3 S.C.R.

SUPREME COURT R.EPORTS 759

arise on the pleadings. Evidently, any decision given by the High Court in the course of the order would not in that trial de nova be binding and the cases will have to be tried afresh by the Civil Judge. The High

Court. was of the view that the interpretation of para. 3 of the first schedule of the Indian Arbitration Act rnised a substautbl question of law. But by the direction of the High Court, this quest.ion was also left open to be tried before the Civil Judge.

We fail to appreciate how an observation on a question which is directed to be retried can still be regarded as raising a question of law of great public or private. importance justifying grant of a certificate under Art. 133 (1) (c) of. the Constitution.

We accordingly vacate the certificate granted by the High Court and dismiss these appeals with costs.

One hearing fee.

Appeals dismissed.

HAZRAT SYED SHAH MASTERSHlD ALI

AL QUADARI

THE COMMISSIONER OF W AKFS,

WEST BENGAL. (J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)

M utawalli - Temporary. appointment-II' hen can be made by the Commissioner-Delegation of powers-Duty interwoven rvith power-Distinction-Bengal ll'akf Act, r934 (Ben. XIII of r934),

SS. 29, 40.

During controversy between two brothers each of \Vhom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed a third brother as a temporary Mutawalli under s. 40 of the Bengal Wakf Act, which appointment was challenged on the ground that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the rules framed by the Government of West Bengal the Board constituted under Bengal Wakf Act could alone make the appointment and the Commissioner could only make a report and recommendation to the Board.

Held, that under the provisions of s. 40 read with s. 29 of the Bengal Wakf Act, a temporary Mutawalli can be appointed by the Commissioner to whom the powers and duties have been

IV! /s. f ethanand

and Sons

State of littar Pradesh

Shah J.

Ig61

February 6.

1961 delegated by the Board. The Rules cannot affect the powers of - the Board to delegate its functions under s. 29 of the Act to the Hazrat Syed Shah Commissioner, and once the delegation is made the rules cease

Mastershid Ali to apply.

Al Quadari f .

Held, urther, that where power and duty are rnterv.

Ctnnmissioner of

Wakfs, Wesl Bengal

connected and it is not possible to separate one from the other in such wise that power can be delegated while duty is retained and vice versa, the delegation of powers takes with it the duties.

CIVIL APPELLATE JuRisDlC'l'ION: Civil Appeal No. 237 of 1956.

Appeal by special leave from the judgment and order dated December 13, 1954, of the Ca.Jcutta High Court in Appeal from Original Order No. 117 of 1954.

B. Sen, P. K. Chatterjee and S. N. Jlfukherjee, for the appellant.

B. 0. Mitter and D. Mukherjee, for respondent No. l.

1961. February 6. The Judgment of the Court was delivered by

Hidayat1tllah J.

HIDAYATULLAH, J.-This appeal is as much without subRtance, as it was unnecessary.

Hazrat Syed Mastershid Ali Al Quadctri (the appellant) is the eldest son of one Hazrat Sahib Sved Shah l\Iastershid Ali Al Quadari (shortly, Hazrnt Sn.bib), the first Mut.awalli 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 fath<r as Sajjadanashin, being his eldest son, made an application to the Commissioner ' under the Bengal Wakf Act. His yotrnger brother, Syed Shah Rushaid Ali Al Quarlari, opposed his claim, the ground being that be was nominated as the successor by Hazrat Sahib. vVhile this controversy was afoot, the Commissioner, acting under s. 40 of the Bengal Wakf Act, appointed Syed Shah Rasheed Ali Al Qnarlari (the third son of Hazrat Sahib) as a temporary i\Iutawalli. The appellant then moved a petition in the C>1.lcutta High Court under Art. 226 ofthe 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 Chakrava.rti, C. J. and Lahiri, J. (as he then

was), the order of Sinha, J. was reversed, and the I96z petition was dismissed. This appeal has been filed H - · h ' 1 azrat Syed Shah wit spema leave.

Ma•tershid Ali It is contended in this appeal that the order of the Al Quadari Commissioner appointing a temporary Mutawalli was v. illegal, because under the Rules framed by the Govern- Commissioner of ment, ouly the Board constituted under the Bengal Wakfs, Wakf Act could make the appointment. This argu- West Bengal ment, in our opinion, is wholly unsound. The learned Hidayatullah J.

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 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 Mutwa!li." Section 29 provides :

"The Board may, from time tu 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 At, 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 sectionsof 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

r96r delegated to the Commissioner, by the Commissioner.

H azrae-;-;, d Shah The appellant contends that the Cum missioner can 1• Mas!ershidAli only make a report to the Board, and the Board alone

AIQuadan can make the appointment, and refers to two Hules v. framed by Government. These Rules are : Ccmmissioner of "l. If it appears to the Commissioner that there

Wakfs, is no mutwalli, in the ease of any wakf~ or that a IVest Bengal a vacancy in the office of the mutw<tlli h, w been Hidayatullah J. 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 \Vakf, he may institute an enquiry , and report the result thereof to the Board with his \c recommendation. 2.

On receipt of the report and the recommendation from tlw Commissioner, or on il:; 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 recommendaii tion, but the Board alone was empowered to appoint a temporary l\Iutawalli under s. 40. The last words of the second Huie, it is said, are clear. This is, no doubt, true of those cases where the Board has not delegated its functions under s. 40 to the Commissioner. Once that delegation has been rnadA, the Commissioner acts for and on behalf of the Board, and the Rules cease to apply. The Hules cannot affect the power of the Board to delegate its fun<>tions under s. 29, and harmonious construction requires that the Iiules 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, contencls 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 canclida.te." The word " impediment" means hindrance or obstruction, and there was certainly an obstruction to th" appointment of a perooanent

Mutawalli, while the dispute remained undecided. r96r This point has no force whatever. - The question which seemed to have largely engaged HaMzrat Syedd sh.ah t . . h H. h C 1 h h th d 1 as Im hi Ali a tent10n m t e 1g ourt, name y, w et er e e e- Al Quad•ri gation was only of powers or also of duties of the v.

Board, was not argued before us, though it formed the Commissioner of subject of considerable discussion in the statements of Wakfs. the case. It is without substance. Where powers and West Bengal duties are interconnected and it is not possible to Hidayatullah f 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 i\ the duties.

The proposition hardly needs authority ; but if one were necessary, reference may be made to Mungoni

v. Attorney-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.

MAHANTH RAM DAS

GANGA DAS. (J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)

Court Jee-Appeal to stand dismissed if court Jee not paid within time granted-Extension of time, if can be granted-Code of Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.

The High Court passed a peremptory order that "the appeal will stand dismissed " if a certain amount of court fee was not paid within the time granted by the court. The appellant being unable to find money made an application for extension of time before the expiry of the time granted, Md offering to make a partial payment asked for further time, The application was

(r) [1060) A.C. 336 g8

I96I

February 7,