PETITIONER: BASHIRUDDIN ASHRAF Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 25/04/1957 BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, SUDHI RANJAN (CJ) DAS, S.K. MENON, P. GOVINDA SARKAR, A.K. CITATION: 1957 AIR 645 1957 SCR 1032 ACT: Mutawalli--Majlis, Powers of-Budget-Mutawalli's failure to Prepare and send copy to Majlis-Conviction-Validity- -Sentence of fine, in default imprisonment--Legality-Bihr Waqfs Act, 1947 (Bihar Act 8 Of 1948), ss. 58, 65- Constitution of India, Art. 19 (1) (g). HEADNOTE: The appellant failed to prepare a budget of the Waqf Estate of which he was the mutawalli, for the year 1952-53 and send a copy of it to the Majlis before January 15, 1952, as he was bound to do under S. 58(1) of the Bihar Waqfs Act, 1947, and was convicted by the 'Magistrate under s. 65(1) of the Act and sentenced to pay a fine of Rs. 100, in default to undergo fifteen days simple imprisonment. It was contended for him that the conviction and sentence were not valid because (1) s. 58 of the Act contravened Art. 19(1) (g) of the Constitution of India, as it gave unrestricted power to the Majlis to alter or modify the budget prepared by the mutawalli without a right of appeal against the action of the Majlis and so imposed an unreasonable restriction on the mutawalli in carrying on his occupation as such, and (2) s. 65 Of the Act did not provide for any imprisonment in default of payment of fine. Held, that having regard to the fact that a mutawalli occupies the position of a manager or custodian and the supervision over him by the Majlis with respect to due administration of the waqf property is necessary and that the powers of the Majlis to alter or modify the budget prepared by the mutawalli are controlled by sub-s. (6) Of s. 58 of the Act, the restrictions imposed by S. 58 Of the Act on the exercise of his powers 1033 by a mutawalli are reasonable. Accordingly, the provisions Of S. 58 'of the Act do not offend Art. 19 (i) (g) of the Constitution. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindya Thirtha Swamiar of Sri Shirur Mutt, (1954) S.C.R. 1005, relied on. The order of the Magistrate providing for imprisonment in default of payment of fine is not invalid in view Of S. 33 of the Code of Criminal Procedure read with ss. 4o and 67 of the Indian Penal Code. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 39 of
1955.
Appeal by special leave from the judgment and order dated
January 28, 1954, of the Patna High Court in Criminal
Revision No. 69 of 1954 arising out of the judgment and
order dated November 23, 1953, of the Sessions Judge, Patna,
in Criminal Appeal No. 288 of 1953 against the judgment and
order dated August 27, 1953, of the Munsif Magistrate of
Patna Sadar.
Murtaza Fazl Ali and R. C. Prasad, for the appellant. S. P.
Varma, for respondent No. 1.
1957. April 25. The Judgment of the Court was delivered by
IMAM J.-The appellant was removed from his position as
mutawalli of Gholam Yahia Waqf Estate on September 1, 1951,
by an order passed by the Majlis constituted under the Bihar
Waqfs Act, 1947 (Bihar Act 8 of 1948) (hereinafter referred
to as the Act). He appealed to the District Judge of
Monghyr, as he was entitled to do under the provisions of
the Act, and the operation of the order of removal passed by
the Majlis was stayed by the District Judge pending the
hearing of his appeal. A complaint against him was filed in
the Court of the Sadar Sub-Divisional Magistrate, Patna, on
July 1, 1952, by Mahommad Sual, Nazir of the Majlis, on the
order of its Sadar. It was alleged in the complaint that it
was the duty of the appellant’ to prepare a budget of the
waqf estate of which he was a mutawalli, under s. 58(1) of
the Act, for the year
133
1034
1952-53 and to send a copy of it to the Majlis before
January 15, 1952. The appellant had deliberately failed to
comply with the aforesaid provisions and therefore had
committed an offence punishable under s. 65(1) of the Act.
The office of the Majlis where the budget had to be filed
was situated at Patna within the local jurisdiction of the
Magistrate in whose Court the complaint was filed. The
appellant was subsequently tried at Patna by a Munsif
Magistrate with First Class powers and convicted under s.
65(1) of the Act and sentenced to pay a fine of Rs. 100, in
default to undergo fifteen days simple imprisonment. He
appealed to the Sessions Judge of Patna who dismissed his
appeal. An application filed by the appellant in the Patna
High Court in its criminal revisional jurisdiction was
rejected. The appellant obtained special leave to appeal
against the order of the High Court.
It has been found as a fact that the appellant failed to
prepare a budget of the estimated income and expenditure of
the waqf estate and to send a copy of it to the Majlis
before January 15, 1952. The only question for
consideration is whether the appellant’s failure to comply
with the provisions of s. 58(1) of the Act makes him liable
to be punished under s. 65(1). At this stage, it is
necessary to set out the provisions of a. 58 of the Act
which are as follows:
” 58 (1) The mutawalli of every waqf shall, before the
fifteenth day of January in each year, prepare a budget of
the estimated income and expenditure of such waqf for the
next succeeding financial year and shall forthwith send a
copy thereof to the Majlis.
(2)The Majlis may, within six weeks from the date on which
it receives such copy, alter or modify the budget in such
manner and to such extent as it thinks fit.
(3)If the Majlis alters or modifies any budget under sub-
section (2), it, shall forthwith send a copy of the budget
as so altered or modified to the mutawalli of the waqf
concerned, and the budget as so altered or modified shall be
deemed to be the budget of the waqf.
(4)If within the period mentioned in subsection (2) and for
two weeks thereafter the Majlis does
1035
not send to the mutawalli of the waqf concerned a copy of
the budget altered or modified as aforesaid, the Majlis
shall be deemed to have approved the budget without any
alteration or modification.
(5)If the mutawalli fails to prepare and send a copy of the
budget as required by sub-section (1), the Majlis shall
prepare a budget for the waqf concerned and such budget
shall be deemed to be the budget of that waqf for the year
in question.
(6)Nothing contained in this section shall be deemed to
authorise the Majlis to alter or modify any budget in a
manner or to an extent inconsistent with the wishes of the
waqif, so far as such wishes can be ascertained, or the
provisions of this Act.”
Section 65 provides that a mutawalli may be punished if he
fails to comply with certain matters mentioned therein
including his failure to comply with sub-s. (1) of s. 58.
Sub-section (1) of s. 65 reads as follows:
” 65 (1) If a mutawalli fails without reasonable cause, the
burden of proving which shall be upon him, to comply with
any order or direction made or issued under clauses (i), (o)
or (q) of sub-section (2) of section 27 or under section 56,
to comply with the provisions of sub-section (1) of section
57, sub-section (1) of section 58, section 59 or section 60,
or to furnish any statement, annual account, estimate,
explanation or other document or information relating to the
waqf of which he is mutawalli, which he is required or
called upon to furnish under any of the other provisions of
this Act, he shall be punishable with fine which may extend,
in the case of the first offence, to two hundred rupees and,
in the case of second or any subsequent offence, to five
hundred rupees. ”
It is clear from the provisions of s. 58(1) that before
January 15, each year, the mutawalli of each waqf shall
prepare a budget for the next succeeding financial year and
shall forthwith send a copy thereof to the Majlis. Under s.
65 (1), if he fails to comply with the above, he is liable
to be punished with fine.
It was contended by the learned Advocate for the appellant
that s. 58 of the Act was an invalid provision because it
gave unrestricted power to the Majlis to alter
1036
or modify the budget prepared by the mutawalli without a
right of appeal against the action of the Majlis altering or
modifying the budget. The provisions of s. 58 imposed an
unreasonable restriction on the mutawalli in carrying on his
occupation as such. Accordingly, the provisions of s. 58
offended Art. 19(1) (g) of the Constitution..
The Act was enacted for the purpose of providing for the
better administration of waqfs in the State of Bihar as its
preamble states. Section 5 provides for the establishment
of two bodies corporate known as Majlis to discharge
respectively the functions assigned to them by the Act with
reference to Sunni waqfs and Shia waqfs. Section 27
provides that the general superintendence of all waqfs in
the State shall be vested in the Majlis, which will do all
things reasonable and necessary to ensure that waqfs are
properly supervised and administered and that the income
thereof is duly appropriated and applied to the objects of
such waqfs and in accordance with the purposes for which
such waqfs were founded or for which they exist so far as
such objects and purposes can be ascertained. Sub-section
(2) of this section enumerates, inter alia,. the various
powers and duties of the Majlis including the removal of a
mutawalli from his office under certain conditions. The
various powers set out in this subsection clearly indicate
that the mutawalli is subordinate to and under the control
of the Majlis. The Majlis under s. 47 may also make an
application to the District Judge for an order, amongst
other things, for the removal of the mutawalli. Chapter X
deals with mutawallis and their duties and under s. 56 it is
specifically enjoined that every mutawalli shall carry out
all directions which may from time to time be issued to him
by the Majlis under any of the provisions of the Act.
