SK ABDUL LATIF Vs. COMMISSIONER OF WAKFS

JUDGEMENT

(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, 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.