Bashiruddin Ashraf vs The State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 39 of 1955

Decision Date: 25 April, 1957

Coram: Syed Jaffer Imam, S.K. Das, P. Govinda Menon, A.K. Sarkar

In the matter of Bashiruddin Ashraf versus the State of Bihar, the Supreme Court rendered its judgment on 25 April 1957. The opinion was authored by Justice Syed Jaffer Imam and was delivered by a bench consisting of Justice Syed Jaffer Imam, Justice S K Das, Justice P Govinda Menon and Justice A K Sarkar. The petitioner, Bashiruddin Ashraf, was opposed by the respondent, the State of Bihar. The case is reported in the All India Reporter at page 645 of the 1957 volume and also appears in the Supreme Court Reports at page 1032 of the 1957 volume. The issues arose under the Bihar Waqfs Act, 1947 (Bihar Act 8 of 1948), specifically sections 58 and 65, and were examined in the light of article 19(1)(g) of the Constitution of India.

The appellant, who acted as mutawalli (manager) of a waqf estate, failed to prepare the required annual budget for the year 1952‑53 and did not forward a copy of that budget to the Majlis before the statutory deadline of 15 January 1952, as mandated by section 58(1) of the Bihar Waqfs Act. Consequently, a magistrate convicted him under section 65(1) of the same Act and sentenced him to pay a fine of one hundred rupees, with a provision that failure to pay the fine would result in fifteen days of simple imprisonment. The appellant contended that the conviction and sentence were invalid for two reasons. First, he argued that section 58 of the Act violated article 19(1)(g) of the Constitution because it gave the Majlis unfettered authority to alter or modify the budget prepared by the mutawalli without providing any right of appeal, thereby imposing an unreasonable restriction on the mutawalli’s occupation. Second, he claimed that section 65 did not authorize imprisonment for default in payment of the fine. The Court held that the position of a mutawalli is comparable to that of a manager or custodian, and that supervisory oversight by the Majlis is essential for the proper administration of waqf property. The Court observed that the power of the Majlis to alter or modify the mutawalli’s budget is limited by subsection (6) of section 58, rendering the restriction reasonable and not in conflict with article 19(1)(g). Accordingly, the provisions of section 58 were held to be constitutionally valid. The Court further relied on the decision in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindya Thirtha Swamiar of Sri Shirur Mutt, reported in 1954 S C R 1005. Regarding the order of imprisonment for default of fine, the Court concluded that such an order was not invalid in view of section 33 of the Code of Criminal Procedure read with sections 40 and 67 of the Indian Penal Code.

The matter was placed before the Court under its criminal appellate jurisdiction as Criminal Appeal No. 39 of 1955. The appeal was entertained by special leave from the judgment and order dated 28 January 1954 of the Patna High Court in Criminal Revision No. 69 of 1954, which itself arose from the judgment and order dated 23 November 1953 of the Sessions Judge, Patna, in Criminal Appeal No. 288 of 1953 against the order dated 27 August 1953 of the Munsif Magistrate of Patna Sadar. The Court’s judgment addressed the legal issues raised, affirmed the validity of the statutory provisions, and upheld the conviction and sentence imposed on the appellant.

The appeal before this Court arose from the order of the Sessions Judge of Patna in Criminal Appeal No 288 of 1953, which had dismissed the judgment and order dated August 27 1953 of the Munsif Magistrate of Patna Sadar. Counsel for the appellant were Murtaza Fazl Ali and R. C. Prasad, while the respondent identified as No 1 was represented by S. P. Varma. The judgment was delivered on April 25 1957 by Justice Imam J.

The appellant had been removed from his office as mutawalli of the Gholam Yahia Waqf Estate on September 1 1951 by an order of the Majlis constituted under the Bihar Waqfs Act, 1947 (Bihar Act 8 of 1948). Exercising the right granted by the Act, he filed an appeal before the District Judge of Monghyr; that judge stayed the operation of the removal order pending a hearing of the appeal. Subsequently, on July 1 1952, a complaint was lodged in the Court of the Sadar Sub‑Divisional Magistrate, Patna, by Mahommad Sual, who was the Nazir of the Majlis acting on the direction of its Sadar. The complaint alleged that the appellant, as mutawalli, was obligated by section 58(1) of the Act to prepare a budget of the waqf estate for the financial year 1952‑53 and to forward a copy to the Majlis before January 15 1952, and that he had deliberately failed to fulfil this duty. Because the Majlis’s office where the budget was to be filed lay in Patna, it fell within the local jurisdiction of the Magistrate hearing the complaint.

