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Chakravartti, C.J.—This appeal raises two questions of some importance under two sections of the Bengal Wakf Act. The facts are as follows. There Jived at one time one Muslim Peer or holy man of the name of Syed Shah Ali Abdul Quader alias Syed Shah Morshed Ali, who was highly venerated by a large section of the people of the Islamic faith. His tomb, which is situated at a place called Mirza Bazar in the town of Midnapur, has come to be known as Mazar Shareef and become a shrine. After the Peer, his descendants also have been functioning as spiritual preceptors and they have acquired a large body of disciples; who now form a religious Order, acknowledging the Peer as its Patron Saint.
On the 9th August, 1931, a pious Muslim of the name of Asraf Ali Khan Choudhuri made a wakf of his share of a house in Calcutta, namely, Premises No. 23 Khanka Shariff Lane, for the maintenance of the shrine and on the 24th August, 1933, the remaining co-sharer of the house, one Syed Abdus Salik, made a similar wakf of his share of the same house. The deeds of wakf provided that the first Mutwalli would be one Hazrat Moulana Syed Shah Irshad Ali Al Quadari, referred to in these proceedings by the compendious and convenient term ''Hazrat Sahib'' and that after him, whoever among his male descendants might come to be the Sajjadanasheen, would be the Mutwalli. Hazrat Sahib, who was a direct descendant of the Peer and the then Sajjadanasheen of the Order, acted as Mutwalli till his death. He died on the 6th February, 1953, and immediately thereafter the dispute which has given rise to the present appeal commenced in the following way.
The wakfs are enrolled under the Bengal Wakf Act as a single wakf. Section 47 of that Act provides inter alia that in the case of any change in the management of an enrolled wakf by reason of the death of the Mutwalli, the incoming Mutwalli shall notify the change to the Commissioner on pain of suffering a penalty in the event of his not doing so. On the 13th March, 1953, the eldest surviving son of Hazrat Sahib, Syed Shah Mustarshid Ali Al Quadari, made an application for the substitution of his name as Mutwalli on the ground that he had succeeded his father as Mutwalli, being "his eldest surviving son and Sajjadansheen." The implication was that he had become the Sajjadanasheen by reason of his being eldest surviving male descendant of the last holder of the position and that consequently he had succeeded to the office of Mutwalli under the terms of the deeds of wakf. The application was opposed by Syed Shah Kushaid Ali Al Quadari, the second son of Hazrat Sahib, who wanted the substitution of his own name on the ground that, before his death, Hazrat Sahib had nominated him to be the next Sajjadanasheen by a written Washiatnama. On the 17 April, 1953, a representation, purporting to be a submission from some disciples of Hazrat Sahib and supporting the case of the second son was received in the office of the Commissioner. Confronted with rival claims of two sons of the late Mutwalli, one claiming the office under the rule of primogeniture and the other claiming it on the strength of an alleged nomination, the Commissioner held an enquiry at which the second son examined one witness, but the eldest son examined none. He, however, challenged the Washiatnama as a forgery and appears also to have contended that the devolution of the office of Sajjadanasheen was governed by the rule of primogeniture, nomination of the successor by the outgoing Sajjadanasheen being not permissible or known. The effect of the enquiry held by the Commissioner was to reveal to him that the dispute involved questions which he was not competent to decide, such as the genuineness or otherwise of the alleged Washiatnama and the rule of succession governing the spiritual office of Sajjadanasheen with which he, as the Commissioner of Wakfs, had normally no concern. In that state of the facts, the Commissioner took the view that the parties ought to have recourse to the civil court for a decision as to which of them was entitled to the office and apply to him for necessary action after a decision had been obtained. In the meantime, the administration of the wakf had to be carried on. The Commissioner thought that the case before him presented a situation to which section 40 of the Act applied and that he could appoint a temporary Mutwalli under the provisions of that section. Accordingly, he appointed Syed Shah Rasheed Ali Al-Quadari, the third son of Hazrat Sahib, who had not figured in the conflict and who, the Commissioner thought, was likely to command respect and co-operation from all persons interested in the wakf. The order of the Commissioner was made on the 13th October, 1953. but the actual appointment of the third son was by a subsequent order, dated the 9th November following.
