23 November 1964
Supreme Court


Case number: Appeal (civil) 739 of 1963






DATE OF JUDGMENT: 23/11/1964


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]

JUDGMENT: 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. 213