The appellant was therefore tried before a Munsif Magistrate possessing First‑Class powers. He was convicted under section 65(1) of the Act and was ordered to pay a fine of one hundred rupees, with the provision that, in default of payment, he would suffer fifteen days of simple imprisonment. The appellant appealed the conviction to the Sessions Judge of Patna, who dismissed the appeal. An application for revision under the criminal revisional jurisdiction of the Patna High Court was also rejected. The appellant subsequently obtained special leave to challenge the High Court’s order before this Court.

The record established that the appellant indeed failed to prepare the required budget of estimated income and expenditure of the waqf estate and failed to forward a copy to the Majlis before the prescribed date of January 15 1952. The sole issue for determination, therefore, was whether such a failure to comply with the mandate of section 58(1) of the Act rendered the appellant liable to punishment under section 65(1). For clarity, the Court set out the relevant statutory provision, section 58, which provides: “(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.”

Section 58 of the Act sets out a procedure for preparing and approving the annual budget of a waqf. Under subsection (2), the Majlis is authorized to receive the budget prepared by the mutawalli and, within six weeks of receipt, to alter or modify that budget in any manner and to any extent that it deems appropriate. Subsection (3) then obliges the Majlis, if it makes any alteration or modification under subsection (2), to send a copy of the altered budget immediately to the mutawalli of the concerned waqf, and the altered document is to be regarded as the official budget of that waqf. Subsection (4) provides a default rule: if the Majlis does not forward the altered or modified budget to the mutawalli within the period prescribed in subsection (3) and an additional two‑week grace period, the Majlis is deemed to have approved the original budget without any changes. Subsection (5) addresses the situation where the mutawalli fails to prepare and transmit a copy of the budget as required by subsection (1); in such an event, the Majlis is empowered to prepare a budget for the waqf, and that budget is to be treated as the official budget for the applicable year. Finally, subsection (6) clarifies that nothing in this section may be interpreted as giving the Majlis authority to alter or modify any budget in a way that contradicts the wishes of the waqif, insofar as those wishes can be determined, or that is inconsistent with the other provisions of the Act.

Section 65 of the Act creates a penal consequence for a mutawalli who fails to comply with certain statutory duties, including the duty imposed by subsection (1) of section 58. Subsection (1) of section 65 states that if a mutawalli, without a reasonable cause which he must prove, fails to obey any order or direction issued under clauses (i), (o) or (q) of subsection (2) of section 27, or under section 56, or if he fails to comply with the provisions of subsection (1) of section 57, subsection (1) of section 58, section 59 or section 60, or if he fails to furnish any required statement, annual account, estimate, explanation, or any other document or information relating to the waqf, he shall be liable to a fine. The fine may be up to two hundred rupees for the first offence and up to five hundred rupees for a second or subsequent offence. It follows from subsection (1) of section 58 that each year, before the fifteenth day of January, the mutawalli of every waqf must prepare a budget for the following financial year and must promptly send a copy of that budget to the Majlis. Consequently, under the penalty provision of section 65(1), a failure by the mutawalli to fulfil this budgeting duty renders him punishable by the prescribed fine. The appellant’s counsel argued that section 58 is void because it allegedly grants the Majlis unrestricted authority to alter or modify the mutawalli’s budget without any right of appeal, thereby imposing an unreasonable restriction on the mutawalli’s occupation and violating Article 19(1)(g) of the Constitution.

In this case, the appellant argued that section 58 of the Act allowed the Majlis to change or amend the budget prepared by the mutawalli without providing any right of appeal against such alteration, thereby imposing an unreasonable restriction on the mutawalli’s ability to carry out his occupation. The appellant further contended that this restriction violated Article 19(1)(g) of the Constitution. The Court noted, however, that the Act was enacted with the purpose of providing better administration of waqfs in the State of Bihar, as stated in its preamble. Section 5 of the Act creates two corporate bodies, each called a Majlis, the first to discharge functions relating to Sunni waqfs and the second to discharge functions relating to Shia waqfs. Under section 27, the general superintendence of all waqfs in the State is vested in the Majlis, which is authorised to take all reasonable and necessary steps to ensure that waqfs are properly supervised and administered, that their income is duly appropriated and applied to the objects and purposes of the waqfs, and that those objects and purposes are identified. Sub‑section (2) of section 27 enumerates a number of powers and duties of the Majlis, including, inter alia, the power to remove a mutawalli from his office under specified conditions. The Court observed that the list of powers in this sub‑section makes clear that the mutawalli is subordinate to, and under the control of, the Majlis. Moreover, section 47 empowers the Majlis to make an application to the District Judge for an order, among other things, for the removal of the mutawalli. Chapter X of the Act deals with mutawallis and their duties, and section 56 expressly requires every mutawalli to comply with any directions issued from time to time by the Majlis under any provision of the Act. The Court then referred to the earlier legislation, the Muslim Wakf Act (Central Act XLII of 1923), which was enacted to improve the management of waqf property and to ensure proper keeping and publication of accounts relating to such property. That Act applied to all waqfs except those covered by section 3 of the Muslim Wakf Validating Act, 1913. Relevant provisions of the 1923 Act were noted: section 3 required furnishing particulars relating to a waqf to a Court, meaning a District Judge or, within the limits of ordinary original civil jurisdiction, a subordinate court designated by the State Government in the Official Gazette; section 5 required the mutawalli, within three months after the thirty‑first day of March following the furnishing of the statement under section 3, and thereafter each year within three months of the thirty‑first day of March, to prepare and submit to the Court a full and true statement of all moneys received or expended on behalf of the waqf during the twelve‑month period ending on that March 31st. The Court therefore considered the historical context and the statutory scheme to assess the validity of the appellant’s constitutional challenge.

