Skip to content


Nazla Rob Vs. the Commissioner of Wakf, West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberC.R. Case No. 830 (W) of 1966
Judge
Reported inAIR1972Cal389
ActsConstitution of India - Article 226; ;Bengal Wakf Act, 1934 - Sections 27(2), 29 and 32; ;Bengal Wakf Rules - Rules 1 and 4; ;Bengal Clauses Act, 1898 - Section 17
AppellantNazla Rob
RespondentThe Commissioner of Wakf, West Bengal and ors.
Appellant AdvocateBalai Ch. Roy and ;Samaresh Banerjee, Advs.
Respondent AdvocateBhabesh Ch. Mitter and ;Aruna Mukherjee, Advs. (for Nos. 1 and 3-8) and ;Sabita Ranjan Pal, Adv. (for No. 9)
DispositionPetition dismissed
Cases ReferredPradyat Kumar Bose v. Chief Justice of High Court
Excerpt:
- .....father-in-law of the president, was the secretary. the sub-committee which was appointed by the board of wakf had made serious aspersions against the mutwalli in the sense that he had not deposited moneys, realised on behalf of the estate from the land acquisition department. he had already built a house in his own name and that his own remuneration had been enhanced at rs. 1,200/- per annum. it appears from annexure 'd' to the petition that the mutwalli had leased out a big tank adjacent to his house to his wife at a very low rate of rent in view of such kind of allegations it is better to have the property managed by a committee different from the present dissolved administrative committee. in the premises, i am of the opinion that it cannot be and it should not be interfered with.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This is an application under the Bengal Wakf Act, 1934. The petitioner one Nazla Rob claims to be in charge as the President of an Administrative Committee appointed in respect of Hazi Belayet Hossain's Estate of Arna. It appears that Hazi Belayet Hossain, in March, 1927 created a Wakf estate which was enrolled in the office of the Commissioner of Wakfs. The said Hazi Belayet Hossain appointed himself to be the first Mutwalli. On his death, his wife Musemmat Badrunessa Bibi was appointed under the deed of Wakf to be the Mutwalli. Thereafter, one Abdul Hoque became the Mutwalli. He is respondent No. 10 in the present application. By an order dated 26th of July, 1962, the Commissioner of Wakfs appointed an Administrative Committee of seven members of which the petitioner was the President. The said appointment was made under Section 27(2) (in) of the Bengal Wakf Act, 1934 read with Section 29 of the said Act. According to the petitioner the said Administrative Committee functioned very well and gave proper directions for the management of the Wakf estate. It appears, however, that the Mutwalli is the father-in-law of the petitioner, that is to say, the petitioner is the son-in-law of the Mutwalli. The Mutwalli was appointed the Secretary of the said Committee. The petitioner was appointed the treasurer as well as the President of the said Committee. According to the petitioner, the petitioner received on the 24th of April, 1966 the order dated 20th of April, 1966 passed by the Commissioner of Wakfs dissolving the Administrative Committee and appointing a new Committee. It appears that prior thereto there was a sub-committee appointed and the sub-committee made a report, and thereafter the Commissioner dissolved the present Administrative Committee and reconstituted a new Committee. The propriety and the validity of the order of the Commissioner dated 20th of April, 1966 passed by the Commissioner of Wakfs are under challenge in this application under Article 226 of the Constitution. It is the case of the petitioner that prior to the receipt of the notice the petitioner had no knowledge of the constitution about the alleged sub-committee. It is, further the case of the petitioner that the petitioner did not have any opportunity or was given no notice to show cause against the constitution of the sub-committee. Thirdly, it was urged that there was no power to appoint sub-committee as such by the Board or the Commissioner while there was an Administrative Committee. Fourthly, it was urged that the Administrative Committee could not be dissolved in the 'manner purported to be done. Fifthly, it was urged that the constitution of a new Committee was illegal and beyond the powers of the Commissioner and the Board. Lastly, it was urged that the Commissioner in dissolving the Administrative Committee was not functioning as a delegate of the Board and as such he had acted in excess of his powers in the facts and circumstances of the case. Appearing for the petitioner learned counsel contended that there was no hearing given to the petitioner. It was contended that the same amounted to violation of the principles of natural justice as well as infringement of the relevant Rules framed under the Bengal Wakf Act and that the said sub-committee was not lawfully constituted and as such could not exercise lawful powers while there was an Administrative Committee. It was urged that the constitution of the sub-committee under the Act by the Commissioner before dispensing with the Administrative . Committee or before appointing a Committee to look into the matter was illegal. It was contended that the new Committee could not be of more than three members but seven members had been appointed. It was then contended that without any allegation of mismanagement, the Administrative Committee could not be dissolved. It was also urged that the sub-committee in making the report never functioned as a Committee.

