HAZRAT SYED SHAH MASTERSHLD ALI AL QUADARI versus THE COMMISSIONER OF W AKFS, WEST BENGAL.

Citation: [1961] 3 S.C.R. 759 · Decided: 06-02-1961 · Supreme Court of India · Bench: J.L. KAPUR · Disposal: Dismissed
Cited by 1 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

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 
v. 
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 
v. 
State of 
littar Pradesh 
Shah J. 
Ig61 
February 6. 
760 
SUPREME COURT REPORTS 
[1961) 
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 rnter-
v. 
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, claim-
ing 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 succes-
sor 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 tempo-
rary i\Iutawalli. The appellant then moved a petition 
in the C>1.lcutta High Court under Art. 226 ofthe Con-
stitution against the appointment, which was allowed 
by Sinha, J. and the order of the Commissioner was 
set aside. On appeal to the Divisional Bench, consist-
ing of Chakrava.rti, C. J. and Lahiri, J. (as he then 
3 S.C.R. 
SUPREME COURT REPORTS 
761 
was), the order of Sinha, J. was reversed, and the 
I96z 
petition was dismissed. This appeal has been filed
Excerpt shown. Read the full judgment & AI analysis in Lexace.