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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.

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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

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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

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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

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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.

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The appeal is accordingly dismissed.                                       Appeal dismissed.