Calcutta High Court
Sk. Abdul Latif vs Commissioner Of Wakfs And Anr. on 20 January, 1982
Equivalent citations: AIR1982CAL288, 86CWN434, AIR 1982 CALCUTTA 288
JUDGMENT Banerjee, J.
1. This appeal at the instance of the petitioner arises out of an application under Article 226 of the Constitution of India challenging the order passed by the Commissioner of Wakfs under Section 27 of the Bengal Wakf Act. The petitioner who is the appellant herein, is alleged to be mutwalli and the respondent No. 2 is alleged to be beneficiary under the Wakf created by one Sk. Panchkari who executed wakf and registered the Wakfnama on 10th of Palgun, 1332 B. S. At the time of execution of the said wakfnama, it is alleged, the Wakif had only two daughters namely. Raushan Ara Bibi and Masuda Dibi, both of whom were married. After the execution of the Wakf-nama the wakif married again and the petitioner was born of the wakif's second wife. The wakif died sometime in 1940 and after his death, it is alleged, one of his sons-in-law, husband of respondent No. 2 was appointed as mutwalli of the wakf estate. At that time the petitioner was a minor. The said mutwalli died on 7th of Sraban, 1362 B. S. and the office of mutwalli fell vacant whereupon both Masuda Bibi and the petitioner applied before the Commissioner of Wakfs for recording their names as mutwallis of the wakf. estate. The Wakfs Commissioner on intimation to the applicants for being appointed as mutwallis, fixed 16th Nov. 1955 as a date of hearing and by an order dated 9th January, 1956 the petitioner was appointed mutwalli after rejection of the application of Masuda Bibi. Thereafter Masuda Bibi filed a suit on 9th of Jan. 1956 in the court of the 3rd Munsif at Burdwan and prayed for declaration that she was the mutwalli of the wakf estate of Sk. Panchkari and the aforesaid order of the Commissioner was not binding on her and was liable to be set aside. The said suit was dismissed on 10th of August, 1957. An appeal was taken against that order. That appeal was also dismissed. A second appeal was taken to this Court which was also dismissed. It appears that on or about 1st week of Dec. 1976 the petitioner received a notice dated 1st Dec. 1976 from the office of the Commissioner of Wakfs regarding enquiry to be made by the Commissioner into the affairs of the wakf estate. Then the petitioner appeared on 23rd Dec. 1976 and it is stated he was surprised to find Masuda Bibi applying again to the Commissioner of Wakfs for recording her name as mutwalli in respect of the wakf estate. The Commissioner of Wakfs by an order dated 6th Nov. 1977 removed the petitioner from the post of mutwalli and appointed Masuda Bibi to act as mutwalli of the wakf estate for a period of six months. Then the matter was taken to this Court under Article 226 of the Constitution of India and in C. R. 178 (W) of 1977 this Court quashed the order of the Commissioner of Wakfs on 6th of Jan. 1977 and directed the Commissioner to pass fresh order in accordance with law. Subsequently the petitioner was appointed mutwalli of the wakf estate of Sk. Panchkari. Thereafter another Rule was obtained against an order passed by the Commissioner of Wakfs for reviewing the earlier order and the Rule was made absolute by this court Thereafter again a fresh notice from the Commissioner of Wakfs was received enclosing a copy of petition filed by Masuda Bidi wherein the petitioner was directed to make a payment of Rs. 1,26,000/- to Masuda Bibi. The Commissioner directed such payment to be made by the order dated 19th May, 1979. Against the said order the petitioner moved this court and obtained a Rule. The said Rule was discharged by the Hon'ble single Judge. In his order it was directed as follows : "The Commissioner would be at liberty to determine who are the beneficiaries under the aforesaid wakf deed and the shares of the allowances payable to them". In discharging the Rule the Hon'ble singles Judge held inter alia that the proceeding before the Commissioner of Wakfs was one under Section 27 (1) (a), (b), (c), (d) and (e) and whether it was a Quasi judicial power or not. It has been held by the Hon'ble single Judge that the wakf estate has been enrolled with the description that it is a wakf-alal-aulad which under Section 6 (11) of the Bengal Wakf Act means a wakf under which not less than 75 per cent of the net available income is for the time being payable to the wakf for himself or any member of his family or descendants Argument was advanced before the Hon'ble single Judge about maintenance of ,ku c<rh lalkj and the question remains who are the beneficiaries of the wakf estate. The Hon'ble single Judge held that the settlement was made in favour of the beneficiaries namely for himself or any members of his family or descendants. The learned Commissioner held that Masuda Bibi being a daughter is a beneficiary under the wakf deed. Be that as it may, he has directed that the Commissioner will consider the question again and decide what will be the share of the allowance the beneficiaries are entitled to get under the gift
2. Being aggrieved by the order of the Hon'ble single Judge discharging the Rule, this appeal has been preferred. Before us the only question which was mooted is whether Section 27 (1) (a) and (b) of the Bengal Wakf Act has given power which is to be exercised quasi judicially or not.
