SYED MORAD ALL Vs. SYED AHSAN ALI

JUDGEMENT

(1.) THIS appeal arises out of the judgment delivered and order passed by Masud, J. , on the 21st August 1974, dismissing the appellant's application under Article 226 of the Constitution. On the 5th september 1928 Syed Muslehuddin created a Wakf-al-al-Aulad by a registered document and by the said document he nominated himself as first Mutwalli and after his death his son to be the mutwalli of the said Wakf. On the 23rd april, 1952, the said Wakif-Mutwalli muslehuddin executed a power of attorney in favour of the appellant Syed morad Ali. On the 11th September, 1968 Morad Ali was appointed Naib-Mutawalli by the said Wakif-Mutawalli muslehuddin subject to the terms mentioned in the said document. The appellant Morad Ali made an application on the 25th October, 1968 to the Commissioner of Wakf, West Bengal, praying that he might be appointed to perform the duties of Mutwalli under section 40 of the Bengal Wakf Act, 1934. On the 12th December 1968, the Commissioner appointed the said appellant ad-interim Mutwalli under Section 40 of the Bengal Wakf Act, 1934, for three years from the date of the order. In view of the points involved in this appeal it would be relevant to set out the terms of the said appointment : -

(2.) NOW therefore, in exercise of the power conferred upon the Board of wakfs, West Bengal by section 40 of the Bengal Wakf Act, 1937, and delegated to the Commissioner of Wakfs, west Bengal u/s. 29 of the said Act, I do hereby appoint the said Jb. Syed murad Ali of 83, Taltola Lane, Calcutta-14 to be the ad-interim Mutwalli of the aforesaid Wakf for a period of 3 (three) years or until further order or orders subject to any order of a competent court of Law". On the 11th december, 1971, the appellant's appointment under the aforesaid order expired. On the 20th January, 1972, the Commissioner again appointed the appellant for a period of five years. In the said order, after setting out the previous appointment, the Commissioner stated as follows : -

(3.) ON the 26th December, 1972 the wakif-Mutwalli Syed Muslehuddin died. On the 9th January, 1974 the respondent No. 1 who is the son of the original wakif and who is named as the Mutwalli under the registered deed of wakif-al-al-aulad made an application for recording his name as Mutwalli in the place of his deceased father and to cancel the order appointing the appellant as the ad-interim Mutwalli. The 16th January, 1974 was the date fixed for hearing of the application dated 9th January, 1974. The 29th January 1974 was the second date fixed for hearing of the said application. On the 6th February 1974, it is stated, the respondent No. 1 made an application to the Commissioner of Wakf requesting withdrawal of the operation of the order under section 40 of the Bengal wakf Act, 1934 and to treat the application dated the 9th January, 1974 as completely withdrawn and superseded by the said application and requesting the Commissioner to signify his willingness to abide by the terms of the wakf deed without which it would not be useful, for the respondent No. 1 to attend the hearing on 12th February, 1974. On the 12th February, 1974 the appellant appeared before the Commissioner for hearing but the respondent no. 1 did not. On the 13th March, 1974 there was a letter which the commissioner wrote to the respondent No. 1 with reference to his application dated the 6th February, 1974 fixing 29th march, 1974 at 2 p. m. with a copy to the appellant annexing a copy of the application of respondent No. 1 dated the 6th February 1974 asking both the parties to appear on the date and hour positively with evidence oral or documentary in support of their respective claims. On the 29th March, 1974 the date of hearing, the appellant did not put any objection. On the 23rd April 1974 the Commissioner made an order recording the name of the responded no. 1 as Mutwalli and vacating with immediate effect the previous order of appointment of the appellant. The order after setting out the history and reasons, stated as follows : -