Abi Saghir v. Bibi Asia Bano — 1953 DIGILAW 171 (PAT)

Judgment Khaleel Ahmad, J. 1. The two applications in revision are both directed against a common order dated 16-4-1951 passed by the District Judge of Monghyr in the exercise of his powers given to him under Clause (3) of Sec.31, Bihar "Waqfs Act, 1947 -- Act VIII of 1948 --(hereinafter to be called Waqfs Act) modifying a scheme for the management of the Maulanagar Waqf Estate. Civil Revision No. 331 is on behalf of two persons, namely, (1) Syed Abi Saghir, one of the maintenance holders and beneficiaries under the Waqf and (2) Syed Shah Bashid Ahmad, Mutwalli of that estate and the other is on behalf of the Bihar Subai Sunni Majlis .Awkaf herein after to be called Majlis) through its President, Mr. S. Bashiruddin, Bar-at-Law. 2. The scheme which was the subject matter of modification under the order in revision was originally framed on 25th February, 1950 by the Majlis in the exercise of its powers given to it under Clause (1) of Sec.31 of the Waqfs Act. Subsequently, in accordance with the provision of law laid down in Clause (2) of Sec.31, it was published in the Bihar Gazette on 22-3-1950. On its publication, three persons, all claiming themselves as beneficiaries under the Waqf, namely (1) Bibi Saira, (2) Syed Abdul Jabbar and (3) Azim Khan, submitted through an application before the District Judge a number of their objections to the scheme published in the gazette on the ground that certain provisions stipulated therein were ultra vires of the powers and jurisdiction of the Majlis vested in it by the Waqfs Act. The main and substantial objections raised therein were three. First was against the provisions incorporated in rules 16 and 21 of the scheme which related to the allowance and removal of the sajjadanashin. The second objection was against the provisions of Rules 2 and 3 of the scheme reducing the number of members who were to constitute the managing committee from fifteen to eleven and shortening the term of the committee from five to three years. The last objection was against the amount of allowance allowed to the mutwalli under Rule 18 of the scheme and the suggestion was that the allowance of the mutwalli should not, in any case, exceed 15 per cent of the establishment charge. It appears that while the objection petition was still pending for disposal before the District Judge, Most. The last objection was against the amount of allowance allowed to the mutwalli under Rule 18 of the scheme and the suggestion was that the allowance of the mutwalli should not, in any case, exceed 15 per cent of the establishment charge. It appears that while the objection petition was still pending for disposal before the District Judge, Most. Bibi Saira died and she was substituted by her representatives in interest, (1) Bibi Asia Bano and (2) Bibi Asma Khatoon. It is the admitted case of the parties that no notice was given of the proceeding then pending before the District Judge to any beneficiary, or even to the mutwalli or as a matter of fact to any person interested in the Waqf save and except the president of the Majlis. The result was that when the matter came up for final hearing before the District Judge, the only persons then present before him were the president of the Majlis and the objectors. The District Judge, therefore, on hearing them alone disposed of the objections on 16-4-1951. By this order, he rejected some of the objections but accepted those directed against the provisions made in the scheme for the allowance and removal of the sajjadanashin and, accordingly, modified the rules 16 and 21 in his own way. As for the allowance of the mutwalli, he came to the conclusion that it should be left to be decided by the managing committee, if and when a mutwalli is appointed. 3. It further appears that from his point of view the scheme of the Majlis required modification in some other respects as well though no objection had been raised relating to them by the objectors in their application. He, accordingly, did not confine himself to modifying and varying the scheme to the points raised in the objection but went much beyond them & made many other drastic changes therein. These changes were principally based on two guiding principles. Firstly, that the office of sajjadanashin and mutwalli should be merged from here and now into one and that sajjadanashin alone should, thereafter, discharge the duties of both the offices. Secondly, that the mutwalli even if appointed under certain contingency should always act under the control and direction of the sajjadanashin. 4. Firstly, that the office of sajjadanashin and mutwalli should be merged from here and now into one and that sajjadanashin alone should, thereafter, discharge the duties of both the offices. Secondly, that the mutwalli even if appointed under certain contingency should always act under the control and direction of the sajjadanashin. 4. An order of the District Judge varying or modifying or setting aside a scheme on an application made under Sub-section (3) of Sec.31 is made final under "Sub-section (4) of that section. In spite of it, however, the petitioners being dissatisfied with the aforesaid order passed by the District Judge have come up in revision to this Court. 5. The main points for consideration, therefore, in the matter before us are; firstly as to whether the order passed by the District Judge is one passed in a case by a court subordinate to this Court and, secondly, as to whether the order, even if it is one passed in a case by a court is at all open to revision in the circumstances of the present case under Sec.115, Civil P. C. 6. Before I take up these two points, I would like to give a short history of this Waqf in order to, provide a clear background for appreciating the facts involved in the case and also the submis-sions made by the parties in support of their respective cases. Maulanagar Estate has its origin in the long past starting from the time of Shah Najimuddin alias Shah Maula, a saint of great repute who settled in Maulanagar sometime in the latter part of the seventeenth or in the earlier part of the eighteenth century A. D. In the course of time, grants were made in favour of the great saint and his successor, Shah Gholam Moula, in respect of Pargana Abhaipur and Mustafanagar which now form the bulk of the properties constituting the waqf. Originally, the Khankah and its properties were both under the governance and control of one dignitary, namely, Sajjadanashin though that office itself has been for sometime past the subject-matter of constant dispute between the members of the two rival lines now representing the family of Shah Gholam Moula, the successor of the original saint. Originally, the Khankah and its properties were both under the governance and control of one dignitary, namely, Sajjadanashin though that office itself has been for sometime past the subject-matter of constant dispute between the members of the two rival lines now representing the family of Shah Gholam Moula, the successor of the original saint. The last in this chain of disputes was one which