# Flu Member for l/u Board of Agrici.:ltural Income Tax, A.Ham v. Smt. Sindhurani Chaudhurani

- **Citation:** [1957] 1 S.C.R. 1032
- **Court:** Supreme Court of India
- **Decided:** 1954-01-28
- **Case number:** Criminal Appeal No. 39 of 1955
- **Bench:** S. R. Das C.J, Jaf!'Ar Imam, s. K. DAS, Gov!Nda Menon, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/flu-member-for-l-u-board-of-agrici-ltural-income-tax-a-ham-v-smt-sindhurani-1294
- **Pages:** 8

## Headnote

i\!t!tatvalli-A.fajlis,
powers
of-Budgct-Mutatva//i's
fai/u,·e
to prcpart• and send copy to Afaj/is-Coni·ictio'1-Validity-Sentence
of fine, in default imprisonment-Legali:y-l?ihar TVaqfs Act, 1947
(Bi*ar Act 8 of 1948), ss. 58, 65-Con.ctitution
of India, Art.,.
19 (!) (g).
The appellant failed to prepare a bud_gct of the Waqf Estate
of \Yhich he \Vas the mutawalli, for the year 1952-53 and send a
copy of it to the Majlis· before J:-inuary 15, 1952, :is he was hound
to Jo unJt•r s.
58( I)
of the llihar
Waqfs Act,
1947,
ond \•:as
convicted hy the Magistrate under s.
6--5( I)
of the
J\ct
:inJ
stntcncc<l to pay a fine of Rs. iOO, in default to nn(~crgo fifteen
cbyc;
-~iriplc imprisonment.
It was contended for
him that the
con\·iction and sentence \Vere nor \·al id ber:iuse (I) s. ;g l)[ thi.:
Act contravened Art. I9(1)(g) of the Constilution of India, :?.'i
it
g:ivc unrestricted po\ver to the Majlis to alter or modify the
budget prepared by the muta\valli without a right
of
appc:II
against the action of the ?i.1ajlis and so in1poscd an unreasonable
restriction on the muta\valli in
c1rrying on
hi.o;
occup:ition as
such, :Ind (2) s. 65 of the
Act did not provide for any impri~on
ment in default of payment of fine.
lleld, that
hav1ng regard to the fact
th:-it
a
muta\\':tlii
occupies the position of a man:igcr or custodian and
the
supervisin:i over him by the :tvfaj!i<; with the respect to due administration of
the \vaqf property is neccss:iry and that the 11owers of the !'vfajlis
to olter or modify the budget prepared by the mutawalli are
controlled by sub-s. ( 6) of s. 58 of the Act.
the
restrictions
imros-:d by
s.
58 of the
Act on
the
exercise
of his powers
·'
S.C.R.
SUPREME COURT REPORTS
1033
by
a mutawalli
are
reasonable.
Accordingly,
the
provisions
1957
of s. 58 of the Act do not offend Art. 19 (I) (g) of the Constitution.
Commissioner, Hindu Religious Endowments, Madras v. Sri Bashiruddin Ashraf
Lakshmi·1dr.i Thirt!ia Swamiar of Sri Shirnr Jlutt,
(195-t) S.C.R.
v.
1005, rdic<l on.
Thi State of Bihar
The order of the
Magistrate providing for imprisonment
in
default of payment of fine is not invalid in ,·icw of s. 33 of the
Code of Criminal Procedure read with ss. 40 and 67 of the Indian
Pena! Code.
CRIMWAL
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
deli·;m:d by
h!A!-.1 J .-The appellant was removed from his
position as mutawalli of Gholam Yahia Waqf Estate
on September l, 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
th.::
Court of
the
S;td:ir Sub-Divisional
Magistrate,
Patn:i, on Julv I. 1952, by Mahommad Samu:il, Nazir
of the Maili~. on the order of its Sadar. It was alleged
in the co;1plaint that it was the duty of, the appellant
to prepare a budget of the waqf estate of which he was
a mutawalli, under s. 53(1) of the Act, for the year
Imam].
1957
Bashituddin Ashref
v.
Thi State of Bihar
Imam].
1034
SUPREME COURT REPORTS
[19571
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

## Text

1957
Flu Member for l/u
Board of
Agrici.:ltural
Income Tax, A.Ham
v.
Smt. Sindhurani
Chaudhurani
Kapur J.
1957
Apil, 25
1032
SUPREME COURT REPORTS
fl957]
but it appears that she could not be served and given
notice of the hearing of the appeal and, therefore,
although her appeal is allowed, as it is based on a point
com,non to other appeals, the parties will bear their
own co'ts in that appeal.
Appeal No. J(,2 of 1955 dismissed.
Appeals Nos. 38 to 44 of 7956 allowed.
BASH!RUDDIN ASHRAF
v.
THE STATE OF BIHAR
( S. R. DAS C.J., JAF!'AR IMAM, s. K. DAS, GOV!NDA
MENON and A. K. SARKAR JJ.)
i\!t!tatvalli-A.fajlis,
powers
of-Budgct-Mutatva//i's
fai/u,·e
to prcpart• and send copy to Afaj/is-Coni·ictio'1-Validity-Sentence
of fine, in default imprisonment-Legali:y-l?ihar TVaqfs Act, 1947
(Bi*ar Act 8 of 1948), ss. 58, 65-Con.ctitution
of India, Art.,.
19 (!) (g).
The appellant failed to prepare a bud_gct of the Waqf Estate
of \Yhich he \Vas the mutawalli, for the year 1952-53 and send a
copy of it to the Majlis· before J:-inuary 15, 1952, :is he was hound
to Jo unJt•r s.
58( I)
of the llihar
Waqfs Act,
1947,
ond \•:as
convicted hy the Magistrate under s.
6--5( I)
of the
J\ct
:inJ
stntcncc<l to pay a fine of Rs. iOO, in default to nn(~crgo fifteen
cbyc;
-~iriplc imprisonment.
It was contended for
him that the
con\·iction and sentence \Vere nor \·al id ber:iuse (I) s. ;g l)[ thi.:
Act contravened Art. I9(1)(g) of the Constilution of India, :?.'i
it
g:ivc unrestricted po\ver to the Majlis to alter or modify the
budget prepared by the muta\valli without a right
of
appc:II
against the action of the ?i.1ajlis and so in1poscd an unreasonable
restriction on the muta\valli in
c1rrying on
hi.o;
occup:ition as
such, :Ind (2) s. 65 of the
Act did not provide for any impri~on
ment in default of payment of fine.
lleld, that
hav1ng regard to the fact
th:-it
a
muta\\':tlii
occupies the position of a man:igcr or custodian and
the
supervisin:i over him by the :tvfaj!i<; with the respect to due administration of
the \vaqf property is neccss:iry and that the 11owers of the !'vfajlis
to olter or modify the budget prepared by the mutawalli are
controlled by sub-s. ( 6) of s. 58 of the Act.
the
restrictions
imros-:d by
s.
58 of the
Act on
the
exercise
of his powers
·'
S.C.R.
SUPREME COURT REPORTS
1033
by
a mutawalli
are
reasonable.
Accordingly,
the
provisions
1957
of s. 58 of the Act do not offend Art. 19 (I) (g) of the Constitution.
Commissioner, Hindu Religious Endowments, Madras v. Sri Bashiruddin Ashraf
Lakshmi·1dr.i Thirt!ia Swamiar of Sri Shirnr Jlutt,
(195-t) S.C.R.
v.
1005, rdic<l on.
Thi State of Bihar
The order of the
Magistrate providing for imprisonment
in
default of payment of fine is not invalid in ,·icw of s. 33 of the
Code of Criminal Procedure read with ss. 40 and 67 of the Indian
Pena! Code.
CRIMWAL
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
deli·;m:d by
h!A!-.1 J .-The appellant was removed from his
position as mutawalli of Gholam Yahia Waqf Estate
on September l, 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
th.::
Court of
the
S;td:ir Sub-Divisional
Magistrate,
Patn:i, on Julv I. 1952, by Mahommad Samu:il, Nazir
of the Maili~. on the order of its Sadar. It was alleged
in the co;1plaint that it was the duty of, the appellant
to prepare a budget of the waqf estate of which he was
a mutawalli, under s. 53(1) of the Act, for the year
Imam].
1957
Bashituddin Ashref
v.
Thi State of Bihar
Imam].
1034
SUPREME COURT REPORTS
[19571
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 (!) 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
s. 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 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 w~eks thereafter the Majlis docs
S.C.R.
SUPREME COURT REPORTS
1035
not &end 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 semi 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 (' ) 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,
cst_imate, 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
alxwe, he is liable to be punished with fine.
It was contended by the learned Alh-ocate for the
appellant that s. 58 of the Act was an invalid provision
because it gave unrestricted power to the Majlis to alter
1957
R4<hinidrlin Ashraf
....
The State of Bihar
Imam].
1957
Bashinlddin Ash<af
v.
Tiu Stale ef Bihar
r.,.,.J.
1036
SUPREME COURT REPORTS
[19571
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
Ilihar as its preamble states. Section 5 provides for
the establishment of two l:>odies 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, whicli will <lo 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 ancl 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
sub-section
clearly
indicate
that
the mutawalli is
subordinate to and .vnder 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,
S.C.R.
SUPREME COURT REPORTS
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
G::izette
designate.
Section
5
provides that
within
three months after the thirty-first day of March next
fo11owing 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 al).d 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
,v:1ich 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
fonds 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
arid 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
Endotvments,
Madras
v. Sri
Lakshmindra
Thirtha
Swamiar of Sri Shirur Mutt(') a budget is indispensable
in all public institutions and that it is not per se
(I) [1954) S. C.R. 1005, 1037.
1957
Bashirflddin Ashraf
v.
Tll4 State of Bihar
Imam].
1957
Bashfruddin Ashraf
v.
The StaJ, qf Bihlw
Imam].
1038
S{WREME COURT REPORTS
[1957]
unreasonable to provide for the budget of a religious
institution being prepared under the supervision of the
Commissioner or the Area Committee. Under o. 58 of
·the Act, the mutawalli has to prepare a budget and
send a copy of it to the Majiis 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, ma!,es
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. (I) 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.
S.C.R.
SUPREME COURT REPORTS
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
w~s
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. ·
The appeal is accordingly dismissed.
Appeal dismissed.
UNION OF INDIA
v.
CHAMAN L:(\.L LOONA
(S. R. DAS C.J., JAFER IMAM, s. K. DAS,
GoVINDA MENON and A. K. SARKAR J J.)
Partition of India-Distribution
of
rights
and liabilitiesContract by Governor-General in Council, if and when for the purposes
of Pakistan-Test-Such purpose, if can be modified by powers of
control vested in /oint Defence Council-Adjudication of. rights and
liabilities
under
such
contract-Indian
Independence
(Rights,
Property and Liabilities) Order, 1947, Arts. 8(1), 3(2)-/oint Defence
Council Order, 1947, Art. B(c).
The correct test to determine whether a contract made before
the partition
of India on behalf
of the
Governor-General
in
Council comes within the purview of cl. (a) 'of Art. 8(1) of the
Indian
Independence
(RightS; Property and
Liabilities)
Order,
1957
B1JJhiruddi11 khmf
v..
Thi Stat• ef Bilw
Imam].
1957
April 30.