Appeal No 237 of 1956
Appeal by special leave from the judgment and order dated December 13 1954 of the Calcutta High Court in Appeal from Original Order No 117 of 1954
B Sen P K Chatterjee and section N Mukherjee for the appellant
B C Mitter and D Mukherjee for respondent No 1 1961
February 6
The Judgment of the Court was delivered by HIDAYATULLAH J
This appeal is as much without substance as it was unnecessary
Hazrat Syed Mastershid Ali Al Quadari the appellant is the eldest son of one Hazrat Sahib Syed Shah Mastershid 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 succes sor 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 761 was the order of Sinha J was reversed and the petition was dismissed
This appeal has been filed with special leave
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
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 Mutwalli or where there appears to the Board to be an impediment to the appointment of amutwalli 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 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 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
 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 762 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 a vacancy in the office of the mutwalli has been caused by death resignation retirement or removal of th e 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 763 Mutawalli while the dispute remained undecided
This point has no force whatever
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 vs Attomey General of Northern Rhodesia 1
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
The appeal fails and is dismissed
The appellant shall pay the costs of the respondents who have entered appearance
Appeal dismissed


Summary:
The assessee resident in British India had some money in deposit with a concern in Bhavnagar outside British India
On April 7 1947 he transferred part of it to a concern in Bombay
He was assessed to tax on this amount under section 4ibiii of the Income tax Act
The assessee contended that to attract the application of section 4ibiii the receipt in the taxable territory must be the first receipt of income
Held that the assessee was liable to tax on this amount
Per Gajendragadkar and Wanchoo JJ
Where a person resident in the taxable territories has already received outside the taxable territories any income etc
accruing or arising to him outside the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable to income tax thereon
Though for the purposes of cl
a of section 4 the receipt must be the first receipt of income in the taxable territories for the purposes of cl
biii the receiving in the taxable territories need not be the first receipt
Keshav Mills Ltd vs Commissioner of Income tax   referred to
Per Sarkar J
The income could not be said to have been received in the taxable territory within the meaning of cl
biii as income could be received only once
But it is clear that the assessee  brought into  Bombay that income
It was immaterial in what shape he received the income in Bhavnagar and in what shape he brought it in Bombay
Keshav Mills Ltd vs Commissioner of Income tax   Board of Revenue vs Ripon Press Mad
706 and Sundar Das vs Collector of Gujrat 1922 ILR  applied
Gresham Life Assurance Society Ltd vs Bishop 1902 AC 287 and Tennant vs Smith   referred to