In this case, the Court observed that Section 5 of the Mussalman Wakf Act required the mutawalli to furnish, within three months after the thirty‑first day of March each year, a full and true statement of the accounts of all moneys received or expended by him on behalf of the waqf for which he acted as mutawalli during the twelve‑month period ending on that March thirty‑first day. The Court further noted that Section 10 prescribed a monetary penalty for any mutawalli who failed to comply with the provisions of Section 3 or Section 4; a first offence could attract a fine of up to five hundred rupees, while a second or subsequent offence could attract a fine of up to two thousand rupees. The Court stated that the clear purpose of both the Act and the Mussalman Wakf Act was to ensure proper administration of waqfs and that the income of a waqf was applied to the objectives for which the waqf had been founded. Recognising that the mutawalli functioned as a manager or custodian, the Court held that some degree of control or supervision by the Majlis over the mutawalli with respect to proper administration of the waqf property and appropriate use of funds was necessary. Accordingly, the Court expressed the opinion that the provisions of Section 58 of the Act, which imposed reasonable restrictions on the mutawalli’s duties, did not offend any constitutional provision. Citing the decision in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Court reiterated that a budget was indispensable for all public institutions and that it was not per se unreasonable to require a religious institution’s budget to be prepared under the supervision of the Commissioner or the Area Committee. Under Section 58, the mutawalli was required to prepare a budget and forward a copy to the Majlis within a prescribed time, and the Majlis, possessing supervisory powers, was empowered to alter or modify that budget. The Court held that such power of alteration or modification was inherent in the supervisory function and therefore could not be characterised as unreasonable. Although counsel relied on a passage from the earlier case suggesting that an appeal against an Area Committee’s alteration of a budget lay with the Deputy Commissioner, the Court found that passage did not support the argument that the absence of an appeal mechanism made Section 58 unreasonable. The Court emphasized that the Majlis’s authority to alter or modify the budget was not unlimited, as Sub‑section (6) of Section 58 expressly limited the Majlis from altering or modifying any budget in a manner inconsistent with the wishes of the waqif, as far as those wishes could be ascertained, or with the provisions of the Act.

The Court observed that a mutawalli may not act in a way or to an extent that contradicts the wishes of the waqif, insofar as those wishes can be determined, or that violates the provisions of the Act. It held that none of the provisions contained in sub‑sections (2), (3) and (4) of section 58 constituted unreasonable restrictions on the performance of the mutawalli’s duties as the manager of a waqf. Even assuming, for the sake of argument, that those provisions did impose an unreasonable restriction, the Court found that sub‑sections (2), (3) and (4) were clearly severable from sub‑sections (1), (5) and (6) of the same section. Consequently, even if sub‑sections (2), (3) and (4) were to be struck down, the mutawalli would nevertheless remain legally bound by sub‑section (1) to prepare a budget and to forward a copy of that budget to the Majlis within the time prescribed, and a failure to comply with this duty would render him liable to punishment under section 65(1). The appellant contended that the Sessions Judge had erred by placing on the appellant, under section 65(1), the burden of proving that he had submitted the budget copy within the stipulated period. The Court said that this objection did not warrant detailed analysis because the Sessions Judge had expressly recorded in his judgment that, aside from the issue of burden, he was satisfied that the prosecution had, on the basis of the evidence, fully established that the appellant had failed to send the required copy of the budget. The Court also noted that section 65 did not provide for any term of imprisonment in the event of non‑payment of a fine, yet the appellant had been sentenced to fifteen days of simple imprisonment for default of fine payment. The Court explained that the answer to this contention lay in section 33 of the Code of Criminal Procedure read together with sections 40 and 67 of the Indian Penal Code. Additionally, the Court recognized that section 65 of the Act permitted the imposition of a fine of up to five hundred rupees for a second or subsequent offence, but it held that this point needed not be examined in the present appeal because it was conceded on behalf of the appellant that the fine imposed was for a first offence. Accordingly, the Court dismissed the appeal.