came up to this Court in First Appeal No. 131 of 1928 between -- Shah Muhammad Kazim V/s. Abi Saghir, AIR 1932 Pat 33 (A). At that time, Shah Muhammad Kazim, the representative of the one line of the family of Shah Gholam Moula, was the sajjadanashin and he till then like all his predecessors in office was both the head of the Khankah and the manager of the Waqf properties. The other line then represented by Syed Shah Rashid Ahmad was not in power and did not hold any office of importance in the estate. The suit giving rise to that appeal was one under Section 92, Civil P. C. and was substantially for the removal of the said Syed Shah Muhammad Kazim from his office and also for the preparation of a scheme by the court for the management of the Waqf estate. The trial court had decreed it in full. The matter, thereafter, came in appeal to this Court. Here the decree was modified and the learned Judges who heard the appeal though agreed with the trial court that Shah Muhammad Kazim should be deprived of the power of the management of the Waqf property, allowed him to continue as sajjadanashin and further laid down some broad principles to be followed by the District Judge in framing a scheme for the management of the Khankah and the Waqf. A few of those principles which have some bearing on the facts of the case now before us are as follows, which I quote here in the order in which they are put in the judgment: "(3) That the defendant be removed from the office of the manager of the properties attached to the institution, but will continue as sajjadanashin of the Khankah till he is removed either in the manner provided in the scheme aforesaid or by the District Judge for any act of misconduct committed by him subsequent to this date. (4) That till such time as the defendant continues to be sajjadanashtn of the Khankah a manager or mutwalli shall be appointed in the manner provided in the scheme aforesaid. (5) That if on account of death, resignation or otherwise the defendant ceases to be the sajjadanashin, the manager to be appointed under Clause (3) shall also vacate office and a joint sajjadanashin and manager or a separate sajjadanshin and a separate manager shall be appointed in the manner provided in the scheme aforesaid. 7. The scheme shall provide for, among others, the following: (a) Provision for a sajjadanashin and a manager, the posts being held either by one or by two different persons, and the manner of their election, appointment and removal. (b) Provision for allowances to be paid to the sajjadanashin and the manager if the offices are held by one person and also when they are held by different persons. (c) Proportion of income to be spent on the religious, educational and charitable objects and the proportion to be distributed among maintenance-holders with due regard to the past usage. (d) Distribution of duties between the sajjadanashin and manager when the offices are held by different persons so that the sajjadanashin. may remain in charge of the religious duties and maintain them out of the funds provided by the manager. (e) Provision for the appointment of a committee of supervision for the preparation of the budget and supervising the works of the sajjadanashin and the manager. (f) Provision that the sajjadanashin and manager shall, as far as practicable, be from among the descendants of Shah Gholam Moula. (g) Provision for periodical audit of accounts and their inspection. (h) The scheme prepared shall be liable to be modified or altered as occasion arises on a proper application made to the District Judge." 7. Pursuant to the decree passed in the aforesaid first appeal, a scheme was ultimately framed on 30-5-1933, a copy of which is attached to the application in C. R. 333 as its annexure B, Rules 3 and 4 of that scheme read as follows: "(3) For the present the two posts of the Mutawalli and the Sajjadanashin shall be held by two different persons. (4) When the office of Sajjadanashin becomes vacant a successor shall be elected from among the descendants of Shah Gholam Moula by the Muslims maintenance-holders, whose votes shall have value in proportion to their shares. The District Judge shall himself hold or depute an officer to hold the election. Rules for the conduct of these elections shall be framed by the committee. The person so elected shall ordinarily hold the office of the Sajjadahnashin and also that of Mutawalli the latter office being forthwith resigned by the holder thereof, unless he should be the person elected as successor to the Sajjadahnashin, provided that if in the opinion of the District Judge the person so elected is not sufficiently competent to manage the property, or if there is any other ground of his so doing, he may order that that person should hold the office of Sajjadanashin only, in which case the Mutawalli, if any, who is at that time holding office, shall continue as such, or if there is no separate Mutawalli, the District Judge shall proceed to appoint one in the manner herein before provided. When the Sajjadanashinship and the Mutwalliship have been held by the same person, and the offices become vacant, the president of the Committee shall assume charge of the estate pending the election of a successor, which should be performed without undue delay." 8. In accordance with the scheme and the broad principles laid down in the judgment of the High Court Syed Shah Muhammad Kazim continued as before in the office of sajjadanashin of the Khankah but had, thereafter, no concern with the management of the Waqt property and for discharging that function, Syed Shah Rashid Ahmad was appointed mutwalli in the year 1934 by the order of the District Judge dated 23-7-1934 and till now he has been continuing as such. 9. Syed Shah Muhammad Kazim while still in office died sometime in the month of March, 1936. His successor in office, Syed Shah Mohammad Salim, who is in office till today and is the son of late Syed Shah Muhammad Kazim was elected to the office in the year 1938. 10. In between the date of death of Syed Shah Md. Syed Shah Muhammad Kazim while still in office died sometime in the month of March, 1936. His successor in office, Syed Shah Mohammad Salim, who is in office till today and is the son of late Syed Shah Muhammad Kazim was elected to the office in the year 1938. 