Against the orders of the Commissioner the eldest son moved this Court under Article 226 of the Constitution and asked for a writ in the nature of certiorari upon the Commissioner directing him to send up the records of the case in order that his orders might be quashed, a further writ in the nature of mandamus, directing the Commissioner to forbear from giving effect to his order and for directions upon the Commissioner and the remaining two sons of Hazrat Sahib, restraining them from acting upon or giving effect to the two orders concerned. Sinha J., who heard the application, at the final hearing of the Rule nisi issued, allowed it and granted the prayers made, except that he limited his order to the order of the 13th October, 1953, and made no order against the second son. Thereafter, the Commissioner of Wakfs preferred the present appeal. The respondents to the appeal are the three sons of Hazrat Sahib, but of them, the second and the third have not appeared before us.
It will be convenient to refer at this stage to the relevant statutory provisions and rules in order that the contentions of the eldest son and grounds of the learned Judge''s order may be the better understood.
The Bengal Wakf Act is an Act passed for making "provision for the proper administration of wakf property in Bengal." By section 7 it requires the State Government to form and establish a body, called "the Board of Wakfs" and by section 16 it provides for the appointment of an officer, called the Commissioner of Wakfs. The Commissioner is the President of the Board. The functions of both the Board and the Commissioner are set out in general terms in section 2'' the Act, but there are other sections which confer specific powers or impose specific duties on both the Board and the Commissioner. One such section concerning the Board is section 40 which is in the following terms:
In the case of any wakf of which there is no mutwali or where there appears to the Board to be an impediment to the appointment of a mutwali the Board, subject to any order of a competent Court, may appoint for such period as it thinks fit a person to act as mutwalli.
Another section confers on the Board the power to delegate its functions. It is section 29 and is expressed as follows:
The Board may, from time to time, authorise 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.
Use of the power conferred by section 29 was made by the Board at a very early stage of its existence. On the 24th April, 1936 it adopted a resolution which, so far as is material, reads as fallows:
(2). In exercise of the powers vested in them u/s 29 of the Act, this Board resolve that the Commissioner of Wakfs be authorised to exercise and perform, subject to the control and approval of this Board, the following powers and duties conferred or imposed on this Board by the sections of the Act mentioned against each case:--
(a) ** ** **
(b) ** ** **
(c) The powers of this Board u/s 40 to appoint a temporary mutwalli.
The resolution, however, has to be read along with certain rules framed by the State Government. The rulemaking power is derived from section 84 of the Act which is of the usual pattern, sub-section (1) saying that the State Government may make rules for carrying out the purposes of this Act and sub-section (2) specifying, without prejudice to the generality of the powers conferred by sub-section (1), a number of matters for which the State Government may by rules provide. None of the items specied and enumerated in sub-section (2) is relevant for the present purpose, but in exercise of the general power conferred by sub-section (1) of section 84, the State Government made certain rules on the 31st of March, 1937. "regarding the appointment by the Board of Wakfs in certain cases u/s 40 of the Act, of persons to act as mutwallis." The two rules framed by the State Government read as follows:
If it appears to the Commissioner that there is no mutwalli, in the case of any wakf, or that a vacancy in the office of the mutwalli has been caused by death resignation, retirement or removal of the former mutwalli and a dispute has arisen between two or more rival claimants to the vacancy, and such dispute is likely to affect the interest of the wakf, he may institute an enquiry and report the result thereof to the Board with his recommendation"
"On receipt of the report and the recommendation from the Commissioner, or on its own motion, the Board may appoint a mutwalli u/s 40 of the Act.
The above are all the provisions of law to which reference need be made. The only complaint made by the eldest son in his application to this Court was that he had been given no opportunity to cross-examine the witness called by the second son and to adduce evidence of his own and that the appointment of the third son had been made without notice to him. Except that the orders of the Commissioner were called ultra vires in one of the grounds, no point was raised in the body of the petition as to the Commissioner having acted without legal authority or in excess of his powers under the Act. The attack led in the course of the argument, however, was based solely on the Act and the rules. The judgment of the learned Judge does not show that anything was said about denial of opportunity or want of notice.
The contentions advanced on behalf of the eldest son, which the learned Judge accepted, were, first, that section 40 of the Act did not apply to the case at all, inasmuch as it was not a case where there was no Mutwalli or there was an impediment to the appointment of a Mutwalli; secondly, that assuming section 40 applied, the Commissioner''s order was still bad, inasmuch as there had been no delegation by the Board of its functions under the first part of section 40 which were duties and not powers and, therefore, not covered by the resolution of 1936. With great respect none of these contentions is in my view, correct.
In construing an Act, it must always be borne in mind what its object is and expressions occurring in it must be given a meaning which aids the attainment of that object rather than its frustration, unless it be wholly impossible to do so. Words of a wide content may require to be construed in a limited sense and so may words of a general significance have to be read as carrying only a particular meaning. Abstract notions are wholly out of place. The object of the Wakf Act is essentially a practical object which is proper administration of wakf properties and section 40 is directed at providing means for the removal of one possible difficulty in the way of a continuously proper administration. The difficulty contemplated is a temporary gap in the succession of Mutwallis caused by the absence of a Mutwalli entitled to the office in law or a vacancy in the office in fact, owing to the rightful Mutwalli not being available or no one being available with such a clear title then the Commissioner can accept him on his own responsibility. In a case, where the difficulty arises in one or other of these forms, the administration of the wakf is in jeopardy and section 40 empowers the Board to avert the danger to the proper administration of the wakf by taking a temporary measure of an emergent character and providing an interim Mutwalli for discharging the duties of the office. The difficulty which the section has in view is the administrative difficulty of a body interested in having a Mutwalli in office for every enrolled wakf and yet having no legal authority to appoint a permanent Mutwalli, when the succession has for some reason come to an end, and no judicial power of deciding the dispute, when there are several claimants, each with a plausible claim. It is in the light of that difficulty that the expressions "where there is no mutwalli" and "where it appears to the Board that there is an impediment to the appointment of a mutwalli" are to be construed. The learned Judge, appears to think that the first expression applies only to a case where no rightful or de jure Mutwalli is in existence, but I am unable to accept that contention. The Board of Wakfs is concerned not with the mere existence of a rightful Mutwalli, but with the occupation by him of the office and I am of opinion that even where a de jure Mutwalli exists but it is not known who he is or, although known, he is not forthcoming to take up the duties of the office, there is no Mutwalli from the Board''s point of view. I am not sure whether even where the existence of someone, who must be the true Mutwalli is not in doubt, but there is a doubt as to who he is, which the Board is powerless to resolve and rival claims, none of them palpably unsubstantial, are being put forward, it may not be said that such a case also is a case of there being no Mutwalli for the purposes of the Board. I need not, however, proceed further with the consideration of the first expression, inasmuch as the learned Judge below has dealt particularly with the second. Even assuming that the last hypothetical case, I mentioned just now, is not a case, where it can be said that there is no Mutwalli, I am clearly of opinion that where different persons are putting forward claims to the Mutwalliship of a wakf, and it cannot be said that the claims of all but one are plainly unfounded or palpably not bona fide, there is an impediment to the appointment of a Mutwalli for all practical purposes and an impediment within the meaning of section 40. The learned Judge appears to think that the impediment contemplated by the section is legal impediment and cites by way of illustration the cases of minority, unsoundness and apostacy. If he was thinking of an absolute impediment which even Courts could not get over, he was, with great respect, not right, either as to the theory formulated or as to the illustrations given. The section does not speak of an impediment to the appointment of a particular person as Mutwalli, but of "impediment to the appointment of a mutwalli" I need hardly point out that there is no absolute impediment which can prevent the appointment of any Mutwalli at all. In a case, where the person, otherwise entitled to the office, is a minor or of unsound mind, the Court may appoint another person to hold the office during the subsistence of the disability and in the case of apostacy, it will appoint the person next in order of succession as if the apostate had ceased to exist. Again, the section speaks of impediment, not impossibility. Even when the appointment of a Mutwalli is possible, as it always is, but there is some difficulty in the way which has first to be overcome, there is to my mind, an impediment to an appointment within the meaning of the section Thus, to take the illustration given by the learned Judge, when the person otherwise entitled to the office is a minor or a lunatic there can be no immediate appointment of a Mutwalli because the Court must hold a proceeding for the purpose of appointing another man and, to that extent and so long as the difficulty created by the disability is not removed, there is clearly an impediment to the appointment of a Mutwalli and to the filling up of the office. Much more is there an impediment when several claimants, each with a plausible claim, have entered upon a contest for the office, because till the issue of the