Syed Bashiruddin Ashraf Vs. Bihar
Subai Sunni Majlis-E-Awqaf & Ors [1964] INSC 268 (23 November 1964)
23/11/1964 HIDAYATULLAH, M.
HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION: 1965 AIR 1206 1965 SCR (2) 205
ACT:
Practice--Allegation that High Court did not
consider points argued--Propriety and proper procedure.
Bihar Waqfs Act (8 of 1948), s. 27(2) (h) as
amended by Bihar Waqfs (Amendment) Act (18 of 1951) and ss. 37 and 38--Scope
of.
HEADNOTE:
Allegations of mismanagement and
misappropriation were made against the appellant who was the Mutawalli of
certain Waqf properties governed by the Bihar Waqfs Act, 1948. The allegations
were investigated by the Nazir-e-Awqaf, appointed under s. 22 of the Act and the
charges were held proved. The report of the Nazir was accepted by the Sadr
(chairman) of the Bihar Subai Sunni Majlis-E-Awqaf (or Majlis) which was
supervising the waqf under the Act. After the accounts were checked, the Sadr
ordered the appellant to deposit the amount found due from him. The Act was
then amended on 24th May 1951, by Act 18 of 1951, by which the removal of a
Mutawalli on the ground that he had wilfully disobeyed the orders and direction
of the Majlis under the Act, could be made by the Majlis itself without the
intervention of the District Judge. When the appellant failed to deposit the
amount as ordered, the Sadr passed an order removing him from office and
appointed another Mutawalli for one year. The appellant made an application to the
District Judge, under s. 27(3) of the Act for setting aside the order. The
application was dismissed, but the order appointing the temporary Mutawalli was
also set aside.
Both the appellant and the temporary
Mutawalli appealed to the High Court. The High Court dismissed the appeal filed
by the appellant and allowed the other appeal. In the appeal to the Supreme
Court, it was contended by the appellant that, (i) a number of arguments
brought to the notice of the High Court were not considered by the Court, (ii)
under s. 27 (2) (h) be could be removed from office only for disobedience of
orders and directions of the Majlis given after the Amending Act came into
force and not in respect of orders and directions issued previously.
HELD : (i) This Court will not allow an
argument to be raised on the allegation that the High Court omitted to consider
the argument when raised in the High Court. The High Court is a Court of Record
and unless an omission is admitted or is demonstrably proved, this Court will
not consider an allegation that there is an omission. If any material point
does not come under scrutiny, the fact should be brought to the notice of the
High Court before judgment is signed and an order of the High Court on such
submission obtained before the point is raised in appeal. [209 D-F] The growing
practice of making such allegations against the High Court. deprecated. [209 D]
(ii)The amendment no doubt conferred jurisdiction upon the Majlis to act
prospectively from the date of the amendment but the power under the amendment
could be exercised in respect of orders and directions of the Majlis issued by
the Majlis and disobeyed by the Mutawalli before the coming into force of the
amendment To hold otherwise would mean 206 that in respect of the past conduct
neither the Majlis nor the District Judge possessed jurisdiction after
amendment.
A statute is not necessarily used
retrospectively when the power conferred by it, is based on conduct anterior to
its enactment, if it is clearly intended that the said power must reach back to
that conduct. No vested right was being taken away, because there could be no
vested right to continue as Mutawalli after mismanagement and misconduct of
many sorts were established. [211 C-D, E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 739 of 1963.
Appeal from the judgment and decree order
dated December 1960 of the Patna High Court in Misc. Appeals Nos. 688 of 1958
of 1959 and Civil Revision No. 1153 of 1958.
Tarkeshwar Dayal and K. K. Sinha, for the
appellant.
Sarjoo Prasad and U. P. Singh, for the
respondents.
The Judgment of the Court was delivered by
Hidayatullah, J. The appellant Bashiruddin Ashraf was Mutwalli of certain Waqf
properties in Monghyr District, dedicated by one Sheikh Golam Yahya by a
registered Waqfnama dated April 11, 1870. Under this deed Mutwallis were chosen
from the descendants in the male line of the Waqif from generation to
generation. The first Mutwalli was the Waqif.
