- (1.) The subject-matter of challenge in both the Rules is the order, dated February 7, 1975 passed by the Commissioner of Wakfs, West Bengal under Section 46-A of the Bengal Wakf Act, 1934 in respect of an enrolled Wakf estate -dedicated by one Abdul Rahman Middya. The Commissioner by the said order after cancelling the previous classification re-classified the same as a public wakf. The Commissioner also directed that the name of Wali Md. Middy had been correctly recorded as mutwalli of the said wakf estate and the names of Kasem Ali Middya and Md. Yahya Middpa be recorded as mutwallis with Wali Md. Middya as the Managing Mutwalli. The petitioner in CR 1739 of 1975 have impugned the said order of the Commissioner so far as the same recorded the above persons as mutwallis of the said wakf estate. The petitioners in CR No. 12045 (W) of 1975 have challenged the re classification of the wakf as a public wakf.
(2.) For the reasons, presently given, I am not inclined to interfere with the above order. The Commissioner under Section 46-A has been vested with power to decide the following two questions: (i) whether a particular property is a wakf property or not; (ii) whether the wakf is a wakf-al-al-aulad or not. A decision under Section 46-A although final can be revoked or modified by a competent Court. Therefore, it is open to the parties to institute civil proceeding for establishing their respective contentions regarding the nature of the wakf in question - whether a public one or a wakf-al-al-aulad. In order to satisfactorily determine whether under the dedication of properties not less than 75% of the net available income was payable to the wakf for himself or any members of his family and descendants, the court may have to take both oral and documentary evidence. Further, a construction of the deed or deeds by which wakf had been created could be necessary. The petitioners in CR 12045(W) of 1975 have also questioned the validity of the subsequent deeds or instruments relating to the wakf in question. The petitioner in CR 1739 of 1975 has challenged the locus standi of these persons to file any objection under Section 46-A. As already observed the matters of dispute can be more satisfactorily decided in a Court which can receive both oral and documentary evidence. Therefore, it would be in consonance with justice to relegate the parties to suit. It would be open to them to bring appropriate civil proceeding for revocation or modification of the impugned order of the Commissioner in a competent Court.
(3.) On the present materials on record I am unable to accept the contention of the petitioners in CR 12045 (W) of 1975 that ex facie the impugned order of the Commissioner re-classifying the wakf as a public one is without jurisdiction. The petitioners in CR 12045 (W) of 1975 did not allege before me that there was any previous order under Section 46-A pronouncing the wakf in question as wakf-al-al-aulad. The Commissioner under Section 46-A undoubtedly exercises the quasi-judicial functions. A mere order allowing an application under Section 44 (1) for enrolment of a wakf cannot be considered as a decision in terms of Section 46 A. Similarly, subsequent order, if any, by the Commissioner amending under Section 46 the Register of Wakfs is not a determination under Section 46-A. The materials on record do not establish either expressly or by implication that the question whether wakf is a public one or not was raised at the time of original enrolment or at subsequent stages when relevant entry.in the Register was amended by recording the name of new Mutwallis in place of the deceased one.;