contest is decided, there can be no appointment and the office cannot be filled. The won "appointment", I should think, has not been used in the section only in the sense of the appointment of a new Mutwalli, that is to say in the sense of the creation of a Mutwalli, but also in the sense of the actual installation in the office. It appears to me that in construing the words "impediment to the appointment of a mutwalli", it ought not to be forgotten that the section is considering the situation from the point of view of the Board and the impediment which it contemplates is primarily an impediment which the Board finds and feels, not to the possibility of making any appointment at all, but to an immediate appointment being made by the competent authority. The Board being charged with the administration of wakfs is vitally interested in seeing that the office of the Mutwalli of an enrolled wakf is occupied and not left vacant. When it finds that there is a vacancy but no successor is ready to hand to take up the office and that some difficulty must be removed and some delay must occur before either an appointment can be made or the rightful Mutwalli ascertained and installed in the office, there is a case where it may properly be said to appear to the Board that there is an impediment to the appointment of a Mutwalli. Such a situation can arise in various forms. To recall an illustration, I gave in the course of the argument, a deed of wakf may provide that the successor to a Mutwalli shall be elected by a majority vote of his descendants, provided, however, not less than 3/4 of those descendants and present at the meeting and vote, but the requisite minimum of descendants may not be present in the country at the time of Mutwnlli''s death. Again, some person, otherwise entitled to the office, may be a minor or a lunatic or the question as to what is the rule of succession, or who is entitled to succeed may require an enquiry and decision, so that no immediate appointment can be made and so far as the actual occupation of the office of a Mutwalli is concerned, there is an impediment In each of the cases, I have instanced there is, to my mind, an impediment to the appointment of a Mutwalli, an impediment to the appointing authority, because it cannot proceed straightaway to make an appointment and an impediment to the Board, because it cannot find anyone at the time whose name it can register as the succeeding Mutwalli and whose occupation of the office it can recognise. Judged by these principles, it appears to me that when a number of persons are claiming the office of a Mutwalli and the claims are such that they require to be adjudged by a competent authority before an appointment can be made or the rightful Mutwalli ascertained, there is a clear case where it may properly appear to the Board, that there is an impediment to the appointment of a Mutwalli. I am accordingly unable to accept the contention of the eldest son in this behalf or the conclusion of the learned Judge.
I might refer in passing to one small point, lest it should be thought that I overlooked it Since the words under the second alternative are "or where there appears to the Board to be an impediment to the appointment of a mutwalli", it might be said that the learned Judge had been wrong in going into the question as to what was or was not an impediment, because the Legislature left the matter to the opinion or judgment of the Board. Such criticism, to my mind, would not be justified. Although a statute may leave a matter to the opinion or satisfaction of a particular authority, Courts of Law are always entitled to see whether such authority has proceeded on proper considerations or considerations wholly foreign to the subject-matter of the provision. Sinha, J., proceeded on the view that the existence of rival claimants could not create a situation where it could be said that there was an impediment to the appointment of a Mutwalli. If such a situation does not create an impediment, the Court would be entitled to say so and hold the Board, if it made an order of appointment, to have acted illegally or in excess of its powers. If, therefore, Sinha, J''s, premise had been right, no exception would be valid against his method of approach or the conclusion arrived at by him.
The learned Judge next held that even if section 40 applied, the Commissioner''s order was still bad, because the duty of forming an opinion as to whether there was an impediment to the appointment of a Mutwalli had not been delegated to the Commissioner by the resolution of 1936. He conceded that even if a power depends for its exercise on the subjective satisfaction of the done as to a certain matter, it can be delegated if the statute provides for delegation. That proposition was not disputed before us and indeed it cannot be disputed. The learned Judge has also not held that the Wakf Act does not provide for the delegation of the whole of the Board''s functions u/s 40 and indeed, in view of the terms of section 29, he could not have so held. What he has held is that the resolution of 1936 delegates only "the power of the Board u/s 40 to appoint a temporary mutwalli", but it does not delegate the duty imposed by the section and that therefore, it does not delegate the function of forming an opinion as to whether an impediment existed, which is a duty and not a power.
