HAZRAT SYED SHAH MASTARSHID ALI AL QUADARI Vs. COMMISSIONER OF WAKFS WEST BENGAL

JUDGEMENT

(1.) This appeal is as much without substance, as it was unnecessary. Hazrat Syed Mastarshid Ali Al Quadari (the appellant) is the eldest son of one Hazrat Sahib Syed Shah Mastarshid Ali Al Quadari (shortly, Hazrat Sahib), the first Mutawalli 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, claiming to succeed to his father as Sajjadanashin, being his eldest son, made an application to the Commissioner under the Bengal Wakf Act. His younger brother, Syed Shah Rushaid Ali Al Quadari, opposed his claim, the ground being that he was nominated as the successor by Hazrat Sahib. While this controversy was afoot, the Commissioner, acting under S. 40 of the Bengal Wakf Act, appointed Syed Shah Rasheed Ali Al Quadari (the third son of Hazrat Sahib) as a temporary Mutawalli. The appellant then moved a petition in the Calcutta High Court under Art. 226 of the Constitution against the appointment, which was allowed by Sinha, J., and the order of the Commissioner was set aside. On appeal to the Divisional Bench, consisting of Chakravarti, C. J. and Lahiri, J. (as he then was), the order of Sinha, J., was reversed, and the petition was dismissed. This appeal has been filed with special leave.

(2.) It is contended in this appeal that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the Rules framed by the Government, only the Board constituted under the Bengal Wakf Act could make the appointment. This argument, in our opinion, is wholly unsound. The learned Chief Justice of the High Court examined the matter at great length in reaching his conclusion; but, in our opinion, the reasons can be stated within a narrow compass.

(3.) We are concerned with Ss. 40 and 29 of the Bengal Wakf Act. Section 40 and 29 of the Bengal Wakf Act. Section 40 reads as follows: