Syed Bashiruddin Ashraf vs Bihar Subai Sunni Majlis-E-Awqaf

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 739 of 1963

Decision Date: 23 November 1964

Coram: M. Hidayatullah, P.B. Gajendragadkar, J.C. Shah, S.M. Sikri, R.S. Bachawat

In this matter, the Supreme Court of India heard an appeal filed by Syed Bashiruddin Ashraf against the Bihar Subai Sunni Majlis‑E‑Awqaf and other respondents. The judgment was delivered on 23 November 1964. The bench comprised Chief Justice M. Hidayatullah, and Justices P. B. Gajendragadkar, J. C. Shah, S. M. Sikri and R. S. Bachawat. The petition was recorded as a challenge by the petitioner, Syed Bashiruddin Ashraf, to the orders of the respondents. The case citation appears as 1965 AIR 1206 and 1965 SCR (2) 205. The legal issue centered on whether the High Court had failed to consider certain arguments raised by the petitioner, and whether the amendment to the Bihar Waqfs Act affected the power to remove a Mutawalli for disobeying directions issued before the amendment. The applicable statutory provisions included Section 27(2)(h) of the Bihar Waqfs Act (8 of 1948) as amended by the Bihar Waqfs (Amendment) Act (18 of 1951), together with Sections 37 and 38 of the same Act.

According to the headnote, the petitioner, who served as the Mutawalli of several waqf properties governed by the Bihar Waqfs Act 1948, faced allegations of mismanagement and misappropriation. The allegations were investigated by a Nazir‑e‑Awqaf appointed under Section 22 of the Act, and the investigation concluded that the charges were proved. The report prepared by the Nazir was accepted by the Sadr, the chairman of the Bihar Subai Sunni Majlis‑E‑Awqaf, which supervised the waqf. After reviewing the accounts, the Sadr ordered the petitioner to deposit the sum that was found to be due. Subsequently, on 24 May 1951, the Bihar Waqfs (Amendment) Act 18 of 1951 was enacted, which provided that a Mutawalli could be removed for wilful disobedience of the Majlis’s orders and directions without the intervention of the District Judge. When the petitioner failed to comply with the Sadr’s order to deposit the amount, the Sadr issued an order removing him from his position and appointed another Mutawalli for a period of one year. The petitioner then applied to the District Judge under Section 27(3) of the Act, seeking to set aside the removal order. The District Judge dismissed the petition but also set aside the order appointing the temporary Mutawalli. Both the petitioner and the temporary Mutawalli subsequently appealed to the High Court. The High Court dismissed the petitioner’s appeal and allowed the appeal of the temporary Mutawalli. In the Supreme Court appeal, the petitioner argued that (i) several arguments presented to the High Court had not been considered, and (ii) under Section 27(2)(h) the removal power could be exercised only for disobedience of orders issued after the amendment, not for orders issued earlier. The Supreme Court held that it would not entertain an argument based solely on an alleged omission by the High Court. The Court noted that the High Court is a Court of Record and that an alleged omission must be either admitted by the High Court or demonstrably proved. Without such admission or proof, the Supreme Court would not consider the allegation of omission. The Court further observed that if any material point was not brought to the High Court’s attention before the judgment was signed, the proper procedure would require that point to be raised before the High Court and an order obtained prior to the appeal.

The Court explained that when a matter is under scrutiny, any fact that may affect the decision must be brought before the High Court before its judgment is signed, and an order on that submission must be obtained prior to raising the issue on appeal. The Court observed that the increasing tendency to make allegations against the High Court was now regarded as unfavourable. The Court then considered the effect of the amendment, noting that the amendment clearly gave the Majlis authority to act from the date the amendment became effective. However, that authority could also be applied to orders and directions previously issued by the Majlis that had been disobeyed by the Mutawalli before the amendment came into force. To hold that the amendment applied only prospectively would imply that, regarding past conduct, neither the Majlis nor the District Judge would have any jurisdiction after the amendment. The Court further stated that a statute need not be applied retrospectively unless the purpose of the statute is to reach back to earlier conduct. In the present case, no vested right was being withdrawn, because once mismanagement and various misconducts were established, there could be no vested right for the Mutawalli to continue in office.

The judgment recorded that this was a civil appeal filed under civil appellate jurisdiction, identified as Civil Appeal No. 739 of 1963. The appeal arose from the judgment and decree order dated December 1960 of the Patna High Court in Miscellaneous Appeals Nos. 688 of 1958 and 1959 and Civil Revision No. 1153 of 1958. Counsel for the appellant were Tarkeshwar Dayal and K. K. Sinha, while the respondents were represented by Sarjoo Prasad and U. P. Singh. The judgment was delivered by Justice Hidayatullah. The appellant, Bashiruddin Ashraf, was the Mutawalli of certain Waqf properties situated in Monghyr District, which had been dedicated by Sheikh Golam Yahya through a registered Waqfnama dated 11 April 1870. According to that deed, the Mutawalli was to be selected from male descendants of the original Waqif in each generation. The first Mutawalli was the Waqif himself; after his death his wife managed the estate, and after her death the appellant’s father and, from 1930, the appellant himself assumed the Mutawalli role. The Mutawalli’s remuneration consisted of a share equal to nine‑forty‑eighths of the income. The Bihar Waqfs Act, 1947 (Act 8 of 1948) came into force on 1 April 1948, bringing this Waqf within its scope and resulting in its registration as Waqf No. 67. Under the Act, the Bihar Subai Sunni Majlis‑e‑Awqaf (the Majlis) began supervising the Waqf. At all relevant times, Syed Bashiruddin served as the Sadr (Chairman) of the Majlis and Syed Mehdi Hassan held the position of Nazir‑e‑Awqaf under section 22. On 2 March 1949, Syed Naziruddin Ashraf, the appellant’s step‑brother, together with others, filed an application seeking the removal of the appellant from the Mutawalli office on numerous grounds, including mismanagement, misappropriation, waste and dissipation of Waqf property, and falsification of accounts. This application was recorded as Case No. 37 of 1949, and an enquiry was conducted by Mehadi Hassan, who submitted a report on 25 May 1950 to the Majlis regarding the charges.

The report of the Nazir, submitted on May 25 1950, concluded that the charges against the appellant were proved. That report was examined by the Majlis at its meeting held on August 20 1950, after which a notice was issued to the appellant requiring him to show cause why he should not be removed from the Mutwalli post. The appellant responded to the notice and presented his cause. Subsequently the Nazir was instructed to prepare a second report, which he submitted on October 15 1950. After the second report, the appellant was examined, and on November 28 1950 the Sadr issued an order accepting the Nazir’s findings and confirming that the appellant had mis‑managed the Waqf, misappropriated its income and committed other irregularities. An auditor was then appointed to examine the accounts and, on February 8 1951, the auditor reported that the appellant owed the Waqf estate a sum of Rs 9,682 ½ 3. Following that audit, the Sadr directed the appellant to deposit the said amount in a recognised bank on or before April 2 1951. The appellant failed to make the stipulated deposit, and consequently the Sadr issued, on June 28 1951, an order removing the appellant from the Mutwalli office. The Sadr also appointed a pleader, Maulvi Mohammad Shoeb, as the temporary Mutwalli for a period of one year under section 32 of the Bihar Waqfs Act, and ordered him to take charge of the Waqf property from the appellant. The appellant then filed an application before the District Judge under section 27(3) of the Bihar Waqfs Act seeking to set aside the Sadr’s order; this application was entered as Miscellaneous Case No. 30/4 of 1951. The appellant challenged the Sadr’s order on several grounds, both factual and legal, and also prayed for the removal of Maulvi Mohammad Shoeb from the temporary Mutwalli position. The present appeal stems from the order of the Additional District Judge, Monghyr, and from the High Court judgment dated December 21 1960 on appeals against that order. Before the District Judge, four issues were finally decided on the pleadings of the appellant and the respondent’s pleadings in reply: (i) whether the Majlis or the Sadr possessed the competence and jurisdiction to direct the Mutwalli to produce the Waqf accounts, to hold enquiries and to pass orders based on those enquiries for a period preceding the coming into force of the Act; (ii) whether the Majlis or the Sadr had the competence and jurisdiction to pass the removal order dated June 28 1951 on the grounds specified in that order; (iii) whether the Majlis or the Sadr had the competence and jurisdiction to appoint Maulvi Mohammad Shoeb as a temporary Mutwalli; and (iv) whether sections 27 and 32 of the Act were ultra vires the Constitution of India. The Additional District Judge, Monghyr, ruled on all the issues except the third, and decided against the appellant on the remaining matters. Regarding the first two issues, he held that the Sadr was competent to issue the removal order on the basis of the appellant’s disobedience of orders that had been made prior to the enactment of the amending Act. The fourth issue was