After his death, his wife held charge of the
Toliat. After her death the appellant's father and from 1930 the appellant were
Mutwallis. The Mutwalli in-charge was entitled to 9/48th share of the income as
his remuneration. On April 1, 1948, the Bihar Waqfs Act, 1947 (Act 8 of 1948)
came into force and this Waqf came under the purview of that Act and was
registered as Waqf No. 67. Under the scheme of the Act the Bihar Subai Sunni
Majlis-e-Awqaf (shortly Majlis) began supervising this Waqf. At all material
times one Syed Bashiruddin was the Sadr (Chairman) of the Majlis and Syed Mehdi
Hassan was the Nazir-e-Awqaf under S. 22.
On March 2, 1949 Syed Naziruddin Ashraf
(step-brother of the appellant) and some others presented an application for
removal of the appellant from Mutwalliship on. numerous charges, including
mismanagement, misappropriation, wanton waste and dissipation of Waqf property,
falsification of accounts, etc. This was registered as Case No. 37 of 1949.
An enquiry was made by Mehadi Hassan, who
reported on May 25, 1950 to the Majlis that the charges levelled against the
appellant were proved. His report was considered by the Majlis at its meeting
dated August 20, 1950 and a notice was issued to the appellant to show cause
why he 207 should not be removed. He showed cause. The Nazir was directed to
submit a second report which he did on October 15, 1950. The appellant was then
examined and on November 28, 1950 the Sadr passed an order agreeing with the
report of the Nazir and confirming the findings given by the Nazir regarding
mis-management etc. An auditor was appointed to check the accounts and he
reported on February 8, 1951 that a sum of Rs. 9682/1/3 was due from the
appellant to the Waqf estate. The Sadr ordered the appellant to deposit this
amount in a recognised bank on or before April 2, 1951.
When the appellant failed to deposit the
amount, the Sadr passed an order on June 28, 1951 removing him from the office
and appointed in his place a pleader (Maulvi Mohammad Shoeb) as Mutwalli for a
period of one year under s. 32 of the Act and directed him to take charge of
the property of the Waqf from the appellant.
The appellant then made an application to the
District Judge under s. 27(3) of the Bihar Waqfs Act for setting aside the
order of the Sadr and the proceedings were registered as Miscellaneous Case No.
30/4 of 1951. The order of the Sadr was, assailed on several grounds, some of
fact and others of law. By the petition the appellant also asked for the
removal of Maulvi Md. Shoeb from Mutwalliship. The present appeal arises from
the order passed by the Additional District Judge, Monghyr and the judgment of
the High Court dated December 21, 1960 on appeals from that order.
In the proceedings before the District Judge
four issues were settled on the pleadings of the appellant and the pleadings in
reply. They were:
(i) Whether the Majlis or the Sadr was
competent and had jurisdiction to direct the Mutwalli to produce the accounts
of the Waqf estate, hold enquiries and pass orders on the basis of such
enquiries for a period prior to the enforcement of the Act ? (ii) Whether the
Majlis or the Sadr was competent and had jurisdiction to pass the order of
removal of the applicant from the office of the Mutwalli on the grounds
mentioned in the order dated 28-6-1951 ? (iii) Whether the Majlis or the Sadr
was competent and had jurisdiction to appoint Maulvi Mohammad Shoeb as a
temporary Mutwalli ? (iv) Whether sections 27 and 32 of the Act are ultra vires
of the Constitution of India ? 208 The Additional District Judge, Monghyr
decided all the issue.% except the 3rd, against the appellant. On the first two
issues he held that the Sadr was competent to pass the order of removal on the
basis of disobedience of orders passed prior to the coming into force of the
amending Act.
The fourth issue was not pressed in that form
but a new point analogous to the first issue was raised to which we shall refer
presently. The order appointing the temporary Mutwalli questioned in the third
issue was held to be without jurisdiction on the ground that it had to be
ratified by the District Judge under s. 32 and the appointment was vacated. The
.new point was that s. 27 (2) (h) (iii) added by the amending Act, 1951, was
not retrospective and could only operate from June 6, 1951, which was stated to
be the date from which the amending Act came into force, and that the power of
the Majlis could only be exercised in respect of events happening subsequent to
that date. This contention of the appellant was rejected.