10. In between the date of death of Syed Shah Md. Kazim & the date of election of his successor, two attempts were made to bring about some change in the office of the mutwalli, one, I think, by the opponents of the mutwalli and the other, perhaps, by his supporters. His opponents filed an application soon after the death of Syed Shah Muhammad Kazim asking the court to call upon him to resign his office in view of the fact that the office of the sajjadanashin had fallen vacant for, in their opinion, that was the direction given by the High Court in its order. The relevant portion of that order was to the effect: "That if on account of death, resignation or otherwise the defendant ceases to be the sajjadanashin, the manager to be appointed under Clause (3) shall also vacate office and a joint sajjadanashin and manager or a separate sajjadanashin and a separate manager shall be appointed in the manner provided in the scheme aforesaid." The then District Judge, however, ordered that it was neither necessary nor desirable for the mutwalli to vacate office until the successor of sajjadanashin was appointed. Thus that application failed. The second application was filed on behalf of those who wanted that the position of Syed Shah Rashid Ahmad as mutwalli should be made permanently stable &, therefore, they filed an application that unless a separate sajjadanashin and a separate manager was elected, there could be no peace in the estate, suggesting thereby, most lively that the two offices should be made permanent and not maintained only on a temporary footing as contemplated by the order of the High Court and the scheme framed thereunder. This proposal was also rejected by the then District Judge by his order dated 29-8-1936 and he decided to leave the scheme as it then stood without any alteration. In the result, therefore, during the period between the death of Syed Shah Muhammad Kazim and the election of his successor, the position of Syed Shah Rashid Ahmad as mutwalli remained unchanged. 11. In the result, therefore, during the period between the death of Syed Shah Muhammad Kazim and the election of his successor, the position of Syed Shah Rashid Ahmad as mutwalli remained unchanged. 11. On the election of the sajjadanashin under the broad principles laid down by the High Court and the scheme framed thereunder the two offices of sajjadanashin and mutwalli should have, as a matter of course, merged into one, that is, that of sajjadanashin, unless, in the opinion of the then District Judge, the person elected was not sufficiently competent to manage the property or for any other reason which he thought fit and proper for doing or keeping the offices separate. The relevant portion of Rule 4 of the scheme of the year 1933 relevant to this point read as follows: "The person so elected shall ordinarily hold the office of the Sajjadanashin & also that of mutwalli, the latter office being forthwith resigned by the holder thereof, unless he should be the person elected as successor to the sajjadanashin, provided that if in the opinion of the District Judge the person so elected is not sufficiently competent to manage the property, or if there is any other ground of his so doing, he may order that that person should hold the office of Sajjadanashin only, in which case the Mutwalli, if any, who is at that time holding office, shall continue as such, or if there is no separate Mutwalli, the District Judge shall proceed to appoint one in the manner hereinbefore provided." It, however, appears that this aspect of the scheme escaped the attention of everybody concerned including the then District Judge, with the result that the successor of Syed Shah Muhammad Kazim, the present sajjadanashin, on his election, has so-far been the head of the Khankah only and Syed Shah Rashid Ahmad has been functioning as usual in his office till now. 12. In the year 1948, a new legislation for the better administration of Muslim Waqfs in the province of Bihar named as the Bihar Waqfs Act, 1947 was enacted and, perhaps, it came into force on 3-3-1948. 12. In the year 1948, a new legislation for the better administration of Muslim Waqfs in the province of Bihar named as the Bihar Waqfs Act, 1947 was enacted and, perhaps, it came into force on 3-3-1948. Under Clause (5) of Sec. 4 of that Act, a number of previous legislations and enactments concerning the management of Muslim Waqfs including the provision contained in Section 92, Civil P. C., 1908, whereunder the suit giving rise to -- AIR 1932 Pat 33 (A) had been instituted and whereunder the scheme of the year 1933 had been framed were repealed leaving the entire field for the administration of Waqf under the control of this consolidated statute, namely the Bihar Waqfs Act, 1947 . 13. Sometime in the year 1949 or in the early part of 1950, the Majlis constituted under Sec. 5 of the Waqfs Act thought it advisable to frame a new scheme under the powers given to it under Clause (1) of Sec.31, Waqfs Act for the administration of the Maulanagar estate in place of one prepared in the year 1933 by the then District Judge under the judgment and decree passed by the High Court in -- AIR 1932 Pat 33 (A) and, accordingly, after making such enquiry as it thought fit and after giving notice to the mutwalli of the Maulanagar Waqfs estate and others who appeared to be interested thereunder got a new scheme prepared. That scheme is attached as annexure "A" to the application in Civil Revision No. 333 of 1951. The provisions of that scheme appear to be substantially the same as those stipulated in the previous scheme of 1933 with slight modifications here and there to make it consistent with the provisions of the Bihar Waqfs Act, 1947 . Under the scheme of 1933, Clause (3) read: "For the present the two posts of the Mutwalli and the Sajjadanashin shall be held by two different persons." This was left intact in the new scheme with the nominal change that it was numbered as Clause (9) In the new scheme of the Majlis. Further, this scheme too like the previous one contemplated under its Rule 12 that on a vacancy in the office of the Sajjadanashin the successor shall be elected and that on his election the two offices will as a matter of course merge into one unless it was thought otherwise. Further, this scheme too like the previous one contemplated under its Rule 12 that on a vacancy in the office of the Sajjadanashin the successor shall be elected and that on his election the two offices will as a matter of course merge into one unless it was thought otherwise. Rule 12 as it stood in the scheme of the Majlis reads as follows: "The person so elected shall ordinarily hold the office of the Sajjadanashin and also that of Mutwalli the latter office being forthwith resigned by the holder thereof, unless he should be the person elected, as successor to the Sajjadanashin, provided that if in the opinion of the Majlis the person so elected is not sufficiently competent to manage the property, or if there is any reasonable ground of its so doing, it may order that that person should hold the office of Sajjadanasnin only, in which case the Mutawaili, if any, who is at that time holding office shall continue as such, or if there is no separate Mutwalli the Majlis shall make an ad-interim appointment and then proceed to appoint one in the manner hereinafter provided. When the Sajjadanashinship or the Mutawalliship have been held by the same person and the offices become vacant, the President of the Committee shall assume charge of the Estate pending the election of a successor which should be completed without undue delay." 14. None of these Clauses 9 or 12 of the scheme was as is apparent from the analysis already given above the subject-matter of the objection raised against the scheme on its publication in the Gazette. 