In the proceeding, the question that had been presented in the original form was not pursued, but a new point that was analogous to the first issue was subsequently raised and would be addressed later. The order that had appointed a temporary Mutwalli, which was the subject of the third issue, had been declared to be without jurisdiction because the appointment required ratification by the District Judge under section 32, and consequently the appointment was set aside. A further point asserted by the appellant was that clause 27(2)(h)(iii), which had been inserted by the amending Act of 1951, was not retrospective; it could operate only from 6 June 1951, the date on which the amending Act was stated to have come into force, and that the authority of the Majlis could be exercised only with respect to events occurring after that date. The Court rejected this contention. Two separate appeals were lodged against the order of the Additional District Judge, one by the appellant and the other by Maulvi Mohammad Shoeb. In addition, a revision application was filed on behalf of the Majlis and Maulvi Mohammad Shoeb as a precautionary measure. The appellant had advanced as many as forty‑one grounds before the High Court. The first five grounds argued that the powers that had previously belonged to the District Judge and were now vested in the Majlis could take effect only from 6 June 1951, and that because no order or direction issued by the Majlis had been disobeyed after that date, the order dated 28 June 1951, which was based on earlier material, was illegal and void. Grounds 23 and 29(a) to (f) contended that sections 27, 55, 56, 57, 59 and 60 of the Bihar Act 8 of 1948 were void for contravening the appellant’s fundamental rights under Articles 19, 25, 26 and 31 of the Constitution. The remaining grounds dealt with the jurisdiction to direct an inquiry to be conducted by the Nazir and with the merits of the Sadr’s order in relation to the evidence. On these grounds the appellant claimed that the Sadr’s order was motivated by bias, prejudice and mal‑afides and was therefore erroneous, perverse and illegal, and similarly characterised the order of the Additional District Judge as perverse, erroneous and illegal. Both appeals were heard together. The High Court, by a common judgment delivered on 21 December 1960, dismissed the appellant’s appeal and allowed the appeal of Maulvi Mohammad Shoeb. While considering Maulvi Shoeb’s appeal, the High Court observed that section 32 of the Act unambiguously conferred jurisdiction on the Majlis to make a temporary appointment whenever a vacancy arose in the office of the Mutwalli, and that the phrase “subject to any order by the competent court” did not imply that prior permission or subsequent assent was required before the appointment could become effective. The Court correctly interpreted those words to mean that the appointment would continue in force until a competent court issued an order to the contrary.

In this case the Court observed that the conclusion reached by the High Court regarding the appellant’s removal was so evidently correct that further elaboration was unnecessary. On the merits, the High Court had adopted the view expressed by the Additional District Judge, and the Court affirmed that endorsement. Counsel for the appellant argued before the Court that several factual arguments he had presented to the High Court judges had been ignored, and he listed those arguments as ground number thirty‑one, sub‑paragraphs a to p, in his application for leave to appeal. The Court declined to allow the appellant to raise those grounds at this stage and expressed disapproval of the increasing tendency to allege that High Courts have failed to consider certain submissions. The judgment rendered by the Court was lengthy and thorough, addressing both factual and legal questions, yet it was not required for the judgment to repulse every individual argument, however insubstantial. The Court explained that if any material point had been omitted from consideration, the appellant should have brought that issue to the attention of the High Court before the judgment was signed and obtained a corresponding order from that Court before raising it on appeal. Generally, the Court would accept the factual findings recorded in the High Court’s judgment as correct and would not inquire into what was or was not argued there. Allowing parties to allege that points were raised before the High Court but not considered would invite endless litigation and would undermine the finality that must accompany the High Court’s determinations on factual matters. Since the High Court is a Court of Record, the Court would not entertain an allegation of omission unless it was admitted or convincingly proved. The allegations against the appellant had been investigated by the Nazir, who found the charges proved; that report had been accepted by the Sadr, the Additional District Judge, and the High Court. The appellant had thus received a fair trial, and the Court held that it could not permit the entire issue to be relitigated merely because the appellant had devised new arguments. Having resolved all factual questions, the Court turned to the legal arguments, which principally concerned whether the Majlis or the Sadr possessed jurisdiction to issue the removal order. The Court noted that, in the appellant’s earlier suit, section fifty‑eight of the Bihar Waqfs Act, 1947, had been challenged as unconstitutional, but the Court’s earlier judgment in Bashiruddin Ashraf v. State of Bihar had upheld the validity of that provision. The appellant had already been removed from his position of Mutwalli when he raised that contention in a criminal proceeding under section sixty‑five, sub‑section one, of the Bihar Waqfs Act for disobeying orders issued by the Majlis.

In the proceedings that were before the Additional District Judge, the appellant had limited his challenge to only two provisions of the Bihar Waqfs Act, namely sections 27 and 32. He did not question the validity of any other provision of the Act, nor did he allege that any other provision infringed his fundamental rights. Although he raised a general concern about his fundamental rights, the Court noted that the provisions of the Waqfs Act were manifestly made in the public interest, and consequently the appellant did not seek to strike down the Act in its entirety. Later, when the matter reached the High Court, additional provisions were raised for consideration, but at the hearing before the Supreme Court the appellant’s arguments were again confined to section 27 and to the authority of the Sadr to act on behalf of the Majlis under section 32. The Court found that none of the challenged provisions could be regarded as unconstitutional, and therefore the question before the Court was whether the action taken fell outside the scope of those sections or was unsupported by them.