Two appeals were filed against the order of
the Additional District Judge by the appellant and Maulvi Md. Shoeb
respectively. A revision application was also filed on behalf of the Majlis and
Maulvi Md. Shoeb as a, matter of abundant caution. The appellant had raised in
the High Court as many as 41 grounds : the first five grounds raised the
contention that the powers conferred on the Majlis, which formerly belonged to
the District Judge, could only operate from June 6, 1951 and as no order or
direction of the Majlis was disobeyed after June 6, 1951, the order passed on
June 28, 1951 on the old material was illegal and void. Grounds 23 and 29 (a)
to (f) raised the contention that ss. 27, 55, 56, 57, 59 and 60 of the Bihar
Act 8 of 1948 were void as offending the fundamental rights of appellant under
Articles 19, 25, 26 and 31 of the Constitution. The remaining grounds dealt
with the jurisdiction to order the enquiry to be held by the Nazir and the
merits of the order of the Sadr in relation to the evidence. By these grounds
the appellant contended that the order of the Sadr was actuated by bias,
prejudice and malafides and was erroneous, perverse and illegal. The order of
the Additional District Judge was also characterised as perverse, erroneous and
illegal.
The two appeals were heard together. The High
Court by a common judgment delivered on December 21, 1960, dismissed the appeal
of the appellant and accepted that of Maulvi Md.
Shoeb. In dealing with the appeal of Maulvi
Md. Shoeb the High Court pointed out that s. 32 of the Act was clear in
conferring jurisdiction on the Majlis to make temporary appointment when there
was a vacancy in the office of the Mutwalli and that the words in that 209
section "subject to any order by the competent court" did not mean
that there had to be either prior permission or subsequent assent before the
appointment was complete. The High Court rightly pointed out that those words
denoted that the appointment was to endure according to its tenor till an order
to the contrary was passed by a competent court. This conclusion is so patently
correct that we need say nothing more than this.
On merits of the removal of the appellant the
High Court endorsed the view of the Additional District Judge. The learned
Advocate raised the contention before us that a number of his arguments on
facts brought to the notice of the Hon'ble Judges were not considered and in
the application for leave to appeal to this Court he had mentioned those
contentions as ground No. 31 (a) to (p). We did not permit the learned counsel
to raise these grounds and we may say here that we deprecate the growing
practice of making such allegations against the High Courts. The judgment here
is fairly long and considered and it appears to take note of arguments on
questions of fact and law. It is not necessary that the judgment should record
and repel each individual argument however hollow. If any material point does
not come under scrutiny the fact should be brought to the notice of the High
Court before the judgment is signed and an order of the High Court on such
submission obtained before it is raised in appeal. This Court will ordinarily
regard the details of the argument given in the judgment of the High Court as
correct and will not enter upon an enquiry as to what was or was not argued
there. To permit points to be mooted on the plea that they were raised before
the High Court but were not considered by it would open the door to endless
litigation and this would be destructive of the finality which must attach to
the decision of the High Court on matters of fact. The High Court is a Court of
Record and unless an omission is admitted or is demonstrably proved this Court
will not consider an allegation that there is an omission. The truth of the
allegations against the appellant was investigated by the Nazir and the charges
were held proved. The report of the Nazir was accepted by the Sadr, the
Additional District Judge and the High Court. The appellant has had a very fair
trial and it is plain that the appellant cannot be allowed to have the whole
issue debated again because he has thought out fresh arguments.
This disposes of all questions of fact and we
now proceed to consider arguments relating to law which were mainly concerned
with the jurisdiction of the Majlis and/or the Sadr to pass the 210 order of
removal. It may be pointed out here that at the suit of the present appellant,
s. 58 of the Bihar Waqfs Act, 1947 was previously challenged as ultra vires the
Constitution. This Court by its judgment in Bashiruddin Ashraf v. State of
Bihar('.) held the section to be valid.
The appellant was already removed from his
office of Mutwalli when he raised that contention in a criminal matter arising
under s. 65(1) of the Bihar Waqfs Act for disobeying orders and directions made
to him by the Majlis. At that time the appellant did not question the validity of
any other section of the Act; nor did he describe any other section as
offending his fundamental rights. Though he raised the questions of his
fundamental rights the provisions of the Waqfs Act are so manifestly in the
public interest that the appellant did not challenge the Act as such. The only
sections which he challenged before the Additional District Judge were ss. 27
and 32 of the Act. In the. High Court some other sections were also challenged,
but at the hearing before us the attack was confined to s.
27 and the powers of the Sadr to act for the
Majlis under s. 32 of the Act. These cannot be said to be unconstitutional in
any way and the action has thus been placed before us as falling outside these
sections or not supported by them.