2. It appears from the records as mentioned hereinbefore that the petitioner is the President of a dissolved Administrative Committee. The Committee, according to the petitioner and according to the respondents was appointed by virtue of Section 27, Sub-clause (2) (iii). The said provision provides for constituting committees, where necessary, for the administration of wakfs. Section 29 of the Act provides as follows:--

'29. 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.'

Section 32 also is in the following terms:--

'32. In the case or a wakf-al-ul-aulad, a beneficiary or any person entitled under the wakf deed to receive pecuniary or other material benefits either on his own account or on behalf of a religions or charitable institution, and in the case of any other wakf, any person interested may make an application to the Commissioner supported by an affidavit to institute inquiry relating to the administration of wakf or for the examination and audit of the accounts of a wakf, and the Commissioner, on receipt of such application and the prescribed fee, and on being satisfied from facts set forth in the affidavit that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, shall take such action thereon as he thinks fit :

Provided that an application for the examination and audit of accounts shall not be made in respect of accounts relating to a period more than three years prior to the date of such application.'

'Counsel for the Commissioner of Wakfs contended that the petitioner had no locus standi to make the application. It was urged that the petitioner was a President of a Committee which was illegally constituted. In this connexion reliance was placed on the observations of P. B. Mukharji, J. (as his Lordship then was) in the case of Sk Abdur Rahaman Mutwalli v. The Commr. of Wakfs, (1964) 68 Cal WN 509, at page 513 after discussing the relevant provisions of Rules and the Rule 4 read with Section 27 (2) (iii) of the Bengal Wakf Act, 1934 P. B. Mukharji, J. observed as follows:--

'Therefore, it is not intended either by the Act or the rules made thereunder that the Mutwalli himself should be a member of such a committee to supervise himself. But this is exactly what has been done by the Commissioner by his second order introducing the Mutwalli also in this committee of administration. This again therefore is clearly beyond the Act and the rules made thereunder.'

In the instant case it was urged that the constitution of the Administrative Committee of which the petitioner was the President, was illegal in view of the aforesaid observations. Looking at the facts of the instant case from that point of view it appears that the constitution of the Administrative Committee of which the petitioner was President, was improper and its dissolution was proper. It is, however, not necessary for me to decide the present case on the basis of the aforesaid observation of P. B. Mukharji, J. that the Commissioner could not under any provision or under Section 27 (2) (iii) of the Bengal Wakf Act, 1934 appoint a Committee consisting of the Mutwalli himself. It may be urged that Rule 4 cannot in any way curtail the amplitude of the powers given under Section 27 (2) (iii) and there may be cases where for the purpose of maintaining proper liaison between the administration of Wakf estate and the public a committee might be constituted which would include the Mutwalli. But for the purpose of this application it suffices to say that the constitution of the Administrative Committee of which the petitioner was the President, was an undesirable step. I am, however, of the opinion that the petitioner himself as such cannot maintain this application. The petitioner is the President of the Administrative Committee. The Administrative Committee has no vested right as such in the wakf estate. The only right it has is the authority or the power to administer or hold the administration or management of the wakf estate. That is a right belonging to the Committee as such. It cannot be arrogated in any event by any individual member, be he the President or the Secretary. There is no averment in the petition that the petitioner was authorised by the other members of the Committee to make this application nor is the application purported to be made on behalf of the other members of the Administrative Committee. The other members of the said dissolved Administrative Committee are not parties to the present proceeding. In the premises the petitioner, in my opinion, is not entitled to maintain an application under Article 226 of the Constitution. Learned counsel for the petitioner contended that by the report of the sub-committee appointed by the Board the reputation of the petitioner as such had been affected and the petitioner being the person affected was entitled to receive notice under the rules framed under the Bengal Wakf Act. He drew my attention to the following rule framed under Section 32 of the Bengal Wakf Act, which runs as follows:--

'1. On receipt of an application under Section 32 and on being satisfied from the facts set forth in the affidavit accompanying the application that there is a prima facie case for enquiry under the said section, the Commissioner may, if he thinks necessary--

(a) fix a date for the hearing of the application, and cause a notice to be served on the mutwalli or persons affected by the allegations, together with a copy of the application, to appear on the date fixed and

(b) on the date fixed for such hearing, or any subsequent date to which the hearing may be adjourned, the Commissioner may allow an opportunity to both sides to represent their case and to adduce evidence, if necessary, and may make any further inquiries as he may consider desirable and pass such orders as he thinks fit.'