15. The District Judge, however, on hearing the objectors and the president of the Majlis made as already stated numerous other changes in that scheme and recast amongst others its Clauses 9 and 12 as well which on modification by him now read as follows: "(9) For the present the post of Manager or Mutwalli should be abolished" and Sajjadanashin shall manage the estate with the help of such amlas that he may appoint with concurrence of the committee. (12) It in the opinion of the Majlis, the Sajjadanashin elected by it is found incompetent to manage the property by the Majlis and by the District Judge, a manager may be appointed by the Majlis with the approval of the District Judge so long the disqualified Sajjadanashin will be in office. (12) It in the opinion of the Majlis, the Sajjadanashin elected by it is found incompetent to manage the property by the Majlis and by the District Judge, a manager may be appointed by the Majlis with the approval of the District Judge so long the disqualified Sajjadanashin will be in office. When the office of the Sajjadanashin falls vacant, the president of the Committee shall assume charge of the estate pending election of a Sajjadanashin which would be completed without undue delay." 16. He, further, modified the scheme that even when a Mutwalli is appointed tinder certain contingency, he shall act under the control and supervision of the Sajjadanashin. 17. I may refer here, if not for anything else but only for analogy that on the occasion when the scheme of 1933 was prepared by the District Judge in a proceeding under Section 92, Civil P. C., notices were given to all the descendants of Shah Ghulam Moula by means of postal registered letters and also by a general notice inviting them all to submit their own point of view, if any, for the scheme to be framed by the then District Judge. This is apparent from the order passed by the District Judge on 1-9-1931 and on subsequent dates. On that notice, a number of proposals were received in his office and his office thereafter having considered all of them prepared its own scheme. This tentative scheme of the office on its preparation was published in the Gazette and notices were again issued to all the beneficiaries and persons interested in the Waqf inviting their objections and criticisms to that tentative scheme as is evidenced by the order passed by the then District Judge on 18-4-1933 and on other dates. Then on the receipt of the objections, a date was fixed for hearing all the parties on the points raised by them. On that date, all objections were heard and final scheme was ordered to be finalised on the line laid down in the order of 13-5-1953. This procedure, in my opinion, was not only consistent with the rule of justice but also in accordance with a procedure known to law for deciding a matter in a judicial proceeding. 18. On that date, all objections were heard and final scheme was ordered to be finalised on the line laid down in the order of 13-5-1953. This procedure, in my opinion, was not only consistent with the rule of justice but also in accordance with a procedure known to law for deciding a matter in a judicial proceeding. 18. Now, Section 92, Civil P. C. stands repealed and the Held occupied by it so far as the Muslim Waqfs are concerned has been for all practical purposes taken by the Waqfs Act. Hence, the question as to whether even now under the new legislation, it is incumbent on the part of the District Judge to give notice to the Mutwalli and to the persons concerned as beneficiaries with the Waqf before effecting a modification in a scheme prepared, by the Majlis for the management of the waqt under Clause (3) of Sec.31. This Question, in any case, will be of practical value only if it is found that the District Judge acting under Sec.31, Waqfs Act is a court and that an order passed by him thereunder is one in a case. I, therefore, take up this last point first. 19. The argument before us on behalf of the opposite party was advanced on behalf of two groups, that is, one on behalf of those who filed objections before the District Judge against the scheme prepared by the Majlis and the other on behalf of Syed Shan Md. Salim, the present Sajjadanashin, both supporting the order passed by the District Judge, though each in its own way. 20. Mr. B.C. De appearing for the Sajjadanashin contended that the order under revision is not an order passed by a Court, for according to him a District Judge acting under Clause (3) of Sec.31, Waqfs Act is only a persona designata and in support of this contention, reliance was placed by him on the case of -- the Municipal Corporation of Rangoon V/s. M. A. Shakur, AIR 1926 Rang 25 (FB) (B). in the Waqfs Act, the District Judge has been defined under Clause (b) of Sec.2 which reads: "District Judge includes a subordinate Judge specially empowered by the provincial Government to discharge the functions of a District Judge under this Act". in the Waqfs Act, the District Judge has been defined under Clause (b) of Sec.2 which reads: "District Judge includes a subordinate Judge specially empowered by the provincial Government to discharge the functions of a District Judge under this Act". This, in fact, is not a definition at all and is not of much assistance in deciding as to whether a District Judge acting under Clause (3) of Sec.31, Waqfs Act is a court or a persona designata. The General Clauses Act in Section 3(17) says: "District Judge shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction." This is substantially what is said in the Bihar and Orissa General Clauses Act. Section 4(16) of that Act reads: "District Judge shall mean the judge of a District Court;" and Sec. 4(15) of that Act says: "District Court shall mean the principal Civil Court of original jurisdiction of district: but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". These two definitions also, in my opinion, by themselves, are not of any avail to decide the point in controversy. They at best take us to the point that the person designated as a District Judge is the one who presides over principal Civil Court of original jurisdiction in a district court. They do not provide any basis for the test as to which act done by him while holding that office is that of the court over which he presides and which act done by him is that of an executive authority or any individual entrusted with the discharge of a duty either under a rule or statute. To decide upon that point, in my opinion, the best course is to scrutinise and analyse the nature and character of the powers under which he acts and also the functions which he has to discharge under the statute or the rule. 21. Persona designata as defined in Corpus Juris is a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. 21. Persona designata as defined in Corpus Juris is a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. This definition, prima facie, is plain but difficulty arises in its application due to the fact that in statutes persona designata is indicated not by name but either by official designation or as one of class giving rise to a scope for the controversy as to whether under a particular statute the person designated acts as a court or a persona designata. This controversy has, in fact, given rise to a number of conflicting decisions, each based on a principle not common to the other. I, however, think that we need not go into those decisions as a Pull Bench of this Court has already by an elaborate judgment in the case of -- Mt, Dirji V/s. Sm. Goalin, AIR 1941 Pat 65 (PB) (C) considered the matter in full. Fazl Ah, J., as he then was has therein observed: "The question which has to be asked in such cases is whether the person so designated has been invested with the powers as a court, or otherwise. If he is invested with the powers of a court, the necessary implication is that the jurisdiction of the court is enlarged and its decision is subject to all the incidents of such jurisdiction. (See -- National Telephone Company Ltd. V/s. Post Master General, 1913 AC 546 (D). If the powers are conferred on him not as a Court, he is a mere persona designata and his decision will not be subject to the Incidents of such jurisdiction as the Court ordinarily exercises. It seems to me, therefore, that there is no real antithesis between the expression "persona designata" and "Court", or in other words, even a persona designata may be a Court. Whether he is a court or not depends upon his powers and the functions which he has to discharge. It is not inconceivable that in some cases when an officer of the Court, say the District Judge is called upon to decide a certain matter not as a District Judge, but as a persona designata, he may still be a Court by reason of some special provision in the Statute which authorises him to decide the matter. It is not inconceivable that in some cases when an officer of the Court, say the District Judge is called upon to decide a certain matter not as a District Judge, but as a persona designata, he may still be a Court by reason of some special provision in the Statute which authorises him to decide the matter. The Statute may expressly say that he will be deemed to be a court or that his decision will be subject to appeal or revision by a superior Court". 22. In deciding that case, the learned Judges of the Pull Bench first settled the principle as to what constitutes a Court, and, therefore, tried to find out as to whether the provisions of Workmens Compensation Act whereunder the order under controversy in that case was passed fulfilled the requisites of a court or not. In their opinion, the provisions of that Act did indicate that the person designated to act under the Act was a Court. 23. In the Waqfs Act, the District Judge has been given power to act on various matters connected with the administration of a Waqf. Chapter 9 of the Act deals with the subject-matter headed as Judicial proceedings. In that chapter, Section 46 deals with the rights given to the Majlis or any person entrusted with the Waqf for making an application to the District Judge for an order (a) directing the Mutwalli to discharge such obligation within a time to be specified in the order; or (b) appointing a receiver of the funds and property of the waqf if the Mutwalli fails to carry out such direction within the time so specified. These matters, in my opinion, can be decided upon by a District Judge only in a judicial manner after hearing the parties and in accordance with the general procedure known to law. Section 47 of that Chapter gives power to the District Judge to remove mutwalli and to appoint any one in his place under certain conditions. This again, in my opinion, implies the decision of certain rights concerning parties before him and that must be done in a judicial manner in accordance with the general procedure of law. It is true that some of the orders passed by the District Judge under the Act are made final while others are open to appeal to the High Court. It is true that some of the orders passed by the District Judge under the Act are made final while others are open to appeal to the High Court. That, however, cannot be ground for holding that orders which are not open to appeal are those which are passed by him not as a court but as a persona designata. The fact that some orders at least passed by him under the Waqfs Act are appealable to this Court clearly indicate, on the other hand, that District Judge under the Waqfs Act acts as a Court. The finality of the order as contemplated by the Waqfs Act means only this much that those orders are firstly not open to appeal and secondly that they are not open to challenge in any other court unless they are without jurisdiction, vide the case of -- Bhagwan Singh V/s. Ram Sundar, AIR 1942 Pat 388 (E). On my reading the Waqfs Act, 1947, as a whole, I think the function and powers of the District Judge given under the Waqfs Act are for the reasons given above that of a court. In the case of --AIR 1926 Rang 25 (PB) (B), the Pull Bench held: "The effect of the Bombay decisions, with which we are in respectful agreement, is that when, by an Act of the Legislature, a new authority 3s constituted for the purpose of determining questions concerning rights which are themselves the creations of the Act, and a Judge or Presiding Officer of a Court, as distinct from the Court itself, is directed to perform the functions of the newly created authority, then it must be presumed, unless the contrary is expressly enacted or necessarily implied, that the intention of the Legislature, was that the Judge or Presiding Officer should perform those functions as a persona designata and not as a Court". Even accepting this principle laid down in -- AIR 1926 Rang 25 (FB) (B), I think that the necessary implication that arises out of the different provisions of law laid down in the Waqfs Act is that the District Judge under that Act acts as a Court & not a persona designata & the presumption, if any, to the contrary is rebutted by the provisions of that Act. Further, with the greatest respect to the learned Judges who decided the case reported in -- AIR 1926 Rang 25 (FB) (B). I think it would suffice to say at present that the rule of law laid down by them regarding any presumption arising in such a case has not been accepted by this Court in its Full Bench decision. In my opinion, therefore, that authority is not of any avail to Mr. B. C. De. It may be stated here that the Advocate General appearing for the other group did not press this point. 24. Having decided that the District Judge acting under the Waqfs Act is a court, the matter becomes comparatively very simple. It has not been contended that the District Judge even if he acts under the Act as a court is not a court of a character as contemplated by Sec.115 and one subordinate to the High court. The very fact that some of the orders passed by the District Judge under the Act are open to appeal to the High Court is a clear indication of the fact that he under the Act is a court subordinate to the High Court. There is also, in my opinion, no scope for the contention that the order in dispute is not one in the case which has been decided, nor it has been contended like that. In the case of -- Ghattarpal Singh V/s. Raja Ram, 7 All 661 (FB) (F), Mahmood J. observed; "The word "case" as used in Sec. 622 of the Code, is nowhere defined; but adopting the general rule of construing statutes, I hold that the word should be understood, in its most broadest and most ordinary sense, unless there were specific reasons for narrowing its meaning". In the case of -- Balakrishna Udayar V/s. Vasudeva Ayyar, AIR 1917 PC 71 at p. 74 (G), their Lordships observed: "It cannot, in their Lordships view, be confined to a litigation in which there is a plaintiff who seeks to obtain particular relief in damages or otherwise against a defendant who is before the Court. It must, they think, include an ex parte application such as that made in this case, praying that persons in the position of trustees or officials should perform their trust or discharge their official duties". It must, they think, include an ex parte application such as that made in this case, praying that persons in the position of trustees or officials should perform their trust or discharge their official duties". In view of the principles laid down in the aforesaid cases, I think there is no doubt that the order in revision before us is one passed in a case decided as contemplated by Sec.115, Civil P. C. 25. I, therefore, hold that the order passed by the District Judge under Section 31(3), Waqfs Act modifying the scheme submitted to him by the Majlis in the manner stated above is open to revision to this Court subject to the condition that they are proved to have been passed without jurisdiction. 26. This brings us to the other question as to whether the order under revision is bad on any such ground. On this point, Sir Sultan Ahmad appearing for the petitioners strongly relied on the contention that the order having been passed at the back of the Mutwalli and the other beneficiaries under the Waqf without any notice to them is one completely without jurisdiction. The fact that no notice was issued to any of the parties interested in the Waqf, much leas to the Mutwalli, is as already stated admitted. The other side in this connection has however, laid reliance on the fact that under Sec.31(3) of the Act, no procedure is laid down for the disposal of the objections submitted to the District Judge in relation to a scheme framed by the Majlis, and, therefore, under law no notice was necessary either to the Mutwalli or to the beneficiaries under the Waqf. In my opinion, there is not much force in this contention. The silence of the Statute on the point of notice by itself cannot lead to the conclusion that the rights of the beneficiaries, Mutwalli and Sajjadanashin who are bound to be substantially affected by any scheme framed and decided for the management of the Waqf can be disposed of in law at their back without giving any notice to all of them. It is true that Clause (3) of Sec.31 is silent but the other clause, namely, Sub-clause (a) of Clause (1) of that section clearly indicates that the Majlis when settling or modifying a scheme has to give notice to the Mutwalli and to such other persons as may appear to the Majlis to be interested therein. The last phrase of that clause, in my opinion, without any douot, includes beneficiaries of the Waqf also though about Mutwalli it is very specific. If the law contemplated, as it does, that notice should be given to the Mutwalli and the parties interested in the Waqf at the time when the Majlis prepares or modines scheme, it is consistent and logical to think that even at the stage when the scheme prepared or modified by the Majlis is laid open to revision before the District Judge because of the objections raised against it, those parties should again be given notice about the proceeding before the District Judge asking them to nave a say if they so like on the objection raised. It has been argued that the Majlis was present at the time of the hearing of the objections. That fact again does not solve the difficulty for under Clause (3) of Sec.31 of the Act, according to its interpretation by the opposite party no notice was necessary in law even to the Majlis or the objectors. Secondly, even if the Majlis was present, it cannot be said in law to be present there either on behalf of the Mutwalli or the beneficiaries under the waqt In my opinion in the circumstances of the case, the absence of notice apart from its bearing on the question of jurisdiction very seriously prejudiced the Mutwalli and has resulted in the negation of the intention of the legislature in framing the Waqfs Act for the reasons that the scheme prepared by the Majlis was not modified by the District Judge only within the four corners of the objection raised against it but also on many other crucial points involving substantial rights of others, though those points after their final settlement before the Majlis had not been objected to by any person within the period of limitation provided in Clause (3) of Sec.31 and in the manner provided therein. I think for the latter, reason it was all the more incumbent on the part of the District Judge to acquaint the parties concerned, both about the objection raised and also about the modifications which he was on his own initiative contemplating to make in the scheme and thereafter to dispose them of after hearing those who wanted to have any say. That would have given an opportunity to all the parties to have expressed their point of view on those points. He, in the present case modified the scheme both on the points raised in the objection and also on others which he thought necessary on his own Initiative and that without any notice either to Mutwalli or to the beneficiaries. The order passed in such a fashion behind the back of the beneficiaries under the waqf and the Mutwalli is in my opinion, undoubtedly one without jurisdiction and therefore, fit to be set aside. This view of mine gets support from the principle laid down in the case of -- Gora Chand V/s. Rakhal Chandra, AIR, 1923 Gal 364 (H) wherein Sir Ashu-tosh Mookerjee, Knight, Judge relying on an English decision in the case of -- -Cooper V/s. Wandsworth Board of Works, (1863) 14 C. B. N. S. 180 (I) observed : "Although the section does not state explicitly that no order for commutation is to be made till opportunity has been afforded to the party liable to be affected thereby to appear and contest the application, it is obvious on first principles that no order should be made till notice of the application has been served." 27. Having held that the order passed by the District Judge is without jurisdiction, I propose to remand the case back to the District Judge to dispose of the objection raised, by the three beneficiaries against the scheme prepared by the Majlis after giving notice to the Mutwalli and the beneficiaries under the waqf. Before, however, I leave the case I would like to point out that the order passed by the District Judge is in my opinion, not bad only for the reason stated above but also for other important reasons, three of which I would specifically mention here lest they may not creep in again in the order hereafter to be passed on remand, giving rise to another application to this court. 28. 28. The matter for jurisdiction (sic) before the District Judge was the objections raised against the scheme prepared by the Majlis. In considering them there was no occasion for him either for giving a certificate of competency to the Sajjadanashin at present in office or to condemn the Mutwalii and thereby to prepare a ground for his removal. Under the scheme of 1953 and also one prepared by the Majlis, the question of the competency of Sajjadanasnin for the administration of the Waqf property has to be considered only at the time when he comes into office after his election. It is true that under the scheme finally settled by the District Judge, the question of his competency can be raised at any time while he is in office but even under that, that question has to be considered not by the District Judge all alone but jointly by the District Judge and the Majlis and that only after the scheme has received a final shape on the disposal of the objections raised against it and not in the course of the disposal of objections submitted against the scheme. I, therefore, think that the District Judge was completely wrong in raising the issue of competency of the Sajjadanasnin in the proceeding before him. Much worse than that was the way in which he has made observation on the ground of some allegations said to have been made against the present mutwalli. That observation taken along with the modification made in the scheme to the effect that the post of Mutwalli should be abolished here and now gives an impression on reading the order that he was, in fact, under the cloak of deciding the objections against the scheme exercising the power given to him under Sec. 47 of the Act for the removal of the Mutwalli and that without giving any notice to him. The learned Advocate General has strongly contended that the overthrow of the Mutwalli from his office under the modification made by the District Judge is a mere consequence of the change in the scheme and not the result of his removal or dismissal on the grounds given under Sec. 47 of the Act. The learned Advocate General has strongly contended that the overthrow of the Mutwalli from his office under the modification made by the District Judge is a mere consequence of the change in the scheme and not the result of his removal or dismissal on the grounds given under Sec. 47 of the Act. Had it been, in fact a mere consequence of a change in the scheme that would not have mattered by itself, but here the way in which it has been brought about smacks of an unwarranted anxiety on the part of the District Judge to exercise a power which was not available to him in that proceeding. Therefore, that order is bad. 29. Then there is another serious objection against the order. I think that the modifications made by the District Judge in the scheme beyond the terms of objections raised in the application filed by the three beneficiaries are not at all consistent with the provisions of law laid down under Sec.31, Waqfs Act. Under Clause (1) of that section, the scheme is initially settled or modified by the Majlis. Clause (2) of that section says that the scheme as settled or modified by the Majlis, unless otherwise ordered by the District Judge on an application, if any, made under Sub-clause (3) comes into force automatically without any approval by the District Judge, on a day to be appointed by the Majlis in this behalf and shall be published in the official gazette. That means that if no objection is raised against the scheme of the Majlis the District Judge has no power to interfere with it. The power of interference, if any, arises in the District Judge only when an objection is filed against the scheme in accordance with the provisions of Clause (3) of Sec.31. This, in my opinion, places a limitation on the power of the District Judge in varying, modifying or setting aside the scheme and under that limitation he can do either of the aforesaid acts only to the extent to which the scheme is objected to by the objectors in their application and not beyond the term of those objections. This, in my opinion, places a limitation on the power of the District Judge in varying, modifying or setting aside the scheme and under that limitation he can do either of the aforesaid acts only to the extent to which the scheme is objected to by the objectors in their application and not beyond the term of those objections. If the statute, in fact, intended to give wide powers to the District Judge to vary, modify or set aside the scheme on his own initiative independent of the fact as to whether any objection is raised against it or not, then it could not have provided a provision like one in Clause (2) and should have made the scheme final in all cases--whether objection or no objection -- on its approval by the District Judge. Under the Act, it has not been done so. What the statute contemplates is that the framing of a new scheme or modification of one already existing for the administration of a Waqf should initially originate from the Majlis and that one settled by it in the presence of the Mutwalli and all others interested in the Waqf in accordance with the terms of the proviso to Clause (1) of Sec.31, comes into force on a Say appointed by the Majlis in this behalf without any approval being given to it by the District Judge though leaving the party aggrieved on any particular point incorporated in the scheme framed by the Majlis to place his grievance by an application to the District Judge for varying, modifying or setting aside the scheme in the light of the objection raised and that I think only to that extent. Clause (3) of Sec.31 reads- "The Mutwalli of, or any other person interested in, such Waqf may, within three months from the date of the publication in the official Gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be, make an application to the District Judge for varying, modifying or setting aside the scheme; but, subject to the result of such application the order of the Majlis under Sub-sections (1) and (2) shall be final and binding upon the Mutwalli of the Waqf and upon every other person interested in such Waqf." This clause read with Clause (2) fully supports the view I have taken on this point. The statute has to be read as a consistent whole. In case, if we read Clause (3) in the sense that once any objection on any single point in the scheme is taken under Clause (3), the entire scheme will on that ground be thrown open to challenge though by that time the period of limitation for raising objection on other points has already expired and that the District Judge will, thereafter get full power not only to dispose of the specific objection raised against the scheme but also to recast it in any manner he likes and that without giving a notice to the Mutwalli and the persons interested in the Waqf, it will, in my opinion, negative completely the scheme of things contemplated under Clause (1) (a) of Sec.31 and also the very purpose behind the constitution of a statutory body like the Majlis for the administration of Waqf. Such a state of affairs could never have been and has not been in my opinion, intended by the legislature. I, accordingly, hold that the modification, if any, on the ground of an objection raised against the scheme should always be confined to the points raised therein and should not be utilised as an opportunity for usurping the function of framing a new scheme which under the Act, has to be initially done by the Majlis and Majlis alone. That being so, the District Judge in this case contravened the provision of law in modifying the scheme beyond the terms of the objections stated in the application by the three beneficiaries and that as such it is open to revision. Their Lordships of the Privy Council in the case of the -- Secretary of state V/s. Mask & Co., AIR 1940 PC 105 (J) laid down: "It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the "Act have not been complied with, or the statutory tribunal has not acted in conformity with fundamental principles of judicial procedure". 30. Lastly it appears to me that the modification made by the District Judge relating to the position of the Mutwalli, if and when appointed under certain contingency, is in direct conflict to the principle laid down by the High Court in its judgment given in AIR 1932 Pat 33 (A). 30. Lastly it appears to me that the modification made by the District Judge relating to the position of the Mutwalli, if and when appointed under certain contingency, is in direct conflict to the principle laid down by the High Court in its judgment given in AIR 1932 Pat 33 (A). The judgment contemplates that in the case of a bifurcation of the office of Sajjadanashin and Mutwalli, the Mutwalli shall be in charge of the management of the property and Sajjadanashin the head of the Khankah and not that in spite of the bifurcation of the office, the Sajjadanashin shall continue to be the head both of the Khankah and the management of the property though he may get assistance in the management of the property from the Mutwalli. In that view of the matter, the modification brought about by the District Judge in Rules 14 and 17 of the scheme framed by the Majlis does not seem to be consistent with the terms of the High Court decree. The District Judge has under the modification made by him under Rules 14 and 17 made the Mutwalli, if and when appointed, work under the supervision of the Sajjadanashin. If in fact Sajjadanashin is incompetent to manage the property of the Waqf and if the Mutwalli is to be appointed for managing the properties due to his incompetency it is most illogical if not anything else to think, that even then the Mutwalli should act under the Sajjadanashin. That is not only opposed to the final decree passed by the High Court but also repugnant to the very purpose of separation of office. 31. In view of all what I have stated, I have got no hesitation in holding that the order passed by the District Judge is completely a misconceived one and without jurisdiction. It is, accordingly, seb aside. The application is allowed and the case is remanded back to the District Judge for its disposal in the light of the observations made above. In the circumstances of the case, no order for costs is passed. Imam, J. 32 In my opinion the District Judge acting under Clause (3) of Sec.31, Bihar Waqfs Act, 1947 , exercises his powers as a court and not as a persona designata as contended by Mr. De. In the circumstances of the case, no order for costs is passed. Imam, J. 32 In my opinion the District Judge acting under Clause (3) of Sec.31, Bihar Waqfs Act, 1947 , exercises his powers as a court and not as a persona designata as contended by Mr. De. If the whole scheme of the Act is taken into consideration, then there can be no doubt that under the Act, certain orders passed by the District Judge are appealable to the High Court. Such orders cannot be regarded as passed by a persona designata from whose order an appeal lay to the High Court. The District Judge must obviously be considered as a court when he passes such orders from which an appeal lies to the High Court. There are undoubtedly provisions in the Act which provide that certain orders of the District Judge are final that is to say, there is no provision for an appeal to the High Court against such orders. The Act, however, does not suggest that the District Judge in passing orders which are not appealable has a different status than when his orders are appealable. The definition of District Judge in the General Clauses Act, whether it be that of the Central Legislation or of the State Legislation, certainly suggests that the District Judge is the presiding officer of the principal court of original civil jurisdiction. The use of the words "District Judge" in the Bihar Waqf Act should be read consistently with the definition of District Judge in both the General Clauses Act. 33. That the proceedings under Sec.31, Bihar Waqfs Act is a case before a court appears to me to be clear because Sec.31 provides that the Mutwalli or any other person interested in a Waqf may make an application to the District Judge for varying, modifying or setting aside the scheme. The moment it is permissible to make an application to the District Judge for such a purpose, obviously the proceedings before the District Judge must be considered to be a case before him. The moment it is permissible to make an application to the District Judge for such a purpose, obviously the proceedings before the District Judge must be considered to be a case before him. Since that be the position, an order passed by the District Judge under Sec.31, Clause (3) of the Bihar Waqfs Act must be regarded as an order of the court from which although no appeal lies an application in revision to the High Court can be filed, and on such an application the High Court can exercise its power of revision provided the requirements of Sec.115, Civil P. C. are complied with. 34. I am satisfied that the District Judge in the present case exercised his jurisdiction with material irregularity in that he altered and varied the scheme prepared by the Majlis without giving notice to the Mutwalli, particularly when the alteration and variation made by him adversely affected the Mutwalli. It would be against all natural justice for a court to pass an order in such, a fashion that it adversely affects a person without giving him notice and an opportunity of being heard. For this reason, alone, if nothing else, this court could interfere with the order of the District Judge under Sec.115, Civil P. C. I am satisfied that for the ends of justice the order of the District Judge calls for interference and it must be set aside. 35. For the present I reserve my opinion as to the extent of the power of the District Judge in hearing an application under Sec.31, Clause (3) of the Bihar Waqf Act. It is sufficient in the present case to set aside his order on the ground that it was made without notice to the Mutwalli. 36. I agree with my learned brother that these applications must be allowed and the order of the District Judge must be set aside and the case be remanded to him for disposal according to law. I also agree that in the circumstances of the case there should be no order for costs in this Court.