Section 27 of the Bihar Waqfs Act set out the powers and duties of the Majlis and was divided into three sub‑sections. The first sub‑section vested the general superintendence of all waqfs in the Majlis and authorized it to take any reasonable and necessary steps to ensure that waqfs were properly supervised, that their administration was sound, and that the income of the waqfs was duly appropriated and applied to the objects for which the waqfs were created. The second sub‑section, without limiting the generality of the first, listed specific powers and duties of the Majlis. Clause (h) of this sub‑section empowered 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 words in quotation marks had been inserted by section 2 of the Bihar Waqfs (Amendment) Act, 1951 (Bihar Act 18 of 1951), which received the Governor’s assent on 24 May 1951. Prior to that amendment, the same language, minus the words “orders and”, had appeared in sub‑clause (iv) of clause (a) of sub‑section (1) of section 47, forming part of the grounds on which a District Judge could remove a Mutwalli on an application made by the Majlis. In effect, after the amendment the Majlis itself acquired the power to remove a Mutwalli for wilful disobedience of its orders and directions, eliminating the need for intervention by a District Judge, who consequently lost that specific removal power. The appellant contended that because the amendment was not intended to operate retrospectively, the Majlis could exercise the removal power only with respect to orders and directions issued after the amendment became effective, and that applying it to earlier orders amounted to an impermissible retroactive operation. The Court, however, found no merit in that contention and concluded that the amendment was not being applied retrospectively in a manner contrary to law.

In addressing the contentions raised, the Court observed that the amendment undeniably granted the Majlis authority to act from the date of its enactment, yet that authority could also be applied to orders and directions that the Majlis had issued and that the Mutwalli had disobeyed before the amendment became effective. To hold that the amendment could not be applied to such prior conduct would imply that, after the amendment took force, neither the Majlis nor the District Judge possessed any jurisdiction over the Mutwalli’s earlier conduct. The Court found that such a result could not have been intended by the legislature. It noted that the inquiry into the Mutwalli’s conduct had already begun before the amendment and that the matter would have been reported to the District Judge for the purpose of removal. However, that step was unnecessary because the Majlis itself now had the competence to act. The Court further explained that a statute need not be applied retrospectively merely because it confers a power based on conduct that occurred before the statute’s enactment, provided the legislation clearly intends the power to reach back to that earlier conduct. The Court distinguished this situation from one in which a vested right is taken away; it held that there was no vested right for the Mutwalli to remain in office after mismanagement and various forms of misconduct had been established. Accordingly, the Act envisions the removal of a Mutwalli who is found unsuitable, and that intention was paramount. The Court affirmed that the High Court and the lower court had correctly rejected the argument that the amendment could not be applied retrospectively. The Court also considered the contention that, before amendment, section 47 referred only to “directions” and not to “orders,” and therefore a breach of an “order” before amendment could not trigger the new power after amendment. It described this argument as both novel and wholly incorrect. The Court explained that both “orders” and “directions” convey the binding will of the Majlis, differing only in degree; an order is more peremptory than a direction. Consequently, it was untenable to suggest that disobeying a direction should justify removal while disobeying an order should not. Finally, the Court addressed the claim that the Majlis’s removal powers could not be exercised by the Sadr when the matter was already pending before the Majlis. It referred to sections 37 and 38, which respectively allow the Sadr to exercise any power of the Majlis in an emergency when a meeting cannot be convened, subject to a written report at the next Majlis meeting, and permit the Majlis to delegate any of its powers to the Sadr in special circumstances and to withdraw such delegation. The Court noted that there was no evidence indicating that the Majlis had not delegated its powers, and therefore the Sadr’s exercise of removal powers was permissible.

In the material before the Court there was no indication that the powers of the Majlis had been withheld from delegation to the Sadr. Even if it were assumed that the provisions of section 38 were inapplicable, the language of section 37 nevertheless indicated that, in an emergency, the Sadr was authorized to exercise the entire suite of powers ordinarily possessed by the Majlis. The factual record showed that both the High Court and the Additional District Judge had, at the same time, concluded that it was necessary to remove the appellant forthwith and to deprive him of any interest in the property of the Waqf. Their conclusion was premised on the appellant’s open defiance of the order issued by the Majlis and on his failure to deposit the amount which the auditor had identified as being due to the Waqf. After the Sadr issued his order, that order was formally reported in writing to the Majlis, and the Majlis thereafter gave its express approval to the order. The Court considered that this sequence of events did not furnish a substantial ground upon which the present Court could intervene. Consequently, the Court held that the appeal was entirely without merit, that it could not be sustained, and that it must be dismissed. The Court further directed that the appellant should bear the costs of the proceedings, and the appeal was consequently dismissed.