{"id":239638,"date":"1971-07-14T00:00:00","date_gmt":"1971-07-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nazla-rob-vs-the-commissioner-of-wakf-west-on-14-july-1971"},"modified":"2018-03-06T18:30:42","modified_gmt":"2018-03-06T13:00:42","slug":"nazla-rob-vs-the-commissioner-of-wakf-west-on-14-july-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nazla-rob-vs-the-commissioner-of-wakf-west-on-14-july-1971","title":{"rendered":"Nazla Rob vs The Commissioner Of Wakf, West … on 14 July, 1971"},"content":{"rendered":"
Calcutta High Court<\/div>\n
Nazla Rob vs The Commissioner Of Wakf, West … on 14 July, 1971<\/div>\n
Equivalent citations: AIR 1972 Cal 389<\/div>\n
Author: S Mukharji<\/div>\n
Bench: S Mukharji<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Sabyasachi Mukharji, J. <\/p>\n
 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.\n<\/p>\n
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:–\n<\/p>\n
  “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.”\n<\/p>\n
Section  32 also   is in the following terms:–\n<\/p>\n
 “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 :\n<\/p>\n
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.”\n<\/p>\n
 “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:–\n<\/p>\n
“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.”\n<\/p>\n
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:–\n<\/p>\n
 “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–\n<\/p>\n
(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<\/p>\n
(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.”\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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<\/a> at Calcutta, . 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.\n<\/p>\n
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.\n<\/p>\n
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.<\/p>\n","protected":false},"excerpt":{"rendered":"
Calcutta High Court Nazla Rob vs The Commissioner Of Wakf, West … on 14 July, 1971 Equivalent citations: AIR 1972 Cal 389 Author: S Mukharji Bench: S Mukharji 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[22,8],"tags":[],"class_list":["post-239638","post","type-post","status-publish","format-standard","hentry","category-calcutta-high-court","category-high-court"],"yoast_head":"\nNazla Rob vs The Commissioner Of Wakf, West ... on 14 July, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nazla-rob-vs-the-commissioner-of-wakf-west-on-14-july-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nazla Rob vs The Commissioner Of Wakf, West ... on 14 July, 1971 - 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