With great respect, I am unable to agree with the learned Judge. The function of the Board under the second alternative in section 40 is undoubtedly a composite function, but the part concerned with the formation of an opinion and the part concerned with the making of an actual appointment are not so mutually exclusive, one being a duty and the other being a power, that unless the words of delegation mention formation of an opinion specifically or at least include the word "duty", the first part of the functions cannot pass to the delegate. Once again, I would recall that the object of section 40 is a practical object, that of filling a vacancy for the time being by a temporary appointment and that the object of section 29 is also a practical object which is securing performance by the Commissioner of the functions of the Board for the sake of administrative convenience. What we have to consider here is the true construction of the resolution passed in 1936, that is, what the Board meant when it passed the resolution and what the effect of that resolution, as expressed, is, I cannot imagine that when the Board authorised the Commissioner to exercise its powers u/s 40 to appoint a temporary Mutwalli, it intended to delegate anything less than the whole of its functions under the section Nor did it fail to express that intention by the words it chose. What section 40 really does is that it confers a power on the Board and the formation of an opinion as to the existence of an impediment under the second alternative is only a pre-condition attached to the power, which must go with the power when the same is delegated, unless it is specifically reserved. Refinements such as the division of the Board''s functions u/s 40 into a duty and a power, one independent of the other, appear to me to be out of place. Certain things may have to be done before the power is assumed and exercised, but the functions relating to those antecedent matters are essential concomitants of the power itself and when the power is delegated, those functions must necessarily pass with it. It is possible, I agree, to imagine a case where the Board retains in its own hands the function of forming an opinion as to whether an impediment exists and delegates to the Commissioner only the power to making the actual appointment of a Mutwalli. But in order to make such a limited delegation, the Board would have to use very different words. When the power to appoint a temporary Mutwalli u/s 40 is delegated in general terms, the whole of the power, including the preliminary function of forming an opinion, is, in my view, delegated. With great respect, the learned Judge, I am constrained to say, was not right in holding to the contrary.
The learned Advocate-General, who appeared before us to support the eldest son, referred to the decision in the case of Robinson v Sunderland Corporation (1) [(1899) 1 Q. B 751], and contended that it supported the view put forward by him, namely, that the function of forming an opinion as to the existence of an impediment was a duty, as distinguished from a power. I confess that I am entirely unable to see what possible bearing that case can have on the question before us. The section which fell to be construed in that case was section 36 of the Public Health Act of 1875. It provided that if a house within the district of a local authority appeared to such authority to be without a sufficient water-closet, earth closet or privy and the owner did not provide the house with the convenience even after receipt of a notice from the local authority, such authority might, at the expiration of a certain time, do the work and supply the convenience itself and then recover the expenses from the owner. Some question was raised in the case as to the extent to which the Courts might examine the action of the local authority in view of the words "appears to such authority", occurring in the section. The opinion expressed by the Court is what has become familiar now and almost a matter of trite knowledge in cases of this kind. Channel, J., to whose judgment the learned Advocate-General specifically referred, did use the word "obligation" once or twice while saying that if the local authority did not do something which it was obliged under the law to do, the court might, to that extent, examine the procedure adopted by it and pronounce adversely thereon. I do not find any discussion of any kind in the case which bears upon the distinction between duty and power or upon the question as to what language would be required to delegate a duty when such duty was attached to a power. Nothing further need be said about that case.
The learned Advocate-General also contended that even assuming that the whole of the functions of section 40 could be delegated by an order, expressed as delegating "the power to appoint a Mutwalli", a general delegation for all cases could not still be made, because section 29 spoke of the Board authorising the Commissioner "from time to time". It was said that by reason of those words, the only way in which the Board could exercise the power of delegation would be to make a separate delegation on each occasion in respect of a particular and individual wakf as and when occasion might arise. No general delegation was, it was contended, within the purview of the Act. I have already read the language of section 29. I cannot see why under the words used in the section, the Board cannot delegate some of its powers on one date and then some other powers on a subsequent date and so on different occasions, but making a general delegation every time. I do not think that such reading of the phrase "from time to time" should require any authority in its support, but I have been able to trace a case decided by the House of Lords where exactly the same contention was advanced and unanimously negatived. The case is reported as William Lawrie v. George Lees, 7 App. Cas. 19. It appears that one Sir Henry Meux, who was the owner of a large estate, including an interest in a partnership carrying on the business of a brewery known as ''Horse-shoe'', had gone out of his mind and thereupon a private Act, called Sir H. Meux''s Settled Estate Act, 1863, was passed. Section 3 of that Act, so far as is material, ran as follows :
The Lord Chancellor may from time to time, so long as the said Sir Henry Meux and his estate shall continue to be subject to the jurisdiction in lunacy, order or direct to be done, permitted and suffered with respect to the business of the ''Horse-Shoe'' brewery, and the said partnership * * * * all and whatsoever Sir Henry Meux, if of sound mind, might do, permit or suffer or concur in doing, permitting or suffering with respect to the same.
