civil appellate jurisdiction civil appeal number 531 of 1959.
appeal by special leave from the award dated october 21
1957 of the central government industrial tribunal dhanbad
in reference number 6 of 1957.

dutta mazumdar g. n. bhattacharjee and b. p.
maheshwari for the appellants. c. setalvad attorney-general of india and r.
gopalakrishnan for the respondent. 1960. december 7. the judgment of the companyrt was delivered
by
gajfndragadkar j.-the short question of law which falls to
be decided in the present appeal is whether a dispute raised
by the employees of a general insurance companypany against
their employer for payment of bonus in any particular year
can be referred for adjudication by an industrial tribunal
under s. 10 1  of the industrial disputes act 1947  xiv of
1947 . this question arises in this way. the workmen of
the hercules insurance company limited are the appellants and the
insurance companypany is the respondent before us. on april 11
1957 the central government referred the appellants claim
for bonus for the years 1954 and 1955 for adjudication to
the industrial tribunal dhanbad companystituted under s. 7a of
the industrial disputes act and this reference has been
made under s. 10 1  d  of the act. before the tribunal the
respondent urged a preliminary objection against the
validity of the reference itself. its case was that the
payment of bonus by an insurance companypany is companyditioned
entirely by the relevant provisions of the insurance act
1938  iv of 1938  and that the said provisions did number
justify the reference of a dispute in that behalf for
adjudication by any industrial tribunal. this preliminary
objection was based on the provisions of s. 31a 1  and
proviso  vii  of the
insurance act. it was also urged by the respondent that
having regard to the limitations imposed on the general
insurance companypanies by s. 40c of the insurance act the claim
for bonus made by the appellants companyld number be sustained. the tribunal has upheld the preliminary objection thus
raised by the respondent and held that the reference is
invalid. incidentally it has also companysidered the plea
raised under s. 40c and has observed that the said plea is
also well founded in the result the tribunal refused to
entertain the reference and dismissed it accordingly. it is
against this order of the tribunal that the appellants have
come to this companyrt by special leave. it is companymon ground that the respondent has paid the
appellants bonus equivalent to two months basic wages for
each of the two years 1954 and 1955. the appellants claim
two months basic wages as additional bonus for each of the
two years under reference. it is their case that if the
trading profits made by the respondent are ascertained from
the respondents balance sheet and the full bench formula is
applied it would appear that the respondent has in its
hands a substantial amount of available surplus from which
the additional bonus claimed by them can be awarded. since
the reference has been rejected on the preliminary ground
the tribunal has naturally number companysidered this aspect of the
problem. the preliminary objection raised by the respondent is
founded on the relevant provisions of s. 31a of the
insurance act  hereafter called the act  and so we must number
turn to the said provisions. section 31a 1  c  of the act
provides inter alia that numberwithstanding anything to the
contrary companytained in the indian companypanies act 1913 or in
the articles of association of the insurer if a companypany or
in any companytract or agreement numberinsurer shall after the
expiry of one year from the companymencement of the insurance
 amendment  act 1950 be directed or managed by or employ
as manager or officer or in any capacity any person whose
remuneration or any part thereof takes the form of
commission or bonus in respect of the
general insurance business of the insurer. thus looking s.
at 31a 1  c  by itself without the proviso the position is
absolutely at clear. the respondent cannumber be directed to
employ the appellants in any capacity so as to include in
their remuneration a liability to pay bonus in respect of
the general insurance business of the respondent. bonus
under the industrial disputes act is number a part of wages
but the right to claim bonus which has been universally
recognised by industrial adjudication in cases of employment
falling under the said act has number attained the status of a
legal right. bonus can be claimed as a matter of right
provided of companyrse by the application of the full bench
formula it is shown that for the relevant year the employer
has sufficient available surplus in hand. therefore a claim
for bonus made by the appellants in the present proceedings
is a claim in respect of the general insurance business of
the respondent and if allowed it would add to the
remuneration payable to them. in other words bonus claimed
by the appellants if awarded would for the purpose of s.
31a  1  c  be a part of their remuneration and that is
precisely what is prohibited by the said provision. there are however certain exceptions to this general
prohibition and it is to one of these exceptions that we
must number turn. proviso  vii  to s. 31a  1  c  lays down
that numberhing in this subsection shall be deemed to prohibit-
the payment of bonus in any year on a uniform basis to all
salaried employees or any class of them by way of additional
remuneration such bonus in the case of any employee number
exceeding in amount the equivalent of his salary for a
period which in the opinion of the central government is
reasonable having regard to the circumstances of the case. this provision which companystitutes an exception to the rule
prescribed by s. 31a 1  c  allows the payment of bonus to
the employees of insurance companypanies subject to the
condition specified by it. bonus intended to be paid to
such employees must number exceed in amount the equivalent of
their salary for a period which the central government
regards as reasonable. the result of this provision appears to be that the central
government has to companysider the circumstances of each insurer
and then decide whether any bonus should be paid by the
insurer to its employees. if the financial position of the
insurer is sufficiently satisfactory the central government
may decide to allow the insurer to pay bonus to its
employees and in that companytext the central government would
prescribe the maximum within which the payment should be
made. in numbercase can payment exceed the maximum prescribed
by the central government and in all cases the matter has
to be companysidered by the central government and numberother
authority. having regard to the scheme of the act which
purports to supervise and regulate the working of insurance
companies the legislature thought that the payment of bonus
by the insurance companypanies to their employees should
numbermally be prohibited and its payment should be permitted
subject to the over-riding companytrol of the central government
to prescribe the maximum in that behalf. if the central
government decides that numberbonus should be paid numberbonus
can be paid by the insurer. if the central government
decides that bonus should be paid but number beyond specified
limit the insurer cannumber exceed that limit. that in our
opinion is the effect of proviso  vii  to s. 31a 1 . it is however urged that proviso  vii  merely enables the
central government to prescribe the maximum. it does number
take away the central governments authority to refer an
industrial dispute in respect of bonus for adjudication
under s. 10 of the industrial disputes act. in this
connection it is urged by mr. mazumdar that in some cases
the central government may take the view that the financial
position of the insurer justified the payment of bonus but
the quantum may be better left to the industrial tribunal. in such a case the central government should have authority
to make the reference. similarly it is urged that the
central government may decide that within the maximum
prescribed by it bonus should be paid by an insurer but
the insurer
1000
may number companyply with the central governments decision and in
that case the only way to make the central governments
decision effective is to refer the matter to adjudication
and enable the employees to obtain an award which can be
executed. that is why the appellants companytend that the
enabling provision companytained in proviso  vii  should number be
construed to companystitute a bar against the central
governments power to act under s. 10 1  of the industrial
disputes act. we are number impressed by this argument. in our opinion the
policy of the relevant clause of the proviso is absolutely
clear. payment of bonus by insurers was intended by the
legislature to be companyditioned by the provisions companytained in
the said clause and we feel numberdoubt or difficulty in
reaching the companyclusion that the intervention of the
industrial tribunals was intended to be excluded and the
matter was intended to be kept within the discretion of the
central government so far as the payment of bonus by the
insurers is companycerned. then as to the argument that the
government directive issued under proviso  vii  may number be
obeyed by any insurer we do number think that such an event is
likely to happen but theoretically it is companyceivable that
an insurer may refuse to companyply with the decision of the
government. in that case all we can say is that there is a
lacuna left and the legislature may companysider whether it is
necessary to provide adequate remedy for making the
government decision binding and final. having regard to the
unqualified and absolute prohibition companytained in s.
31a 1  c  it seems to us difficult to hold that the payment
of bonus to the employees of insurance companypanies is number
absolutely companyditioned by proviso  vii . in the absence of
the said provision numberbonus companyld have been claimed by
insurance employees and so the effect of the said provision
must be to limit the said right to the companyditions prescribed
by it. that is why we think that the tribunal was right in
coming to the companyclusion that the reference made by the
central government is invalid. the fact that the central
government took the view that it companyld make such a reference
1001
is hardly relevant in determining the scope and effect of
the relevant provisions of the act. this question must be
considered on what we regard to be the fair companystruction of
the relevant statutory provision and as we have just
indicated the companystruction of the relevant provision clearly
supports the view taken by the tribunal. incidentally it
may be pointed out that in its award the tribunal has
referred to several other decisions of industrial tribunals
which have taken the same view though there are one or two
decisions which have upheld the validity of the reference
without duly companysidering the effect of s. 31a 1 . in this companynection we may refer to the decision of this
court in the central bank of india v. their workmen  1
where a similar question has been companysidered. in that case
the companyrt had to companysider the effect of s. 10 of the banking
companies act 1949 prior to its amendment in 1956. the
said section according to that decision prohibited the
grant of industrial bonus to bank employees inasmuch as such
bonus is remuneration which takes the form of a share in the
profits of a banking companypany. in dealing with the character
of bonus in relation to remuneration specified by s. 10 s.

das j. who spoke for the companyrt observed that bonus in
the industrial sense as understood in our companyntry does companye
out of the available surplus gap wholly or in the actual
wage. id it fills the wage and age in that sense whether
it be called companytingent or supplementary. numbere the less it
is labours share in the profits and as it is a
remuneration which takes the form of a share in profits it
comes within the mischief of s. 10 of the banking companypanies
act. section 10 of the banking companypanies act is companyparable
to s. 31a of the insurance act and so this decision
supports the view that we have taken about the effect of s.
31a 1  c . we have already held that the payment of bonus
would be an additional remuneration to the employees of
insurance companypanies and it would be
 1  1960 1 s.c.r. 200.


civil appellate jurisdiction civil appeal number 1723 of
1967.
appeal under section 116-a of the representation of the
people act 1951 of the judgment and order dated october 14
1967 of the orissa high companyrt in election petition number 1
of1967. goburdhun for the appellant. b. agarwala uma mehta s. k. bagga and s. bagga for
the respondent. the judgment of the companyrt was delivered by
shah j. at the last general elections the respondent was
declared elected to the legislative assembly of orissa from
the numberrangpur general companystituency. the appellant filed an
election petition before the high companyrt of orissa for an
order setting aside the election of the respondent on the
ground that the appellants numberination paper was improperly
rejected and he was illegally deprived of his right to
contest the election. the high companyrt rejected the petition. the appellant has appealed to this companyrt under s. 116-a of
the representation of the people act 1951.
it is companymon ground that the appellant was carrying on the
business of a building companytractor and that in pursuance of a
numberification issued by the government of orissa he had
submitted tenders for companystruction of buildings of the
rental housing scheme at the rates specified therein. those
tenders were accepted and the appellant had carried out a
part of the companystruction work but had thereafter stopped
the work because he suffered serious injuries which
necessitated his detention in a public hospital. the
appellant claimed that at his request the companytract was
cancelled and on that account at the date of the filing of
his numberination there was between him and the state of
orissa numbersubsisting companytract for execution of works
undertaken by him and that in any event there was in law no
contract between him and the state relating to the execution
of works which disqualified him from standing at the
election as a candidate for a seat in the state legislative
assembly. in january 1965 tenders were invited by the government of
orissa for companystruction of buildings under the rental
housing scheme. the tenders submitted by the appellant were
accepted and on march 30 1965 the appellant and the
executive engineer signed an agreement in form k-2. the
principal recitals in the agreements were
i do hereby tender to execute the
undermentioned description of work by piece
work and in accordance with the companyditions
numbered before in companysideration of payment being
made for the quantity of work executed at rate
specified in the following schedule. a schedule of items was appended thereto which
was followed by the recital
conditions as per f-2 companytract which will be
finalised. the executive engineer then made an endorsement on the
tenders. accepted by me for item 5 only and submitted
them to the superintending engineer for approval of excess
items. apparently sanction was given by the superintending
engineer but numberformal companytracts in form f-2 were executed. advance payments were however made to the appellant after
execution of the agreements in form k-2 and the appellant
proceeded with the work of companystruction. on october 13
1965 the appellant suffered serious injuries which
necessitated his admission to a public hospital and the
construction work was stopped. on january 6 1966 the sub-
divisional officer p.w.d. numberrangpur addressed a letter to
the appellant calling upon him to resume work on or about
the january 12 1960 failing which he was informed his
contract will be terminated and measurements will be
recorded. on february 10 1966 the appellant addressed a
letter to the executive engineer p.w.d. stating that it was
number possible for him to resume the work and to companyplete it
and he requested that the companytract be cancelled without
imposition of penalty. on the letter of the appellant there
are two endorsements at the foot of the letter which have
been marked ext. 2  a  and ext. 2  b  exhibit 2  a  reads
submitted to the executive engineer koraput
division. the reason for terminating the
contract as mentioned by shri a. r. khan
contractor is companyrect. his companytract may be
terminated without imposing penalty and
permission given to fake up work through job
work soon. exhibit 2 b  dated march 18 1966 bears the
initials of the executive engineer and states

i knumber of the unfortunate accident. as the
applicant is still in the vizag hospital his
work may be finally measured and closed
without penalty. the balance of the work may
be companypleted through job work. the sub-divisional officer numberran nagpur wrote a letter on
march 16 1955 requesting one harihar bisoi pursuant to his
application dated march 5 1966 to take up the rental
housing schedule building work at numberrangpur immediately
it current schedule of rates after taking detailed
instructions from the sectional officer numberrangpur. it
appears that harihar bisoi did some companystruction work but
numberpayment was made to him and he also stopped the work. the appellant strongly relies upon the endorsements made on
the letter dated february 10. 1966 the letter ext. 3 and
the evidence of ram mohan patnaik-the executive engineer. ram mohan patnaik stated that he by his endorsement ext. 2 b  on
the application dated february 10 1966 had clearly
directed that the work of the companytractor  appellant  would
be finally measured and his companytract would be treated as
closed and numberpenalty would be charged from him that the
question of accounting had numberhing to do with the closing of
the companytract and that on march 18 1966 he had passed an
order ext. 2 b  that the companytract was closed. according to
the witness closure of the companytract was number companytingent upon
the measurement of the work done by the appellant and that
by his order dated march 18 1966 ext. 2 b  the appellant
was excused from liability to companyplete the work as the
contract was rescinded and by implication ext. 2 b  meant
that the sub-divisional officer would give intimation to the
contractor about the cancellation of his companytract. the
witness companyld number say whether the sub-divisional officer did
give intimation to the companytractor. he asserted that it was
number his intention that job work should be entrusted to job
workers only after the final bill of the appellant was
submitted his clear intention was that after measurement
was taken the work may be entrusted to job workers. according to the witness by ext. 2 b  he accepted the
incomplete work of the appellant as a companyplete satisfaction
of his companytract. this evidence prima facie supports the case of the appellant
that it was the intention of the executive engineer to
terminate the companytract. but there is a mass of evidence on
the record which shows that numbersteps were taken to intimate
to the appellant about the determination of the companytracts
and both the parties treated the companytract as subsisting. to
that evidence we may advert. on april 15 1966 the
appellant wrote a letter in reply to a letter dated april
13 1966 from the sub-divisional officer that he had
completed upto slab level the companystruction of rental housing
scheme and that thereafter he was lying injured in a
hospital and that as he had numberauthorised agents to look
after further work early action may be taken to make final
measurement upto slab level and for payment of the amount
due to him. on december 20 1966 the appellant wrote a
letter to the superintending engineer stating that he had
recovered and was in a position to leave the hospital and to
attend to his numbermal avocation and that he had learnt that
the department wanted to cancel his companytract and call for
new tenders and had taken some action towards that end. he
requested the superintending engineer to desist from such a
course and to favorably companysider his request for extension
of time to companyplete the work. he stated that he had
advanced large sums of money to the laborers and for the
supply of materials and there were large quantities of
building materials belonging to him which had been lying at
the site of the work and if his companytracts were to be
cancelled he would sustain irreparable loss that he had
always been a very efficient
and good companytractor and was executing the works in time and
diligently and well and that he companyld number companyplete the work
due to the unfortunate accident. he then stated
i therefore request you to kindly grant me
time upto end of march 1967 and i shall resume
the work by about 15th january 1967 and will
finish it by 31st march 1967.
the cancellation of my companytract at this stage
when nearly 75 of the work was already done
by me and the roofing alone remains to be
completed and the stoppage of the work was due
to circumstances over which i had numbercontrol
due to more or less vis major will be most
inequitable if number unjust. 1 therefore
earnestly appeal to you to sympathetically
consider this representation of mine and grant
me time till end of march 1967 and order
withdrawal or cancellation of the fresh
tenders that might have been called fo
r by the
executive engineer koraput. at the foot of the letter there is a numberation that tenders
had been called for the balance of the work as per
instructions of the executive engineer koraput and that
the companytract may be rescinded as instructed by the executive
engineer koraput. there is anumberher numberation it is an
old case wherein executive engineer has already ordered to
close the companytract and do by job  illegible  order its
without penalty  illegible . there is one more numberation
dated january 4 1967--submitted for favour of orders. what penalty is to be imposed in rescinding the companytract. exhibit 13 is a letter dated january 22 1967 from the
assistant engineer p.w.d. numberrangpur to the returning
officer which sets out the circumstances in which the work
entrusted top the appellant was stopped. the letter states
that the balance work which was suggested to take up on
job-work basis would number affect the accounts of sri a. r.
khan for his work portion. the final bills for his above
two works of the aforesaid companytractor have been submitted to
division office vide this office letter number. 120 and 121
dated 18-1-67 and i have been intimated vide divisional
letter number 902 dated 20-1-67 that the said companytractor has to
return 435 bags of cement and 7.954 quintals of rods to the
undersigned to finalise his accounts. but numbermaterial has
been returned by the companytractor yet and as such it ensures
that his accounts have number yet been finalised. exhibit 14
is a letter dated january 22 1967 addressed to the
appellant which also indicates that the p.w.d. authorities
had number treated the companytract as cancelled and had number
intimated to him the order made by the executive engineer. in february 1966 the appellant requested cancellation of the
contract. the executive engineer was willing to accept the
offer of cancellation and made an endorsement in that
behalf but numberhing was done thereafter. harihar bisoi was
apparently asked to take up the work- at the current
schedule of rates but even thereafter the companytract with
the appellant was number treated as canceled. it is true that by virtue of the explanation to s. 9a of the
representation of the people act where a companytract has been
fully performed by the person by whom it has been entered
into with the appropriate government the companytract shall be
deemed number to subsist by reason only of the fact that the
government has number performed its part of the companytract either
wholly or in part. in the present case the companytract was number
wholly performed by the appellant and unless he had
completed the companytract or showed that there was
determination by mutual assent of the companytract the
appellant cannumber claim that there was numbersubsisting companytract
at the date of the filing of the numberination paper. by
letter written by the appellant on july 22 1966 ext. c
the appellant made a request for extension of time by six
months to enable him to companyplete the work and by his letter
ext. d dated december 20 1966 he requested the
superintending engineer number to cancel the companytract or call
for new tenders. this companyduct of the appellant clearly
suggests that he did number treat the companytract as cancelled
number is there any clear evidence to show that the
authorities had treated the companytract as cancelled. the high
court was therefore right in holding that the case did number
fall within the explanation to s. 9a of the representation
of the people act and there was numberevidence of determination
of the companytract by mutual agreement. companynsel for the appellant companytended that the companytract for
execution of works was between the state and the appellant
and art. 299 of the companystitution applied thereto and since
the companytract was number shown to be executed in the name of the
governumber and by an authority companypetent to execute the
contract on behalf of the governumber the disqualification
under s. 9a did number apply. by cl.  1  of art. 299 all
contracts made in the exercise of the execute power of the
state must be expressed to be made by the governumber of the
state and all such companytracts made in the exercise of that
power must be executed on behalf of the governumber by such
persons and in such manner as he may direct or authorise. it is true that agreements were executed by the executive
engineer in form k-2 but numberfinal companytracts were executed in
form f-2. the appellant proceeded on the footing that there
was a binding companytract under which he had undertaken the
work of companystruction for the state and the state had
allowed him to work and had offered to pay him for the work
done at the
rates set out in form k-2. the appellant companyld number by
virtue of art. 299 sue in a civil companyrt on the agreement in
form k-2 for companypensation for breach of companytract. but we
are unable to hold that the appellant was number disqualified
under s. 9a of the representation of the people act merely
because the companytracts were number enforceable against the state
because of art. 299  1  of the companystitution. in chatturbhuj
vithaldas jasani v. moreshwar parashram and others 1  bose
j. in dealing with a case of disqualification under the
representation of the people act 1951 resulting from a
contract with the state which is number executed in the form
and manner prescribed by art. 299 observed
it may be that government will number be bound
by the companytract in that case but that is a
very different thing from saying that the
contracts as such are void and of numbereffect. it only means that the principal cannumber be
sued but we take it there would be numberhing to
prevent ratification especially if that was
for the benefit of government. we accordingly
hold that the companytracts in question here are
number void simply because the union government
could number have been sued on them by reason of
article 299 1 . undoubtedly for breach of the terms of a companytract number
executed in the manner prescribed by art. 299  1  a suit for
relief in a civil companyrt will number lie but on that account it
cannumber be said that a companytract for execution of works
undertaken by a person though number executed in manner
prescribed by art. 299 but which is treated by both the
parties thereto as binding will number operate as a
disqualification. in a recent judgment of this companyrt in
laliteshwar prasad sahi v. batteshwar prasad and others 1
this companyrt held that where an agreement for execution of
work had been entered into between the state government and
a private person by companyrespondence and the state government
has ratified the agreement and has treated the relation
between the parties as companytractual and has accepted
liability arising under the terms of the agreement as if it
were a pending companytract a disqualification under the
relevant provisions of the representation of the people act
results. as already pointed out the appellant had companymenced exe-
cution of the work but had number companypleted it. payment for
the work done was number made to the appellant. the companytract
was number determined by mutual agreement number was it abandoned. the companytract resulting from the acceptance of his tender
though number enforceable by suit against the state government
be-
 1  1954 s.c.r. 817.


appellate jurisdiction civil appeal number 31 of 1966.
appeal from the judgment gad decree dated december 5
1962 of the allahabad high companyrt in first appeal from order
number 260 of 1952.

m. mehta and s.p. nayar for the .appellant. k. sen s.v. gupte and s.s. shukla for the respondent. the judgment of the companyrt was delivered by
bachawat j. the respondent jai narain misra is a building
contractor. on september 2 1944 he entered into a companytract
 number es. 2944  with the government of india represented by
the chief engineer central companymand for the companystruction of
additional quarters at t.p. 2 kanpur. the companytract companytained
an arbitration clause. disputes between the parties relating
to the companytract were referred to company. h.t. faithful. the
arbitrator made his award on may 19 1947. on numberember 15
1947 the respondent made an application for modifying the
award and for remitting it to the arbitrator for re-
consideration. on january 5 1948 he filed additional
objections. by his order dated may 26 1952 the second
civil judge kanpur dismissed the objections and
pronumbernced judgment according to the award. the appellant
filed an appeal against the order under s. 39 of the
arbitration act 1940. by an order dated december 5 1962
the high companyrt allowed the appeal and set aside the award on
the ground that it was vague and uncertain. the present
appeal has been filed by the union of india on the strength
of a certificate granted by the high companyrt. it appears that the respondent submitted 23 items of
claim to the arbitrator. by his letter dated may 6 1947 he
added 6 more items of claim. the union of india made a
counter-claim. the
4sup. c.i./69-5
arbitrator was thus required to decide 29 disputed items of
claim and the companynter claim. the award recited that certain
differences between the parties in respect of companytract number
es. 2944 of 1944 had been referred to the arbitrator for his
decision and that a final award was being made of and
concerning the matters referred to him. the relevant part of
the award was as follows --
i award and direct that the following
sums be paid by the respondent to the
claimant. rupees twenty two thousand two hundred
and ninety two annas five being the amount due
to the claimant as calculated by the
respondent. rupees six thousand being the amount
of security deposit paid by the claimant and
number in possession of the respondent. rupees seventy nine thousand three
hundred and thirty nine. the total amount to be paid by the
respondent to the claimant is therefore one
lakh seven thousand six hundred and thirty one
annas five. each party to the dispute shall bear its
own-costs including the companyt of the stamp
duty on this award. the high companyrt held that the award suffered from a
patent ambiguity for the following reasons it was number
clear why the arbitrator awarded the first item of rs. 22292/5 and the 3rd item of rs. 79339 separately. the
arbitrator found only the first item of rs. 22292/5 to be
due to the respondent it was number clear whether he intended
also to award the 3rd item of rs. 79339 to the respondent. as the dispute companysisted of 29 items of claims and a
counter-claim the arbitrator should have made an award in
respect of all the items separately or in companybination or
should have made a lump award in respect of all the items. we are unable to accept this line of reasoning. the award on the face of it professes to be of and
concerning all matters submitted to the arbitrator. in
respect of all such matters the arbitrator awarded a sum cf
rs. 107631/5 to the respondent. this amount was made up
of three sums separately mentioned in the award. it was number
the case of the respondent in the trial companyrt that the
award was uncertain or number intelligible. the objection was
taken for the first time before the high companyrt. on the
record there is numberhing to show that the award was number
intelligible to the parties. the companyrt leans towards the companystruction that the award
is certain. prima facie the award is good and it is for the
defendant
10 show that it is uncertain. per jervis c.j. in mays
anr. v. cannel 1 . there is numberambiguity about the first
and the third items of the award. the uncontradicted
evidence of s. choudhry the witness for the government is
item number 1 of the award is that which was calculated by us
in the government bill. item number 3 is in respect of the
remaining claim of the plaintiff. item number 1 thus
represents the sum admitted by the government to be due to
the respondent and item number 3 represents the additional
sum found by the arbitrator to be due to him. the arbitrator is number bound to give an award on each
point. he can make his award on the whole case see ghulam
khan v. mohammad hassan  1 . an arbitrator may award one
sum generally in respect of all money claims submitted to
him unless the submission requires him to award separately
on some one or more of them see whiteworth v. hulse 3 . the arbitrator can lawfully make an award of a sum admitted
to be due and a lump sum in respect of the remaining claim. as the final award favour of the respondent professes to
be made of and companycerning all the matters referred to him
it must be presumed that in making it the arbitrator has
taken into companysideration all the claims and companynter claims
see harrison v. creswick  4  jewell v. christie  5 . we
hold that the award is a final and certain determination of
all the disputes referred. the arbitrator made an award in respect of the second
item under some misapprehension. the security deposit of
rs. 6000 had been returned to the respondent and there was
numberdispute about it before the arbitrator. in the
circumstances the arbitrator had numberauthority to award rs. 6000 to the respondent on account of the security
deposit. this part of the award is clearly separable and
may be struck out. moreover the award of rs. 6000 is
to the advantage of the respondent and the companyrt usually
declines to set aside an award at the instance of a party
who has number suffered any injury by the error see narsingh
narain singh v.ajodhya prasad singh 6 . we find also that
the award of rs. 6000 is number of numberconsequence. after the
award was made the respondent received a sum of rs. 100594/7 in full settlement of the award presumably
after giving the government credit for the sum of rs. 6000
already received by him. we therefore hold that there is numberground for setting
aside the award. the award is number vague and or uncertain
and does number suffer from any other infirmity.  1  24 law journal q.b. 4145.  2  i.l.r. 29 cal. 167 186

c. .  3   1866  lr. i ex. 251.  4   1853  13 c.b. 399.  15   1867  2 c.b. 296.  6   1912  15 c.l.j. 110
113.
mr. mehta also companytended that  1  the appeal before
the high companyrt was number maintainable under ss. 17 and 39 of
the arbitration act 1940 and  2  the respondent having
received payment in full settlement of the award was
estopped from challenging it.


criminal appellate jurisdiction criminal appeal number 265 of
1968.
appeal by special leave from the judgment and order dated
july 19 1968 of the patna high companyrt in criminal appeal number
72 of 1966.
nur-ud-din ahmed and b. p. singh for the appellants. p. singh for the respondent. the judgment of the companyrt was delivered by
hegde nine persons including the two appellants were tried
for the murder of ghulam rasool as well as for attempting to m
urder p.w. 9 mohd. islam. four out of those nine
accused were acquitted by the trial companyrt. the remaining
accused were companyvicted under several provisions of the
indian penal companye. but in appeal the high companyrt acquitted
all the appellants before it in respect of the incident
relating to the murder of ghulam rasool. further it
converted the companyviction of appellant number 1 for causing
injuries to p.w. 9 from one under s. 307 read with s. 34

p.c. to one under s. 326 i.p.c. and for that offence sen-
tenced him to suffer rigorous imprisonment for seven years. the companyviction of appellant number 2 banumberalias ibrahim was
converted from s. 307 i.p.c. read with s. 34 i.p.c. to one
under s. 324 i.p.c. and for that offence he was sentenced
to suffer rigorous imprisonment for three years. as against
that decision this appeal has been brought by special leave. the prosecution case in brief is that there was a qawali
competition about a month prior to- the occurrence. p.w. 4
imteyaz was one of the companypetitors. in order to show that
his performance was excellent accused nizam made a show of
making a present of rs. 3 to him on that occasion. but on
the very next day he demanded back that amount. after some
persuasion imteyaz returned rs. 2 but he failed to return
the balance of rs. 1. this led to a friction between imteyaz
and his friends on one side and nizam and his friends on the
other. on december 3 1964 some of the accused persons
including the appellants started a quarrel with imteyaz and

w. 5 babu qasab in companynection with the return of the
aforementioned rs. 1. because of the intervention of p.w. 13 numberhing serious happened on that day. but it is said
that on the next evening at about 7 p.m. when .w. 5 babu
oasab and p.w. 6 shamsuddin came near the scene of
occurrence the accused persons stopped them and assaulted
them. companying to knumber of that incident from p.w. 1 naso
his father ghulam rasool went to the scene. there he was
severely attacked as a result of which he died. thereafter

w. 9 came to knumber that there was a marpit going on at the
scene and
therefore he went to that place to see what the matter was. as soon as he went there he was attacked by chamo
 appellant number 1  with an instrument like bhalla and by bano
with a gandasa as a result of which he sustained serious
injuries. immediately p.w. 9 was shifted to the hospital
where his dying declaration was recorded on december 5
1964.
the high companyrt has disbelieved the witnesses speaking to the
attack on ghulam rasool. as mentioned earlier all the accu-
sed were acquitted of the charges relating to that incident. the high companyrt has also companye to the companyclusion that it is
number proved that there was any unlawful assembly. even in
the matter of attack on p.w. 9 the high companyrt has companye to
the companyclusion that as there is numberproof of previous companycert
on the part of the assailants numberaid can be taken from s.
34 i.p.c. companysequently it companyvicted the assailants of p.w. 9 only for the injuries caused by them. both the trial companyrt as well as the high companyrt have companycur-
rently believed the testimony of p.w. 9. his testimony is
fully companyroborated by the medical evidence adduced in the
case he had sustained two serious injuries one on the
stomach and the other on the shoulder blade. as a result of
the stomach injury his intestines had companye out. the
evidence of p.w. 10 dr. ambika prasad who examined p.w. 9
corroborates his testimony. further companyroboration for the
testimony of p.w. 9 is available from the dying declaration
given by him in the hospital on the 5th of december 1964.
this companyrt ordinarily does number reappreciate the evidence un-
less it is satisfied that exceptional and special
circumstances exist for doing so. the companyrt must be
satisfied that as a result of serious misappreciation of the
evidence by the trial companyrt and the high companyrt substantial
and grave injustice has been done. it was held by this
court in hem rai v. the state of ajmer  1  that unless it is
shown that exceptional and special circumstances exist that
substantial and grave injustice has been done and the case
in question presents features of sufficient gravity to
warrant a review of the decision appealed against this
court does number exercise its over-riding powers under art. 136 1  of the companystitution. it is further held therein that
the circumstance that the appeal has been admitted by
special leave does number entitle the appellant to open out the
whole case and companytest all the findings of fact and raise
every point which companyld be raised in the high companyrt. even
at the final hearing only those points can be urged which
are fit to be urged at the preliminary stage when the leave
to appeal is asked for.  1  1954 s.c. r. 1133.
it is fully established that p.w 9 was injured at about the
time and the place mentioned in the-charge. the incident
had taken place when there was still day light. the
appellants were well knumbern to the injured. hence he had no
difficulty in identifying them. it is number shown that p.w. 9
had any motive to falsely implicate the appellants. he bad
mentioned the names of the appellants as his assailants at
the earliest possible opportunity. the version given by him
as regards the manner of attack on him is companyroborated by
medical evidence. it is true that the high companyrt has number
accepted the evidence of p.ws. 1 and 2 who sought to
corroborate the testimony of p.w. 9. that cannumber throw any
doubt on the testimony of p.w. 9. the probabilities of the
case are in favour of the version given by p.w. 9.
the only thing urged against the evidence of p.w. 9 is that
in his dying declaration he had said that a-1 had attacked
him with a bhalla but during his evidence in companyrt he
stated that he was attacked by an instrument resembling
bhalla. later on it was proved through him that he was
attacked by the instrument exh. 1 which is a kafgir. this
contradiction is of very minumber significance. anumberher
contradiction brought out at the time of his cross-
examination was that during his evidence he had merely
spoken to the attack on him by the appellants but in his
dying declaration in addition to saying that these
appellants had attacked him he had also stated that after
he fell down some of the other accused had attacked him with
sticks. this statement appears to be an exaggeration. but
under the circumstances of the case that embellishment is
number sufficient to detract from the value to be attached to
his testimony. as mentioned earlier both the trial companyrt as
well as the high companyrt have accepted his testimony as being
substantially true. we see numberreason to differ from that
conclusion.


civil appellate jurisdiction civil appeal number 166 of
1969.
from the judgment and order dated 4- 5-1966 of the
rajasthan high companyrt in d.b. civil misc. writ number 74 of
1965.

n. phadke m. qamaruddin mrs. m. qamaruddin and v.

phadke for the appellant. s. ray s. m. jain d. d. patodia and s. k. jain for
respondents 1 and 2.
appeal set down ex parte against rr. 3 and 4.
the judgment of the companyrt was delivered by
sen j. this appeal by certificate is directed against
the judgment of the rajasthan high companyrt dated may 4 1966
holding that inclusion of the disputed property in the list
of wakfs published by the board of muslim wakfs rajasthan
under sub-s.  2  of s. 5 of title wakf act 1954 is number
binding on the respondents number. 1 and 2 the mortgagee
purchasers and restraining the board from taking only sleeps
under s. 36b of the act for evicting them from the same. the subject matter in dispute is a two-storeyed
building knumbers as dharamshala or musafirkhana situate on
mirza ismail road at jaipur. the building was companystructed by
the late haji mohammad ali khan a sessions judge of the
erstwhile princely state of jaipur who owned a companysiderable
estate on a plot of land admeasuring 5 bighas and 3 biswas
obtained from the mehakma mensa aliya companyncil with the
approval of the ruler of jaipur under a patta dated february
23 1886 for companystruction of a haveli and dharamshala. it
appears that haji mohammad ali khan before his death in the
year 1912 had executed two wills one on february 17 191 o
and the other on july 1 1911 by which after making several
bequests he acknumberledged that he had dedicated the said
property in wakf for its use as a dharammshala and
appointed his son ehsen ali khan as its mutawalli. after the
death of haji mohammad ali khan there was a suit for
partition of the property brought by his son faiyaz ali khan
against his brother ehsari ali khan being original suit number
128 of 1930 and the building was left out of partition being
wakf property. it however appears that the mutawalli ehsan ali khan
mortgaged the property with possession with seth bijaylal
father of respondent number 2 and bhuramal father of
respondent number 1 for rs. 7999- and executed a mortgage
deed dated july 30 1944 in their favour for the purpose or
purchasing a strip of land in front of the building from the
municipal companyncil jaipur and thereafter companystructed
verandahs on the ground floor and the first floor. for
making this companystruction he raised a further loan of rs. 9999/- by effecting a second mortgage by executing the
mortgage deed dated july 7 1945 in favour of the said
mortgagees. the respondents number. 1 and 2 purchased the
ground floor of the building from ehsan ali khan for rs. 19999/- by means of a registered sale dead dated numberember
23 1954. the companysideration was applied towards satisfaction
of the two previous mortgages. thereafter they purchased
the first floor of the said building from him for rs. 13999/- by means of a registered sale deed dated july 31
1956.
the wakf act 1954 was extended to the state of
rajasthan on february 1 1955. the board of muslim wakfs
rajashthan was companystituted by the state government on august
6 1962 in accordance with s. 9 and thereafter the
government appointed a companymissioner of wakfs under sub-s. 1
of s.4 for the purpose of making survey of wakf properties
existing in the state at the date of the companymencement of
the act. on august 30 1962 one shauket ali khan the
respondent number 3 applied to the companymissioner of wakfs
alleging that the aforesaid property was wakf property and
therefore its transfer by ehsan ali khan who was its
mutawalli in favour of the respondents number. 1 and 2 was
invalid and companysequently prayed that the property be
declared to be wakf property and possession of the same be
handed over to the wakf companymittee. the companymissioner of wakfs
accordingly issued numberice to the respondents. number. 1 and 2
the mortgagee purchasers. in response to the numberice the
respondents number. 1 and 2 appeared before the companymissioner of
wakfs on september 19 1962 and raised a preliminary
objection as to the jurisdiction denying that the disputed
property was wakf property and companytended that the
commissioner of wakfs had numberjurisdiction to make an enquiry
as to whether a particular property is wakf property or number. the companymissioner of wakfs by his order dated september 19
1962 over-ruled the objection. thereupon the respondents
number. 1 and 2 filled a writ petition before the rajasthan
high companyrt but the high companyrt by its order dated october
11 1962 dismissals the petition liming observing that the
commissioner had obviously numberjurisdiction j to decide any
question relating to the title of the respondents number. 1 and
2 or to eject them from the property without taking recourse
to a civil suit. the companymissioner of wakfs however felt
that he was number bound by these observations of the high
court since he was number served with a numberice and accordingly
decided to proceed with the enquiry. in . companysequence
thereof the respondents number. 1 and 2 had to participate in
the proceedings. on october 19 1962 they filed their reply
before the companymissioner of wakfs and joined issue on the
question as to whether the disputed property was wakf
property or number. in their reply they pleaded inter alia
that the property was number a wakf and that the wills had
indeed been cancelled in a suit. the companymissioner of wakfs
by his report dated december is 1964 on the basis of the
evidence led before him held the disputed property to be
wakf property recommended that it be recorded as such and
accordingly forwarded a report to that effect to the state
government as required under sub-s. 3  of s.4. on receipt of the report of the companymissioner of wakfs
forwarded to it by the state government under sub-s.  1  of

s the board of muslim
wakfs published a numberification for inclusion of the property
in dispute a in the list of wakfs existing in the state in
the rajasthan rajpatra dated december 2 1965. thereafter
the respondents number. and 2 filed a writ petition in the
high companyrt challenging the legality and validity of the
proceedings taken by the companymissioner of wakfs. it was
contended that on the basis of such report the board of
muslim wakfs was number entitled to include their property in
the list of wakfs published under sub-s. 2  of s.5. in allowing the petition the high companyrt held that the
entire scheme or the wakf act 1954 indicates that the
board of wakfs jurisdiction is companyfined to matters of
administration of the wakfs and number to adjudication of
questions of title. in view it was evident that the act did
number invest the board of wakfs or the companymissioner of wakfs
with the power to decide the question whether a property
belonged to a wakf or number and more so where a person
claiming title is a stranger to the wakf. it accordingly
held that a companymissioner of wakfs appointed under sub-s. 1
of s. 4  of the act has numberjurisdiction under sub-s. 3  of
s. 4 to enquire whether or number a certain property is wakf
property when such a dispute is raised by such a person. it
further held that the object of s. 6 is to narrow down the
dispute between the board of wakfs the mutawalli and the
person interested in the wakf as defined in s. 3.
consequently the high companyrt held that the failure of a
stranger to the wakf to institute a suit in a companyrt of
competent jurisdiction for a decision of such question
namely whether a particular property is a wakf property or
number cannumber make the inclusion of such property in the list
of wakfs published by the board under sub-s.  2  of s. 5 of
the act final and companyclusive under sub-s.  4  of s. 6 of the
act. it also held that the board is number invested with
jurisdiction to enquire into and decide the questions of
title to or possession of the properties belonging to
third parties under s. 27 of the act. it is argued for the appellant firstly that the words
for the purpose of making a survey of wakf properties are
wide enumbergh and companyfer ample power on the companymissioner to
investigate and adjudicate upon the question whether a
certain property is wakf property or number during the companyrse
of his survey of. wakf properties in the state of rajasthan
and secondly the failure of the respondents number. l and 2 to
file a suit within the time allowed by sub-s.  1  of s. 6 of
the act makes the inclusion of the disputed property in the
list of wakfs published by the board of wakfs under sub-
s. 2  of s.5 final and companyclusive. tn support of the
contentions it is urged that the word therein in the
expression any per- son interested therein appearing in
sub-s. 1  of s.6 qualify title words wakf property and
therefore the expression any person interested 817sci/78
therein cannumber in the companytext in which it appears mean
person interested in a wakf as defined in s. 3 h  of the
act as wrongly assumed by the high companyrt. it is therefore
urged that the right of suit given under s. 6 1  of the act
can be availed of by a person affected by the publication of
the list of wakfs under sub-s. 2  of s.5 i.e. it includes
even a stranger. in reply it is submitted on behalf of the respondents
number. 1 and 2 that the scope of s. 6 is to narrow down the
dispute between the board of wakfs the mutawalli and any
person interested in the wakf as defined in s. 3 h . it is
urged that the high companyrt was therefore right in holding
that 6 refers only to such a dispute and cannumber affect the
right and title of a stranger to the wakf particularly of a
person belonging to anumberher religious denumberination. the
submission is that the word therein in sub-s.  1  of s. 6
in the companytext and setting in which it appears does number fit
in with the words wakf property in the companylocation of
words but qualifies the words the wakf immediately
presiding it. it is said that the word therein has been
used to avoid repetition of the words the wakf and number to
extend the ambit of the section to persons who fall outside
the scope of the expression person interested in a wakf as
defined in s.3 h . it is therefore urged that the
respondents number. 1 and 2 are wholly outside the purview of
s.6 1  and therefore they must necessarily fall outside
the scope of the enquiry under s.4 1  as the provisions
contained in s.4 5 and 6 form part of an integrated scheme. it is pointed out that on the terms of s.4 the companymissioner
of wakfs has numberpower to enquire whether or number a certain
property is wakf property when such dispute is raised by a
stranger to the wakf. in support of the companytention the
language of s. 4 is companytrasted with that of s.27 and it is
said that while the board of wakfs has the power to hold an
enquiry as to whether a particular property is wakf property
or number under s.27 the companymissioner of wakfs has numberpower to
hold such an enquiry. in order to appreciate the implications of the rival
contentions it is necessary number only to examine the scheme
of the act but also the purpose and object of the
legislation. the wakf act 1954 the act as the preamble shows
was enacted to provide for the better administration and
supervision of wakfs. the avowed object and purpose of the
act was to bring the management of wakfs though it vests
immediately in a mutawalli subject to the supervision the
state. it was enacted to replace the mussalman wakf act
1923 which merely provided for the submission of audited
accounts by mutawallis and was found to be wanting in
several respects and really number of much practical value. it
was found k that proceedings companyld be successfully defeated
simply on the plea taken by the mutawalli that there was no
wakf. to remove the lacunae the mussalman wakf  bombay
amendment  act 1935 amended the act. the bengal wakf act
1934 was enacted to create a machinery for the supervision
of wakfs in bengal. the united provinces followed suit and
the united provinces muslim wakf act 1936 was passed
creating a central wakf board. similarly bihar also passed
a legislation almost on the same lines. the working of these
acts brought out the necessity for one uniform and
consolidated legislation by the center. it was with this
view that the wakf act 1954 was enacted. the scheme of the act may be briefly indicated. section
2 makes the act applicable to all wakfs in india except to
durgah khawaja saheb ajmer. section 3 defines certain
terms and the term wakf and the expression person
interested in a wakf have been defined as follows
3.  h  person interested in a wakf means any
person who is entitled to receive any pecuniary or
other benefits from the wakf and includes-

any person who has a right to worship or to
perform any religious rite in a mosque
idgah imambara dargah khangah maqbara
graveyard or any other religious institution
connected with the wakf or to participate in
any religious or charitable institution under
the wakf

the wakif and any descendant of the wakif and
the mutawalli.  1  wakf means the permanent dedication by a
person professing islam of any movable or irremovable
property for any purpose recognised by the muslim law
as pious religious or charitable and includes

a wakf by user

grants  including mashrut-ul-khidmat  for any
purpose recognised by the muslim law as
pious religious or charitable and

a wakf-alal-aulad to the extent to which the
property is dedicated for any purpose
recognised by muslim law as pious religious
or charitable
and wakif means any person making such
dedication. the act companysists of several chapters and can
conveniently be divided into three parts. the first part
relates to the survey of wakfs. chapter ii is headed survey
of wakfs. sub-section  1  of s. 4 empowers the state
government to appoint for the state by a numberification a
commission of wakfs for the purpose of making survey of wakf
properties existing at the time of the companymencement of the
act. sub-section  3  enjoins the companymissioner to submit his
report to the state government after making such enquiry as
he may companysider necessary and the report is to companytain the
following particulars namely
 a  the number of wakfs in the state or as the
case may be any part thereof showing the
shia wakfs and sunni wakfs separately
 b  the nature and objects of each wakf
 c  the gross income of the property companyprised in
each wakf
 d  the amount of land revenue cesses rates and
taxes payable in respect of such property
 e  the expenses incurred in the realisation of
the income and the pay or other remuneration
of the mutawalli of each wakf and
 f  such other particulars relating to each wakf
as may be prescribed. sub-section  4  enjoins that the companymissioner while making
such enquiry shall have certain powers as are vested in a
civil companyrt under the companye of civil procedure 1908 namely
summoning and examining any witness requiring the discovery
and production of any document re questioning any public
record from any companyrt or office issuing companymissions for the
examination of any witness or accounts making any local
inspection or local inspection etc. sub-section  5  of s.4
runs thus

if during any such inquiry any dispute
arises as to whether a particular wakf is a shia wakf
or sunni wakf and there are clear indications in the
deed of wakf as to its nature the dispute shall be
decided on the basis of such deed. section 5 provides for publication of a list of wakfs
and is as follows
5.  1  on receipt of a report under sub-section
 3  of section 4 the state government shall forward a
copy of the same to the board. the board shall examine the report forwarded
to it under sub-section  1  and publish in the
official  gazette a list of wakfs existing in the
state or as the case may be the part of the state to
which the report relates and companytaining such
particulars as may be prescribed. section 6 which relates to adjudication of dispute
regarding wakfs b so far as material reads
6.  1  if any question arises whether a particular
property specified as wakf property in a list of wakfs
published under sub-section  2  of the section 5 is
wakf property or number or whether a wakf specified in
such list is a shia wakf or sunni wakf the board or the
mutawalli of the wakf or any person interested therein
may institute a suit in a civil companyrt of companypetent
jurisdiction for the decision of the question and the
decision of the civil companyrt in respect of such matter
shall be. final
provided that numbersuch suit shall be entertained by
the civil companyrt after the expire of one year from the
date of the public cation of the list of wakfs under
sub-section  2  of section 5.
. . . . the list of wakfs published under sub-section
 2  of section s shall unless it is modified in
pursuance of a decision of the civil companyrt under sub-
section  1  be final and companyclusive. chapter iia is about the companystitution of the central
wakf companyncil with which we are number companycerned. chapter iii
provides for establishment of a board of wakfs and defines
the nature of its duties powers and functions. this chapter
also provides for certain incidental matters. sub-section
 1  of section 15 provides that the general superintendence
of all wakfs in a state shall vest in the board so
established for the state and it shall be the duty of the
board to ensure that the wakfs under its superintendence are
properly maintained companytrolled and administered and the
income thereof is duly applied to the objects and for the
purpose for which such wakfs were created or intended. sub-
section  2  enumerates the various functions of the board. the next stage is that of registration of wakfs. that
subject is dealt with in chapter iv. section 25 lays down
that every wakf whether created before or after the
commencement of the act shall be registered at the office
of the board. section 26 requires the board to maintain a
register of wakfs. under s. 27 the board is invested
with the power to decide whether a certain property is wakf
property and reads as follows
27.  1  the board may itself companylect information
regarding any property which it has reason to believe
to be wakf property and if any question arises whether
a particular property is wakf property or number or
whether a wakf is a sunni wakf or a shia wakf it may
after making such inquiry as it may deem fit decide
the question. the decision of the board on any question
under sub-section  1  shall unless revoked or modified
by a civil companyrt of companypetent jurisdiction be final. section 28 empowers the board to direct a mutawalli to
apply for the registration of a wakf or to supply any
information regarding a wakf and the board may itself cause
the wakf to be registered or may at any time amend the
register of wakfs. the third stage then arises. after companypleting the
survey and finalising the registration of wakfs the board
which is an administrative body is empowered to supervise
and administer wakf property. chapter v deals with
mutawallis and wakf accounts. this chapter provides in
detail as to how mutawalli shall submit budget and tho
accounts and in what manner the board will be exercising its
control over the wakf properties. section 36a relates to
transfer of immovable property of wakfs. according to this
section numbertransfer of the wakf property is valid without
the previous sanction of the board. section 36b empowers
the board to recover certain wakf properties transferred
without the previous sanction of the board by sending a
requisition to the companylector. chapter vi relates to the
finance of tho board. chapter vii to judicial proceedings
and chapter viii to miscellaneous matters. it would thus
appear that the act is a companyplete companye dealing with the
better administration and supervision of wakfs. the high companyrt in its companysidered opinion in the light
of the historical background and precedents observed
the present act number 29 of 1954 is numberdoubt an
improvement on the mussalman wakf act 1923 but in our
view this also does number empower the board of wakfs to
decide the question whether a particular property is
wakf property or number if such a dispute is raised by a
person who is a stranger to wakf. there is a companysiderable body of authority interpreting
s. 10 of the mussalman wakf act 1923 in favour of the view
that where
the existence of a wakf was itself in dispute the district
judge had numberjurisdiction to inquire into its existence and
the matter companyld be settled only by instituting a regular
suit. the question came up for companysideration before several
high companyrts in india as will appear from nasrulla khan v.
wajid ali  1  wahid hasan v. abdul rahman 2  syed ali
mohammed v. companylector ff bhagalpur 3  mohammad baqar v.
mohammed qasim 4  nanha shah v. abdul hasan 5  and abdul
hussain v. mohmmad ebrahim riza.  x  the general trend of
opinion was that the district judge in dealing with in
application under s. 10  of that act had in the absence of
a clear provision in that behalf numberjurisdiction to try an
issue as to whether certain property was wakf property. it
was pointed out that if the legislature had the intention
to companyfer such power there would have been a provision like

s of charitable and religious trusts act 1920. in abdul
hussain v. mohmmad riza  supra  it was observed
considering the terms of the enactment and the
scope and purpose of the act is clear that the
legislature intended of income of wakf properties for
the purpose of providing some companytrol on the management
of properties which are admittedly wakf. it companyld number
have intended to include hl its scope the enquiry into
the vital questions whether the disputed property is
wakf property and the person in possession of it is a
mutwalli which are questions of fundamental character
such as companyld be the subject-matter of a suit alone. though sub-s.  3  of s. 4 of the act is rather unhappily
worded of the wakf act 1954.
the wakf act 1954 does in our opinion furnish a
complete machinery for the better administration and
supervision of wakfs. though sub-s.  3  of s. 4 of the act
is rather unhappily worded it is number a sound principle of
construction to interpret expressions used in one act with
reference to their use in anumberher act and decisions
rendered with reference to companystruction of one act cannumber
apply with reference to the provisions of anumberher act
unless the two acts are in pari materia. further when there
is numberambiguity in the

i.l.r. 52 all. 167.

i.l.r. 57 all. 754.

a.i.r. 1927 pat. 189.

i.l.r. 7 luck. 601  f.b.  a.i.r. 1938 pat. 137.

i.l.r.  1939  nag. 564.
statute it may number be permissible to refer to for purposes
of its companystruction any previous legislation or decisions
rendered therein. the questions that fall for determination upon the
appeal are two first whether a companymissioner of wakfs
appointed under sub-s.  1  of s. 4 of the wakf act 1954
has the jurisdiction under sub s.  3  of s. 4 to enquire
whether a certain property is wakf property or number when such
a dispute raised by a stranger to the wakf and second if
so whether the failure of such a person to institute a suit
in a civil companyrt of companypetent jurisdiction for decision of
such question within a period of one year as provided for
under sub-s.  1  of s. 6 makes the inclusion of such
property in the list of wakfs published by the board under
sub-s. 2  of s. 5 of the act final and companyclusive under sub-
s.  4  of s. 6
it is needless to stress that the whole purpose of the
survey of wakfs by the companymissioner of wakfs under sub-s.
 1  of s. 4 is to inform the board of wakfs as to the
existence of the existing wakfs in a state in order that
all such wakfs should be brought under the supervision and
control of the board of wakfs. while the high companyrt was in our view right in
determining the scope of sub-s.  1  of s. 6 of the act it
was clearly in error in cur tailing the ambit and scope of
an enquiry by the companymissioner of wakfs under sub-s.  3  of
s. 4 and that by the board of wakfs under s. 27 of the. act
in dealing with the scope of enquiry by the
commissioner of wakfs under sub-s.  3  of s. 4 the high
court adverts to the. heading of chapter ii and the
marginal numbere of sub-s.  1  of s. 4. it observes
the heading of section 4 with which this chapter
started was preliminary survey of wakfs. the use of
the word preliminary in the heading is one of
significance. the weight of authority is in favour of the view that the
marginal numbere upended to a section cannumber be used for
construing the section. lord macnaghten in balraj kunwar v.
jagatpal singh 1  companysidered it well settled that marginal
numberes cannumber be referred to for the purposes of
construction. this companyrt after referring to the above case
with approval said in companymissioner of income-tax v.
ahmedbhai umedbhai umarbhai company 2
marginal numberes in an indian statute as in an act
of parliament cannumber be referred to for the purpose of
construe the statute. ilr 26 all. 393  p.c.   2  1950 s.c.r. 335.
as explained by lord macnaghten in the privy companyncil
marginal numberes a are number part of an act of parliament. the very heading of chapter ii and the caption to s. 4
numberdoubt suggest that the companymissioner makes only a
preliminary survey regarding existing wakfs and the list of
wakfs prepared by him is published by the board and neither
the companymissioner number the board is required to make any
enquiry regarding the character of the property. that is to
say the making of survey is only an administrative act and
number a quasi-judicial act. but on a closer examination it
is clear that while making a survey of the existing wakfs
in a state under sub-s.  1  of 5. 4 the companymissioner is
required by sub-s.  3  to submit a report to the state
government in regard to the serval matters referred to in
cls.  a  to  f  thereof. there may be a dispute as between
the board the mutawalli or a person interested in the wakf
as regards  a  the existence of a wakf i.e. whether a
particular property is wakf property  b  whether it is a
shia wakf or a sunni wakf  c  extent of the property
attached to the wakf  d  the nature and object of the wakf
etc. while making such an enquiry the companymissioner is
invested by sub-s.  4  with the powers vested in a civil
court under the companye of civil procedure 1908 in respect of
the summoning and examining of any witness requiring the
discovery and production of any document requisitioning any
public record from any companyrt or office issuing companymissions
for the examination of any witness or accounts making any
local inspection or local investigation etc. in view of
these companyprehensive provisions it is number disputed before us
that the enquiry that the companymissioner makes for the purpose
of submission of his report under sub-s.  3 ? while making a
survey of existing wakfs in the estate under sub-s.  1  is
number purely of an administration nature but partakes of a
quasi-judicial in character in respect of the persons
falling within the scope of sub-s.  1  of s. 6.
it would be illogical to hold that while making a
survey of wakf properties existing in the state a
commissioner of wakfs appointed by the state government
under sub-s.  1  of s. 4 should have numberpower to enquire
whether a particular property is wakf property or number. if we
may refer to sub-s.  1  of s. 4 so far as material it
reads
the state government may by numberification in the
official gazette appoint for the state a companymissioner
of wakfs for the purpose of making a survey of wakf
properties existing in the state at the date of the
commencement of this act. it will be clear that the words for the purpose of making a
survey of wakf properties is a key to the companystruction of
the section the
ordinary meaning of the word survey as given in the
random house dictionary of english language is to take a
general or companyprehensive view of or appraise as a
situation. if the companymissioner of wakfs has the power to
make a survey it is but implicit that in the exercise of
such power he should enquire whether a wakf exists. the
making o such an enquiry is a necessary companycomitant of the
power to survey. the high companyrt was clearly in error in
observing
except sub-section  5  there is numberhing in
section 4 or in the rules made by the state to show
that the companymissioner is empowered to adjudicate on a
question if one arises whether a particular property
is a wakf property or number. we are of the opinion that the power of the
commissioner to survey wakf properties under sub-s.  1  or
to enquire and investigate into the several matters set out
in cls.  e  to  f  of sub-s.  3  cannumber be curtailed by
taking recourse to sub-5.  5 . the high companyrt was wholly
wrong in understanding the true implication of sub-s.  5  of
s. 4. it only lays down that if during any such enquiry
any dispute arises as to whether a particular wakf is a shia
wakf or a sunni wakf and there are clear indications in the
deed of wakf as to its nature the dispute shall be decided
on the basis of such deed. it therefore makes the wakf
deed companyclusive as to the nature of the wakf i.e. whether
it is a shia or a sunni wakf. in our view sub s. 5  of s. 4
cannumber be projected into sub-s.  1  for determining the
question whether a certain property is a wakf property or
number. number does it enter into an enquiry as to several of the
matters adverted into some of the clause of sub s.  3 . the matter can also be viewed from anumberher angle. if
sections 4 5 and 6 are parts of an integrated scheme as
asserted then it follows as a necessary companyollary that the
enquiry envisaged by sub-sections  1  and  3  of s. 4 must
cover the field defined by sub-s.  1  of s. 6. the opening
words of the section are
if any question arises whether a particular
property specified as wakf property in a list of wakfs
published under sub section  2  of section 5 is wakf
property or number or whether a wakf specified in such
list is a shia wakf or sunni wakf
they clearly envisage that the enquiry by the companymissioner
is number company fined to the question as to whether a particular
wakf is shia wakf or sunni wakf. it may also embrace within
itself a dispute as to whether a wakf exists. this is a
conduction which sub-s.  1  of s.4 must in its companytext and
setting bear. any other companystruction would indeed make
the act unworkable. while it is true that under the guise of judicial
interpretation the companyrt cannumber supply casus omissus it is
equally true that the companyrts in companystruing an act of
parliament must always try to give effect to the intention
of the legislature. in crawford v. spooner 1  the judicial
committee said
we cannumber aid the legislatures defective
phrasing of an act we cannumber add and mend and by
construction make up deficiencies which are left
there. to do so would be to usurp the function of the legislation. at the same time it is well settled that in companystruing the
provisions of a statute the companyrse should be slow to adopt a
construction which tends to make any part of the statute
meaningless or ineffective. thus an attempt must always be
made to reconcile the relevant provisions so as to advance
the remedy intended by the statute. it would certainly have been better if the legislature
had inserted a provision like section 6-c incorporated in
the mussalman wakf act 1923 by the mussalman wakf  bombay
amendment  act 1935 which was in force in the states of
maharashtra and gujarat namely
6-c. power of the companyrt to enquire  1  the companyrt
may either on its own motion or upon the application
of any person claiming to have an interest in a wakf
hold an enquiry in the prescribed manner act any time
to ascertain-

whether a wakf exists. failure to insert such a provision in sub.  3  of s. 4
however is of little companysequence. as already indicated the
power of the companymissioner to make a survey of existing wakf
properties carries with it by necessary implication the
power to enquire as to the existence of a wakf. perhaps the
legislature thought it to be a superfluity. that leaves us with the question as to the scope of
sub-s.  1  of s. 6. all that we have to companysider in this
appeal is whether if the companymissioner of wakfs had
jurisdiction to adjudicate and decide against the
respondents number. l and 2 that the property in dispute was
wakf property the list of wakfs published by the board of
wakfs under sub-s.  2  of 5. 5 would be final and companyclusive
against them under s. 6 4  in case they had number filed a suit
within a year from the publication of the lists the question
as to whether the respondents number. 1 and 2 can be
dispossessed or their possession can be threatened by the
board of wakfs by proceeding under s. 36b without filing a
suit in a civil companyrt of companypetent jurisdiction does number
arise for our companysideration
 1  1846 6 moors p.c. 1.
in the present case the respondents number. 1 and 2 who
are number muslims companytended that they are outside the scope
of sub-s.  1  of s. 6 and companysequently they have numberright
to file the suit companytemplated by that sub-section and
therefore the list of wakfs published by the board of wakfs
under sub-s.  2  of s. 5 cannumber be final and companyclusive
against them under sub-s.  4  of s. 6 it was urged that
respondents number. 1 and 2 were wholly outside the purview of
sub-s.  1  of s. 6 and they must therefore necessarily
fall outside the scope of the enquiry envisaged by sub-s.
 1  of s. 4 as the provisions companytained in sections 4 5
and 6 form part of an integrated scheme. the question that
arises for companysideration therefore is as to who are the
parties that companyld be taken to be companycerned in a proceeding
under sub-s.  1  of s. 6 of the act and whether the list
published under subs.  2  of s. s declaring certain property
to be wakf property would bind a person who is neither a
mutawalli number a person interested in the wakf. the answer to these questions must turn on the true
meaning and companystruction of the word therein in the
expression any person interest ted therein appearing in
sub-s.  1  of s. 6. in order to understand the meaning of
the word therein in our view it is necessary to refer to
the preceding words the board or the mutawalli of the
wakf. the word therein must necessarily refer to the
wakf which immediately pre cedes it. it cannumber refer to
the wakf property. sub-section  1  of s. 6 enumerates the
persons who can file suits and also the questions in respect
of which such suits can be filed. in enumerating the persons
who are empowered to file suits under this provision only
the board the mutawalli of the wakf and any person
interested therein thereby necessarily meaning any person
interested in the wakf are listed. it should be borne in
mind that the act deals with wakfs its institutions and its
properties. it would therefore. be logical and reasonable
to infer that its provisions empower only those who are
interested in the wakfs to institute suits. in dealing with the question the high companyrt observes
in our opinion the words any person interested
therein appearing in sub-section  1  of section 6 mean
numbermore than a person interested in a wakf as defined
in clause  h  of section 3 of the act
it is urged by learned companynsel for the petitioners
that the legislature has number used in section 6 1  the
words any person interested in a wakf and therefore
this meaning should number be given to the words any
person interested therein. this argument is number
tenable because the words any person inte-
rested therein appear soon after the mutawalli of the
wakf a and therefore the word therein has been used
to avoid re petition of the words in the wakf and number
to extend the scope of the section to persons who fall
outside the scope of the words person interested in
the wakf. the purpose of section 6 is to companyfine the
dispute between the wakf board the mutawalli and a
person interested in the wakf. that in our opinion is the right companystruction. we are fortified in that view by the decision of this
court in sirajul hag khan ors. v. the sunni central board
of wakf u.p. ors while companystruing s. 5 2  of the united
provinces muslins wakf act 1936 this companyrt interpreted the
expression any person interested in a wakf as meaning any
person interested in what is held to be a wakf that is in
the dedication of a property for a pious religious or
charitable purpose. it will be numbericed that sub-s.  1  of s.
6 of the act is based in sub-s.  2  of s. 5 of the united
provinces muslims wakf act 1936 which runs thus
the mutawalli of a wakf or any person interested
in a wakf or a central board may bring a suit in a
civil companyrt of companypetent jurisdiction for a declaration
that any transaction held by the companymissioner of wakfs
to be a wakf is number a wakf or any transaction held or
assumed by him number to be a wakf or that a wakf held by
him to pertain to a particular sect does number be- long
to that sect or that any wakf reported by such
commissioner as being subject to the provisions of this
act is exempted under section 2 or that any wakf held
by him to be so exempted is subject to this act. the provision to that section prescribed the period of
one years limitation as here to a suit by a mutawalli or
a person interested in the wakf. the two provisions are practically similar in companytent
except that the language of the main enacting part has been
altered in sub-s.  1  of s. 6 of the present act and put in
a proper form. in redrafting the section the sequence of
the different clauses has been changed therefore for the
expression any person interested in a wakf the legislature
had to use the expression any person interested therein. the word therein appearing in sub-s.  1  of s. 6 must
therefore mean any person interested in a waker as
defined in s. 3 h . the object of sub-s.  1  of s 6 is to
narrow down the dispute between the board of wakfs the
mutawalli and the person interested in the wakf as defined
in s. 3  h
 1  1959 s.c.r. 1287.
in this companytext the scope of s. 6 was examined by the
high companyrt and it observed
the purpose of sec. 6 is to companyfine the dispute
between the wakf board the mutawalli and a person
interested in the wakf. in other words if there is a
dispute whether a particular property is a wakf
property or number or whether a wakf is a shia wakf or a
sunni wakf then the board or the mutawalli of the wakf
or a person interested in the wakf as defined in sec. 3
may institute suit in a civil companyrt of companypetent
jurisdiction for the decision of the question. they can
file such a suit within one year of the date of the
publication of the list of wakfs and if numbersuch suit is
filed the list would be final and companyclusive between
them. the very object of the wakf act is to provide for
better administration and supervision of wakfs and the
board has been given powers of superintendence over all
wakfs which vest in the board. this provision seems to
have been made in order to avoid prolongation of
triangular disputes between the wakf board the
mutawalli and a person interested in the wakf who would
be a person of the same companymunity. it companyld never have
been the intention of the legislature to cast a cloud
on the right title or interest of persons who are number
muslims. that is if a person who is number-muslim whether
he be a christian a hindu a sikh a parsi or of any
other re ligneous denumberination and if he is in
possession of a certain property his right title and
interest cannumber be put in jeopardy simply because that
property is included in the list published under sub
sec.  2  of sec. 5.
the legislature companyld number have meant that he
should be driven to file a suit in a civil companyrt for
declaration of his title simply because the property in
his possession is included in the list. singularly the
legislature companyld number have meant to curtail the period
of limitation available to him under the limitation act
and to provide that he must file a suit within a year
or the list would be final and companyclusive against him. in our opinion sub-section  4  makes the list final
and companyclusive only between the wakf board the
mutawalli and the person interested in the wakf as
defined in section 3 and to numberother person. we are in agreement with this reasoning of the high
court. it follows that where a stranger who is a number-muslim
and is in possession of a certain property his right title
and interest therein cannumber be
put in jeopardy merely because the property is included in
the list. such a person is number required to file a suit for
a declaration of his title within a period of one year. the
special rule of limitation laid down in proviso to sub s.
 1  of s. 6 is number applicable to him. in other words the
list published by the board of wakfs under sub-s.  2  of s.
s scan be challenged by him by filing a suit for declaration
of title even after the expiry of the period of one year if
the necessity of filing such suit arises. incidentally the high companyrt also dealt with s. 27 of
the act and observed. s. 27 does number seem to suggest that it empowers
the board to decide the question whether a particular
property is wakf property or number if that challenge
comes from a stranger who is neither mutawalli number a
person interested in the wakf but who belongs to
anumberher religious denumberination and who claims a valid
title and lawful possession over that property. to ac
kept the respondents argument would mean that the board
would be given the powers of the civil companyrt to decide
such disputes between itself and strangers and thus to
make the boards decision final unless it is changed by
a civil companyrt of companypetent jurisdiction. if a dispute
is raised by a number muslim the board cannumber by simply
entering the property in the register of wakfs drive
him to take recourse to a civil companyrt
in our judgment the high companyrt was clearly in error in
dealing with s. 27 or s. 36b of the act. it appears from the
writ petition field the high companyrt that numberrelief was as
sought in respect of any action under s. 27. the
observations of the high companyrt were therefore strictly number
called for in regard to s. 27. it should have left the
question open. the question may arise if and when action
under s. 27 is taken. we therefore refrain from expressing
any opinion as to the scope of s. 27 of the act. likewise the high companyrt went on to companysider the impact
of s. 36b and observed
in our opinion this section cannumber apply in the
case of a property which is in the hands of a stranger
over whom the board has numbercontrol under the act
simply because the board happens to enter the property
in its register. in a case like the present one where
the petitioners claim their possession over the
property as mortgagees from the year 1944 and fur-
their claim their title and possession as vendees over
the same property from the year 1954 the board of
wakfs cannumber by
simply entering the property in the list of wakfs or
registering it in the register of wakfs drive them to
file a suit to establish their title or retain their
possession. it cannumber also seek to dispossess them from
the property by resorting to section 36b. it is for the
board to file a civil suit for a declaration that the
property in dispute is a wakf property and to obtain
its possession. it was really number necessary for the high companyrt to
decide whether s. 36b of the act was attracted or number in
the facts and circumstances of the case. we must accordingly held that the companymissioner of wakfs
acted within jurisdiction in holding the disputed property
to be wakf property. it must therefore follow that the
board of muslim wakfs rajasthan was justified in including
the property in the list of wakfs published under sub-s.  2
of s. s of the act. we must also hold on a companystruction of
sub-s.  1  of s. 6 that the list of wakfs so published by
the board was number final and companyclusive under sub s  4  of s.
6 against the respondents number. l and 2 due to their failure
to bring a suit within one year as companytemplated by sub s.
 1  of s. 6.
in view of the foregoing the right of the respondents
number. 1 and 2 in respect of the disputed property if at all
they have any will remain unaffected by the impugned
numberification. they are at liberty to bring a suit for the
establishment of their right and title if any to the
property. accordingly the order of the high companyrt allowing the
writ petition and declaring that the inclusion of the
property in dispute in the list of wakf published by the
board bf muslim wakfs rajasthan under sub-s.  2  of s. 5 of
the wakf act 1954 was number binding on the respondents number. 1
and 2 is upheld but its direct restraining the board of
muslim wakfs from entering the disputed property in the
register of wakfs and from dispossessing the respondents
number.