3. Mr. Kabir on behalf of the appellant contended before us that at least the power given in Section 27 (1) (b) (c) (d) and (e) is not quasi-judicial in function but administrative function of the Commissioner of Wakfs only. Assuming for a moment that Kabir is correct in his submission that power given in Section 27 (b) (c) (d) and (e) is administrative function, in view of judgment it is clear that even the administrative function which affects other persons will be vulnerable to attack any application under Article 226 of the Constitution. On the basis of this judgment Mr. Kabir contended that we must also hold that power under Section 27 (1) (b) of the Act is administrative function and cannot be exercised by the Commissioner in a quasi-judicial way as it has done.
4. Mr. Das on behalf of the respondents, however, contended that all the powers under Section 27 (1) (a) (b) (c) (d) and (e) are functions to be exercised in a quasi judicial manner and not administratively. Mr. Das relied upon a number of cases in support of his contention. In our opinion, Section 27 (1) (a) of the Bengal Wakf Act on the face of it cannot but be quasi judicial. In a case reported in (1944) 48 Cal WN 157: (AIR 1944 Cal 206) Mr. Justice Pal sitting with Mr. Justice Bijon Kumar Mukherjee held inter alia that the power, so far as the decision is concerned, under Section 27 (1) (a) is a quasi judicial power. His Lordship held that so far as this decision is concerned the Commissioner discharged the quasi judicial function. On reading Section 27 (1) (a) of the Act it is quite clear that the Commissioner may investigate and determine the nature and extent of wakfs and wakf property, and call from time to time for accounts, returns and information from mutwallis and it cannot but be quasi-judicial, because it requires investigation as well determination of the nature and extent of the wakf and wakf property. The (nature and extent of the wakf property prima facie means, in our opinion, how income from the property has to be applied for the objects and purposes of the wakf and for such benefit of such class of persons for which such wakf is created or intended. This is exactly what has been stated in Section 27 (1) (b) of the Act. In our opinion, Section 27 (1) (b) of the Bengal Wakf Act is corollary to Section 27 (1) (a) of the Act or in other words, in order to determine the nature and extent of the wakf, the wakfnama must be considered and it must be shown how does it benefit and to whom the benefit is intended and what is the object of the wakfnama and how he income is to be spent on the said objects. All these, in our opinion, require determination by the Commissioner of Wakfs. Therefore, naturally this is a quasi judicial power. We are not concerned with sub-sections (d) and (e) of Section 27 (1) of the Act in this case. It is suffice for us to say that the power under Section 27 0) (a) and (b) given to the Commissioner of Wakfs is the power which is to be exercised in a quasi judicial manner and not otherwise. In the present case this was done. Therefore, we agree with the Hon'ble single Judge while discharging the Rule that the Commissioner may now decide how much benefit each of the beneficiaries will get and how much from the income of the wakf property. We make it clear that the learned Judge has not decided regarding payment to be made to the respondent No. 2. On the other hand, the learned Judge, in our opinion, has directed the learned Commissioner to decide the matter afresh after hearing all the parties about the benefits which are to be determined by the Commissioner under the aforesaid Deed of Wakf.
5. The appeal is therefore dismissed
6. There will be no order as to costs.
7. No formal decree need be drawn in this appeal.
B.N. Maitra, J.
8. I agree.