As such there was no allegation against any individual member of the Administrative Committee. Persons affected, if any, in my opinion, would be the Administrative Committee. Therefore, the petitioner as such has no locus standi to maintain this application.

3. It was contended that there was no hearing given to the petitioner and there was violation of the principles of natural justice and also the aforesaid rule. It has been stated in the report of the sub-committee that the notice had been given and the petitioner as well as the mutwalli appeared before the sub-committee. It has been reiterated in the affidavit that notice had been served and on the other hand, it has been controverted on behalf of the petitioner that such a notice had been given or that the petitioner in fact appeared. Where in a case the question whether hearing has been given or not is dependent upon adjudication of such disputed question of fact, the petitioner should ordinarily seek remedy in proceedings other than by an application under Article 226 of the Constitution. Prima facie it appears to me that the allegations made in the report of the sub-committee are correct but even if they are not correct and the petitioner wants to establish to the contrary, he should seek remedy by proceedings other than an application under Article 226 of the Constitution.

4. It was then contended that the sub-committee which was appointed to investigate into the affairs was not lawfully constituted. I am unable to accept this contention. The Commissioner and the Board who had the power to appoint the Administrative Committee had the power to dissolve the Committee always. That is inherent in the power of appointment under Section 17 of the Bengal General Clauses Act and for the purpose of carrying out this power if the Board or the Commissioner wants to enlighten itself by an enquiry by a sub-committee there is nothing in the Act and the rules framed under the Act which prevented such a course of action. In this connexion learned counsel for the respondents drew my attention to the decision in the case of Pradyat Kumar Bose v. Chief Justice of High Court at Calcutta, : [1955]2SCR1331 . In the view I have taken of the facts it is not necessary for me to discuss this decision in detail. It is contended that the Commissioner was not acting as a delegate in making the appointment and as such the order was bad. I am unable to agree. Reading the order as a whole, it is clear that both in making the dissolution of the Administrative Committee as well as in the appointment of the new committee the Commissioner was acting as a delegate of the Board under Section 29 of the Act. Even, however, that construction is eliminated, it appears to me that under Section 17 of the General Clauses Act when the Commissioner had the power delegated by the Board to appoint the Committee under the Act it carried with it the power to suspend or dissolve the Committee. In view of the same, looking at the order of 20th of April, 1966 it appears to me that it cannot be said that the Commissioner had acted beyond jurisdiction. In view of the new amendment of the Rules the new committee could be constituted as was done. It was then urged that the sub-committee which went into the allegation did not meet as a sub-committee. Reliance was made to the signatures of three members on different dates--two of them Lutfal Haque and M. Israil has signed on 19th of January, 1966 while Abdul Ashan signed on the 21st of December, 1965. It was urged, therefore, that the Committee did not meet as such as the sub-committee. I do not think it is proper to consider the events in that manner. Sub-committee's report is the result of the decision of the committee and it may be that the members signed on different dates, that does not prove that the sub-committee did not meet as such. It was urged that without any allegation of the mismanagement the Administrative Committee could not be dissolved. I am unable to agree. In view of the provisions of Section 27 (2) (in) read with Section 17 of the Bengal General Clauses Act, the Board and the Commissioner had the power to dissolve the Administrative Committee.

5. Apart from any legal consideration it appears to me that the order passed by the Commissioner of Wakfs in this case is pre-eminently a desirable order. President of the dissolved Administrative Committee is the son-in-law of the Mutwalli. The Committee had lasted for long time. The President was also the treasurer of the Committee and the Mutwalli, who is the father-in-law of the President, was the Secretary. The sub-committee which was appointed by the Board of Wakf had made serious aspersions against the Mutwalli in the sense that he had not deposited moneys, realised on behalf of the estate from the Land Acquisition Department. He had already built a house in his own name and that his own remuneration had been enhanced at Rs. 1,200/- per annum. It appears from annexure 'D' to the petition that the Mutwalli had leased out a big tank adjacent to his house to his wife at a very low rate of rent In view of such kind of allegations it is better to have the property managed by a committee different from the present dissolved Administrative Committee. In the premises, I am of the opinion that it cannot be and it should not be interfered with by this Court under Article 226 of the Constitution.

6. In the view I have taken, this application must fail and is, accordingly, dismissed. Rule Nisi is discharged. Interim order, if any, is vacated. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //