P L D 1959 (W (PLP)

This is an application in revision against the order of the learned District Judge, Sukhur removing the petitioner from the Mutawaliship of a mosque in summary proceedings. On 23rd June 1951 the District Judge passed an order on the application of the present petitioner appointing him Mutawali of what is called the White Mosque. This order had been passed on an application put in by the petitioner himself at a time when the office of the Mutawali was vacant. The order is a short one and I will reproduce it: " He appears to be suitable and fit. He is appointed Mutawali of the White Mosque." It does not appear under what provision of law this order was passed. Learned counsel for the petitioner says it was passed in exercise of the powers of the District Judge as a Kazi under Muslim Law. There is authority ii support of the proposition that a District Judge can on an application appoint a Mutawali when the office is vacant acting as a Kazi. It is not necessary for me to go into the correctness of this view because the order appointing the petitioner as Mutawali has not been challenged before me. After the order the petitioner began manag ing the mosque with the aid of a committee which according to his allegation he had himself constituted." On 30th July 1958 an application was put in by Muhammad Siddiq son of Muammad Umer, the Secretary of the Committee, before the District Judge, alleging that the petitioner was an illiterate and a quarrelsome person ho had secured the office of Mutawalliship because his father w s a Mullah of the mosque that the Imam and Mozzan were under his influence and that he was' forcing the Imam to put forward certain disputed religious dogmas with the result that reasonable‑ persons had stopped coming to the mosque and that the petitioner was creating a rift between the members of the Committee. On these grounds it was prayed that he be removed. It had been stated in the appli cation that he was not a legally appointed Mutawali but as I have already stated the validity of the appointment has not been challenged before me. The allegations in this application having been denied, evi dence was led by both the parties though it was short. Muhammad Siddiq, the applicant (before the District Judge) produced one Muhammad Siddiq son of Haji Muhammad Saeed who stated that it was he who by the use of his personal influence had got the mosque rebuilt at a cost of Rs. 30,000 ; that because of the present Pesh Imam and the Mutawali a number of persons had stopped coming to the mosque ; that there were disturbances in the mosque and that the petitioner had neither money nor time nor influence to bring about an improvement in the affairs of the mosque. The present petitioner made his own statement in the witness box. He stated that he was getting Rs. 150 in the Telephone Department at Rohri, that there was a dispute between the Secretary and Pesh Imam whom the Secretary removed and to which removal the petitioner objected, that he was poor and had been receiving alms in the mosque for himself and for his children and that he was being paid some allowance for looking after the mosque by Hafiz Muhammad Siddiq (it appears to refer not to the Secretary but to the witness). The learned District Judge found that the petitioner was poor and had failed to look after the affairs of the mosque in a proper manner and as a result of mismanagement respectable people of the‑ locality had ceased to come to the mosque for prayer. He tell which these inferences could be based. The evidence of the only witness produced was wholly vague on this point and consisted of only one or two sentences. The learned District Judge removed the petitioner and appointed Hafiz Muhammad Siddiq who had been produced as a witness and it is that witness who is now respondent in this petition. The petitioner challenges the jurisdiction of the learned District Judge to remove him. It is urged that section 92 of the Civil Procedure Code is a bar to the removal of a Mutawali except by means of a suit under that section or under the Religious Endowments Act. The bar is quite clearly contained in subsection (2) of section 92 which provides that the reliefs mentioned in that section cannot be granted except by means of a suit under that section or under the Religious Endowments Act. Removal of the Trustee is one of the reliefs mentioned in that section. Learned counsel for the respondent relies upon section 6‑M of the Mussalman Wakf (Sind Amendment) Act, 1935 which added some provisions to the Mussalman Wakf Act, 1923. Section 6‑M runs :‑ " 6‑M. (1) It shall be competent to the Court to refer at any time to the Wakf Committee or any three or more members thereof for advice, opinion, enquiry, report or recommendation, within such time as the Court may direct, any matter relating to the registration, superintendence, administration and control of Wakfs, and in particular any matter relating to‑ (a) the conduct of a Mutawalli or a trustee in the administra tion of a Wakf or his fitness to continue as a Mutawalli or a trustee, (b) the settlement, cancellation or alteration of a scheme for the administration of a Wakf, or (c) the application of the funds of a wakf or any surplus thereof. (2) When the Court has referred any of the matters men tioned in subsection (1) to a Wakf committee or any members thereof for advice, opinion, enquiry, report or recommendation, and the committee or the members thereof, as the case may be, have, either unanimously or by a majority, made their recom mendation in relation to the matter referred to them, the Court may pass orders as it thinks fit after giving due considera tion to such recommendation‑ (i) suspending, removing or dismissing a Mutawalli or trustee, (ii) appointing a new Mutawalli or trustee, (iii) settling, cancelling or altering a scheme for the administra tion of a Wakf, (iv) directing the application, investment or deposit of the funds of a Wakf or any surplus thereof in a particular manner or to a particular manner or to a particular purpose. (v) generally for carrying out the purposes of the Act. Provided that nothing in this section shall be deemed to authorise the Court to pass any order which is in consistent with the objects and purposes of the wakf: Provided further that no order under this section shall be passed to the prejudice of any Mutawalli or trustee without giving such Mutawalli or trustee an opportunity to be heard. (3) For the performance of any of the duties under sub section (2) the Wakf Committee or any members thereof to whom the Court has referred any matter for advice, opinion, enquiry, report, or recommendation, the committee or such members thereof may by order in writing require‑ (a) the production of any document necessary for the purpose ; (b) the attendance of any person for the purpose of giving evidence or for the production of any document referred to in clause (a). (4) The provisions of subsections (2) and (3) of section 6‑C shall so far as may be, apply to any inquiry under sub section (1) or (2)." Learned counsel urges that the District Judge is empowered to pass an order of removal under section 6‑M(2) but it is apparent that this subsection will apply only in a case where the matter has been referred first to the wakf committee or members of the Wakf committee. There has been no Wakf committee in Sind since 1955. Learned counsel for the respondent contends that the requirement of the section " when the Court has referred any of the matters mentioned in subsection (1) to a Wakf committee or any members thereof " is not a condition precedent but is a matter of procedure. This contention I am not prepared to accept. The words of subsection (2) are clear and apply only to a case where the Court has referred the matter to the Wakf committee or the members. It will also be observed that subsection (1) provides for reference to the committee and sub section (2) provides for what is to happen after there has been a reference. The power granted by section 6‑M for suspension, removal or dismissal of Mutawallis is a very exceptional one. It empowers the District Judge to pass orders in summary proceedings and without even allowing the Mutawalli opportunity to lead evidence, the only opportunity given to the Mutawalli being that of a hearing. Even assuming that the opportunity to be heard in cludes opportunity to lead evidence, the power is still exceptional for the proceedings are after all summary and no appeal lies against ; the order of the District Judge under this section. In the case of a suit ‑under section 92, Civil Procedure Code or under the Religious Endowments Act, an appeal, a second appeal and possibly a third appeal may lie against the decree of the Court removing the Mutawalli. Provisions which grant exceptional power have to be strictly construed. If the intention of the Legislature was to grant a general power to the District Judge to pass orders even in the absence of any reference to Wakf committee, the legislature ought to have said so. There is no other provision in the Mussalman Wakf (Sind Amendment) Act, 1935 which may imply a jurisdiction in the District Judge to remove or dismiss a Mutawalli. I am unable to agree that section 6‑M grants such jurisdiction unqualified by the reference to the Wakf committee. It was urged further that the Government not having appointed any Wakf committee a reference to the wakf committee had become impossible and if something became impossible there was no deed to comply with it. This kind of argument has no application to a case where the exercise of jurisdiction depends upon the existence of a condition precedent. We are not dealing with a case of contract. If the condition precedent to a jurisdic tion becomes impossible no jurisdiction can exist. This revision petition is allowed and the order of the District Judge is set aside but there is no order as to costs. K. B. A./A. H. Petition allowed.