The expression "Lord Chancellor" was defined as including Lords Justices. In exercise of the power conferred by section 3 of the Act, Lords Justices made an order that two named persons, acting as committees for the lunatic, should be at liberty, with the approbation of the Master in Lunacy, to concur in and execute documents of various specified kinds including leases. Under the authority of that order, a lease was executed in respect of the brewery and the contention before the House of Lords was that in view of the expression "from time to time" in section 3 of the Act, the Lord Chancellor or the Lords Justices would have to exercise the power given each time separately and by a separate instrument and that no such general authority as had been conferred by the Lords Justices by their order was warranted by the Act. Dealing with that contention, Lord Penzance, L.C., observed as follows:
The complaint against that order is that the Lord Chancellor, or those who were acting in his place, instead of making a separate order upon every occasion when a public-house had to be let with respect to the execution of a lease of it, has made a compendious order, giving power to the committees to execute leases on behalf of the lunatic whenever those leases are approved of by the other partners in the brewery and whenever they have received the sanction of the Master in Lunacy. It is said that that was ultra vires; * * * * * * it is argued that the words ''from time to time'' lead to the infer-once that upon every separate occasion the Lord Chancellor was to act himself, that the matter being brought before him in a proper way by affidavits, after having been brought before the Master in Lunacy, and the report of the Master in Lunacy being brought up to him, the Lord Chancellor should exercise his discretion upon it." The Lord Chancellor, after setting out the contention as above, proceeded to give his decision as follows :
It seems to me that that would be a construction of a most inconvenient character. It is not one which I think your Lordships would lightly adopt, and I see no reason whatever for adopting it, because the words ''from time to time'' are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words ''from time to time'' is that after he has made one order, he may make a fresh order to add something to it, or take something from it, or reverse it altogether; and as that meaning gives sufficient force to the words and explains the use of them here, it seems to me that your Lordships ought not to go further and to narrow these words by any construction which would throw impediments in the way of carrying on the business whereas the object of the Act was to facilitate it.
Lord Blackburn was so impatient with the argument that he said that he hardly knew whether he would call, it an argument at all. "The argument, " observed the noble and learned Lord, "indeed I hardly know whether I should call it an argument, the point raised was that as the Act of Parliament said that the Lord Chancellor might do it ''from time to time'' he must do it by a fresh and separate instrument every time he did it. I cannot agree in that at all. I think that the order under the Act was intended to be just such an order as the Lords Justices, giving a sensible interpretation to it have made.
I do not think I need pursue this point further In my view, the occurrence of the words "from time to time" in section 29 does not entail the consequence that the Board can delegate its functions only by making a separate order in respect of each individual wakf when occasion arises and that no general delegation can be made.
Another point which was raised in the course of the argument in passing requires to be noticed. The rules framed by the local Government, which I read a few minutes ago do contemplate that the appointment of a temporary Mutwalli will be made by the Board itself. It may also be conceded that Rule 1 is based on the assumption that a dispute between two rival claimants creates a situation where there is an impediment to the appointment of a Mutwalli. It appears to have been contended before the learned Judge that in so far as Rule I proceeded on the footing that a dispute between two rival claimants was a case of an impediment, it was ultra vires, inasmuch as section 40 did not contemplate such a dispute and therefore the rule, so far as it purported to add to the statute, was void. I have already held that the existence of a dispute between rival claimants, whose claims are plausible claims, does create a situation where it may properly appear to the Board within the meaning of section 40 that there is an impediment to the appointment of a Mutwalli. I would still say, however, that it was not proper for Government to frame a rule and say by way of an administrative direction in what circumstances a particular section of the Act was to be applied and in what sense or manner. The other point taken before the learned Judge, but not decided by him, was that if the functions of the Board u/s 40 had been delegated to the Commissioner, he had become the Board and if he had become the Board, the scheme of the rules created an absurd and impossible situation in that he, as the Commissioner, would make a report to himself, as the Board, and would then take action upon his own report. The resolution of 1936, it seems to have been suggested, was not consistent with the rules subsequently framed in 1937 and could not stand alongside them. It appears to me that this argument was based upon a misreading of the rules and also a misconception as to the effect of the delegation. In the first place, if the statute does give the Board the power to delegate its functions, the State Government cannot by rules provide or require that, nevertheless, the Board