Previous to the passing of the Act, the Mussalman Wakf Act
(Central Act XLII of 1923) was enacted to make provisions
for the better management of waqf property and for ensuring
the keeping and publication of proper accounts in respect of
such properties. It applied to all waqfs, except those to
which s. 3 of the Mussalman Wakf Validating Act,
1037
1913, applied. Reference to some of the provisions of the
Mussalman Wakf Act may now be made. Section 3 provides for
the furnishing of particulars relating to a waqf to the
Court, that is to say, a District Judge or within the limits
of ordinary original civil jurisdiction, to such Court
subordinate to the High Court as the State Government may by
notification in the Official Gazette designate. Section 5
provides that within three months after the thirty-first day
of March next following the date on which the statement
referred to in s. 3 had been furnished, and thereafter
within three months of the thirty-first day of March in
every year, the mutawalli shall prepare and furnish to the
Court a full and true statement of accounts of all moneys
received or expended by him on behalf of the waqf of which
he was the mutawalli during the period of twelve months
ending on such thirty-first day of March. Section 10
provides for punishment for failure to comply with the
provisions of s. 3 or s. 4 by a mutawalli, who becomes
liable to be fined a sum which may extend to five hundred
rupees, or, in the case of a second or subsequent offence
which may extend to two thousand rupees. It is clear that
the purpose of the Act and that of the Mussalman Wakf Act
was to ensure that the waqfs were properly administered and
that the income of the waqf was duly appropriated for the
purposes for which the waqf had been founded. Having regard
to the fact that the mutawalli occupied the position of a
manager or a custodian and that some kind of control or
supervision over him by the Majlis with respect to due
administration of the waqf property and due appropriation of
funds was certainly necessary, we are of the opinion that
the provisions of s. 58 of the Act are reasonable
restrictions on the exercise of his duties as a mutawalli
and it cannot be said that the provisions of s. 58 offend
any of the provisions of the Constitution. As was said in
the case of The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt(1) a budget is indispensable in all public institutions
and that it is not per se
(1) [1954] S.C.R. 1005, 1037.
1038
unreasonable to provide for the budget of a religious
institution being prepared under the supervision of the
Commissioner or the Area Committee. Under s. 58 of the
Act, the mutawalli has to prepare a budget and send a copy
of it to the Majlis within a specified time and the Majlis,
which has the powers of supervision over him, is authorized
to alter or modify the budget. This power of alteration or
modification is inherent in the power of supervision and
such a provision in s. 58 cannot be said to be unreasonable.
Reliance, however, was placed on a passage in the judgment
of this Court in the case cited above to the effect that if
an Area Committee under cl. 3 of s. 70 of the Madras Hindu
Religious and Charitable Endowments Act, 1951, makes any
addition or alteration in the budget, an appeal against it
lay to the Deputy Commissioner. The passage upon which
reliance is placed is no authority for the proposition that
the provisions of s. 58 of the Act become unreasonable
because there is no provision for an appeal against the
orders of the Majlis. The powers of the Majlis to alter or
modify the budget prepared by the mutawalli are not
unrestricted. Sub-section (6) of s. 58 expressly provides
that nothing contained in the section shall be deemed to
authorize the Majlis to alter or modify any budget in a
manner or to an extent inconsistent with the wishes of the
waqif, so far as such wishes can be ascertained, or the
provisions of the Act. In our opinion, nothing contained in
sub-ss. (2), (3) and (4) of s. 58 amount to unreasonable
restrictions on the exercise of the duties of the mutawalli
as a person administering a waqf. Even if it were to be
assumed that the said provisions amounted to an unreasonable
restriction, sub-ss. (2), (3) and (4) are clearly severable
from sub-ss. (1), (5) and (6) of s. 58. Even if sub-ss.
(2), (3) and 4 were struck down, the mutawalli would still
be under a legal obligation under sub-s. (1) to prepare a
budget and submit a copy thereof to the Majlis within a
specified time and his failure to do so would make him
liable to punishment under s. 65(1).
It was urged that the Sessions Judge erred in placing the
onus on the appellant under s. 65(1) to prove that he had
submitted the copy of the budget within time.
1039
This objection, however, does not require a detailed
consideration because the Sessions Judge clearly stated in
his judgment that apart from the onus, he was satisfied that
the prosecution had fully established on the evidence that
the appellant had failed to send a copy of the budget as
required by law.
It was also pointed out that s. 65 does not provide for any
imprisonment in default of payment of fine, but the
appellant was sentenced to 15 days simple imprisonment in
default of payment of fine. Section 33 of the Code of
Criminal Procedure read with ss. 40 and 67 of the Indian
Penal Code appears to us to be a clear answer to this
contention.
It was also pointed out that under s. 65 of the Act a
sentence of fine extending upto five hundred rupees could be
imposed for a second or for a subsequent offence. We need
not, however, consider that matter in the present appeal as
it was conceded on behalf of the appellant that the sentence
of fine imposed upon him in the present case was for a first
offence.
The appeal is accordingly dismissed.
Appeal dismissed.