Bashiruddin Ashraf Vs. The State of
Bihar  INSC 40 (25 April 1957)
IMAM, SYED JAFFER DAS, SUDHI RANJAN (CJ) DAS,
MENON, P. GOVINDA SARKAR, A.K.
CITATION: 1957 AIR 645 1957 SCR 1032
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).
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
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
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
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)  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
The appeal is accordingly dismissed.