must never make a delegation and must always exercise the functions itself. If, therefore, the rules contained any such direction, they would not be rules carrying out the purposes of the Act, but rules defeating or running counter to that purpose. The rules, however, do not, to my mind, bear any such meaning, nor is there a conflict between the rules and the resolution. All that the rules seek to do is to define a situation in which the Commissioner will make a report to the Board, but in all other respects, the scheme of the Act which, apart from the power to delegate, is that the Board shall appoint a temporary Mutwalli, is adhered to The rules, therefore do not purport to add to the statute. It may, however, be thought that there is a conflict between the resolution and the rules, because whereas the rules proceed on the footing that the Board shall make the appointment, the resolution delegates the power to the Commissioner. There is, to my mind, no real conflict, because by making the delegation to the Commissioner, the Board did not deprive itself of the power of making an appointment on a particular occasion, if it so chose. It only authorised the Commissioner to exercise the power of appointing a temporary Mutwalli and, I believe, it is well settled that by such authorisation, the party making it does not lose the power to exercise for him self the functions authorised, if he so chooses. In the second place, the fact that the Commissioner has been authorised to exercise the powers of the Board u/s 40 does not involve that he must exercise the powers on every occasion and may not leave it to the Board to do so after making a report to it in terms of the rules All that the resolution says is that the Commissioner may exercise the powers of the Board u/s 40 to appoint a temporary Mutwalli and that he is authorised to do so "subject to the control and approval of this Board." It thus appears to me that the rules and the resolution may well co-exist, because the original powers of the Board and the powers of the Commissioner under the delegation can also co-exist, as they apparently are doing. In my view, no argument against the impugned orders can be drawn from the rules.
It was lastly contended by the learned Advocate-General that the Commissioner had not acted properly in-making the appointment, because this was pre-eminently a case, where he should have exercised his powers u/s 73 of the Act and brought a suit for himself. It is not too clear to me that section 73 has any application. Neither section 92 of the Code of Civil Procedure, nor section 14 of the Religious Endowments Act would seem to cover the present case. But assuming they did, I am entirely unable to see why it should be held that the Commissioner acted improperly in not spending the moneys of the wakf fund for the purpose of establishing the right of one or other of the claimants, to the Mutwalliship of a single wakf. We are informed that the income of this wakf is only about Rs. 600. per year. I do not desire to be uncharitable, but probably the zeal with which the dispute is being prosecuted is ac-counted for partly by the situation of the wakf property, which appears to me to be the house next contiguous to the residential house of the contending parties, at least of the eldest and their son. It appears to me that if the sons of Hazrat Sahib cannot come to a settlement between themselves as to which of them is to be the Sajjadanasheen and consequently the Mutwalli, it is for them to obtain a decision from the civil Court and the Commissioner cannot justly be expected fight their battle at public expense. In any event, one could not quash orders of the Commissioner under Article 226 of the Constitution on the ground that he should have filed a suit, if the orders actually passed by him were passed in exercise of powers conferred upon him by the Act and did not transgress the limits set by the empowering provision.
This appeal was heard about five or six days ago and judgment was reserved. It was brought to our notice this morning by Dr. Sen Gupta that the appointment of the third son of Hazrat Sahib was made on the 9th November, 1953, and it was an appointment "for a period of one year or until further order." The period for which the appointment was made has therefore, expired. I do not, however, think that the expiry of the period for which the appointment was made affects the appeal in any way, inasmuch as the learned Judge quashed the order of the 13th October, 1953, and if he acted wrongly and laid down principles which were erroneous but would bind the Commissioner, this Court would be entitled to set the matter right and say that the power under Art. 226 had not been properly exercised. It was pointed out to us by the learned counsel for the Commissioner of Wakfs that no further order could be made by his client in view of the writ in the nature of a mandamus issued against him, directing him to forbear from giving effect to the original order. In that state of the facts, we do not think that the expiry of the period of the appointment makes any difference as to the way in which this appeal should be decided. Had the earned Judge refused to quash the orders and if the prayer in this appeal were that they should be quashed, the position would have been different, because the impugned orders having ceased to exist, there would be nothing for the Court to quash.
For the reasons I have just given, this appeal is allowed. The judgment and the order of the learned Judge are set aside and the application of Hazrat Syed Shah Mustarshid Ali Al-Quadari respondent No. 1, is dismissed.
The Commissioner of Wakfs will have from respondent No. 1, his costs of this appeal and costs before the learned Judge. Certified for two Counsel.
Lahiri, J.
I agree.