Section 27 of the Bihar Waqfs Act enumerates
the powers and duties of the Majlis. It is divided into three sub- sections. By
the first sub-section the general superintendence of all Waqfs is vested in the
Majlis and it is granted power to do all things reasonable and necessary to
ensure that the waqfs are properly supervised and administered and their income
is duly appropriated and applied to the objects of such waqfs. Sub-section (2)
then by way of illustration, and without prejudice to the generality of the
provisions of the first sub-section, enumerates particular powers and duties of
the Majlis.
Clause (h) of this sub-section enables the
Majlis "to remove a Mutwalli from his office if such Mutwalli refuses to
act or wilfully disobeys the orders and direction of the Majlis under this
Act." The italicised words were inserted by s. 2 of the Bihar Waqfs
(Amendment) Act, 1951 (Bihar Act 18 of 1951) from May 24, 1951 on which date
the amending Act received the assent of the Governor of Bihar. Previously these
words (omitting "orders and") were included as sub-cl.
(iv) of cl. (a) of sub-s. (1) of s. 47 as
part of the grounds on which the District Judge possessed the power to remove a
Mutwalli on the application of the Majlis. In other words, the removal of the
Mutwalli on the ground that he had wilfully dis- (1) [1957] S.C.R. 1032 211
obeyed the orders and directions of the Majlis under the Act could be made,
after amendment, by the Majlis itself without the intervention of the District
Judge. After the amendment them District Judge ceased to possess this power.
The contention of the appellant was that as
this amendment was not retrospective the power could only be exercised in
respect of orders and directions of the Majlis given after the date on which
amended Act came into force and not in respect of orders and directions issued
previously.
According to him, the amending Act is being
given retrospective operation which is not permissible. We do not see any force
in these contentions. The amendment, no doubt, conferred jurisdiction upon the
Majlis to act prospectively from the date of the amendment but the power under
the amendment could be exercised in respect of orders and directions issued by
the Majlis and disobeyed by the Mutwalli before the amendment came into force.
To hold otherwise would mean that in respect of the past conduct of the
Mutwalli neither the Majlis nor the District Judge possessed jurisdiction after
the amendment came into force.
This could hardly have been intended. The
enquiry had already commenced before the Majlis and it would have reported to
the District Judge for removal of the appellant but this was unnecessary
because the Majlis itself was competent to act. A statute is not necessarily
used retros- pectively when the power conferred by it is based on conduct
anterior to its enactment, if it is clearly intended that the said power must
reach back to that conduct. It would be another matter if there was a vested
right which was taken away but there could be no vested right to continue as
Mutwalli after mismanagement and misconduct of many- sorts were established.
The Act contemplates that such a Mutwalli should be removed from his office and
that is what is important. This argument was rightly rejected by the High Court
and the court below.
It was also contended that the clause, as it
stood in s. 47 prior to the amendment mentioned 'directions' but not 'orders'
and the breach of 'orders' before the amendment could not lead to the exercise
of the new power by the Majlis after the amendment. The argument is not only
new but is also utterly wrong. Orders and directions express the binding wish
of the Majlis and the two words only differ in degree. An order is more
peremptory than a direction and an argument can never be right which suggests
that while disobedience of a direction should merit the punishment of removal,
disobedience of an order should go unpunished.
212 Lastly, it was contended that the powers
of removal conferred on the Majlis could not be exercised by the Sadr when the
matter was already before the Majlis. Sections 37 and 38 provide "37.
Exercise by Sadr of powers of Majlis.
If any necessity arises for immediate action
by the Majlis, and a meeting of the Majlis cannot be arranged in time to take
such action, the Sadr may exercise any power that ,could be exercised under
this Act by the Majlis, but shall at the next meeting of the Majlis make a
report in writing of the action taken by him under this section and the reasons
for taking such action." "38. Delegation of powers of Majlis. The
Majlis may delegate any of its powers and duties under this Act to the Sadr, to
be exercised and performed in such special circumstances as the Majlis may
specify, and may likewise withdraw any such delegation." There is nothing
to show that the powers of the Majlis were not delegated. But even if s. 3 8
did not apply it would appear from s. 37 that the Sadr possessed all the powers
of, the Majlis in an emergency and the High Court and the Additional District
Judge have concurrently held that it was necessary to remove forthwith the
appellant and to take away from him the property of the Waqf, particularly when
he disobeyed the order of the Majlis and ,did not deposit the amount which the
auditor found was due to the Waqf. The order of the Sadr was reported to the
Majlis and the Majlis also approved of it. This is hardly a ground which can be
considered in this Court.
The appeal is devoid of merit. It fails and
is dismissed with costs.
Appeal dismissed.
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