out, the relevant resolution of the Board does not purport to delegate the duties but only the powers.
Mr. Kar then shifted his position and argued that it was not a duty but a 'power.' How a condition precedent, to be satisfied that a certain state of things exists, can be called a 'power', I fail to understand. But even if it be a 'power', it is certainly the general rule that a power involving personal discretion by the donee cannot be delegated (Halsbury, Vol. 25, pages 526 and 955).
16. However, I admit that it is a very difficult question to determine, whether this kind of subjective satisfaction can be delegated, if the statute itself contains provisions for delegation of all powers and duties under the Act. The Preventive Detention Act or the Defence of India Rules, might be cited as instances where such subjective satisfaction were necessary and yet they contain provisions for delegation. Mr. Mitter appearing on behalf of respondent No. 3 gave a number of instances. He pointed out various sections of the Calcutta Municipal Act, 1951 which required the subjective satisfaction of the Commissioner viz. Section 210(3) (If satisfied), Section 288 (Has reason to believe), Section 325 (If it appears), Section 408(3) (If satisfied). Yet under Section 34, the Commissioner "may delegate to any muhcipal officer or servant any of his powers, duties or functions, except those conferred by some sections specified".
The learned Advocate-General points out that the distinction lies in the fact that under Section 34, Calcutta Municipal Act not only "Powers" and "Duties" can be delegated but also 'Functions', which would attract subjective satisfaction. Mr. Mitter also refers to Section 11(1) & (2), Bengal Finance Sales Tax Act, 1941, ('Is not satisfied' or 'Is satisfied') and to Section 15 which gives power of delegation. The learned Advocate-General argues that in this case of this Act, the satisfaction is not a condition precedent. It might be so in the case of Section 11(1), but I do not see why it is not a condition precedent in the case of Section 11(2).
17. In my opinion, subjective satisfaction of the nature that we have here can be delegated if the statute itself grants such power and it has been validly delegated. I think, however, that it is either a "duty" or a "function" and not a power. The power lies in doing something, here, the appointment of a mutwalli. But before the power can be exercised, the Board must go into the question whether an impediment exists and be satisfied that it does exist. This process of being satisfied cannot be called a "power". There has, therefore, been no proper delegation of this "duty" or "function", since the resolution of the Board dated 24-4-1936 only delegates the "Powers" of the Board under Section 40.
18. But the real reason why the second part of Section 40 will not apply is because this is not a case of appointment of a mutwaiii and if it were such a case, there is no impediment to such appointment. The printed order of the Commissioner of Wakfs dated 13-10-53 has been placed before me (I direct that it should be marked as an exhibit) and it does not show that anything appeared to the Commissioner of Wakfs that can be called an 'impediment' in law. The word 'impediment' must mean an impediment in law and such impediments are well known, e.g., minority, unsoundness of mind, apostacy, etc. No such impediment exists in this case. The mere fact that two persons are rival claimants for the office, cannot be described as an "impediment" to the appointment of a mutwaiii. I accept the argument of the learned Advocate-General upon this point.
19. Coming now to the rules, it follows that the rule mentioned above, in so far as it grants power to the Board to appoint a temporary mutwaiii under Section 40, merely on the ground that there are two rival claimants, is 'ultra vires', because Section 40 itself does not grant such power and the rules framed under Section 84 are intended to carrying out the purposes of the Act. In some statutes, power is given to frame rules and when so framed, they are made part of the statute. That is quite a different matter. In such a case, it might be permissible to supplement the provisions of the statute itself, within limits. But where rules are to be framed for "carrying out the purposes of the Act", such rules cannot travel beyond the four corners of the Act itself, in any event, such rules framed in respect of Section 40, could not grant power to the Board, not conferred by Section 40 itself.
In the case of statutory rule, the Court can always go into the question as to whether they are inconsistent with the statute under which they are made (Hals. Vol. 31 pp. 468 & 575 -- 'Mackey v. Monks (Preston) Ltd', (1918) A. c. 59 (B); 'Ganendra Kumar v. Narayan Chandra', (C), notice under an Act, imposing time
limit not found in the Limitation Act). It is, therefore, unnecessary to go into the further question raised by the learned Advocate-General that the Commissioner of Wakfs could not recommend or report to himself and then act upon it,
20. I rather regret the results that must follow, because when two brothers are fighting, it would have been an admirable arrangement to vest the administration in the hands of an impartial person. But if the law does not confer upon the Board or the Commissioner of Wakfs the power to appoint a temporary mutwaiii, then such an appointment cannot be permitted, nor such a mutwaiii be permitted to function. Either there is a lacunae in the Act, inasmuch as it has not provided for such an appointment where there are rival claimants, or else it was the intention of the Legislature that where title was in dispute, the matter was not one to be dealt with administratively. Rules are not sufficient to effect that change in the law. Section 40 itself would have to be amended. I made an offer that if the respondent No. 2 filed a suit, I would be prepared to keep this application pending and preserve the status-quo until he had had an opportunity for applying for the appointment of a Receiver. The offer has not been accepted.
21. For the reasons stated, this rule must be made absolute, and a writ in the nature of mandamus must be issued, directing the respondent No. 1 from forbearing to give effect to his order dated: 13-10-1953 in so far as he has appointed a temporary mutwaiii and the respondent No. 3 must be restrained from acting as such. A writ in the nature of Certiorari will issue quashing that order in so far as it has purported to make such, an appointment.
22. As the Commissioner of Wakfs bona fide acted under the rules, the petitioner will pay his costs but otherwise there will be no order as to costs. The interim orders will be vacated. The operation of the order is stayed for 3 weeks. Any further stay must be obtained from the court of appeal, if there is an appeal. Writs of certiorari and mandamus issued.