# SYED BASHIRUDDIN ASHRAF v. BWAR SUBAI SUNNI MAJLIS·E·A WQAF AND OTIIERS

- **Citation:** [1965] 2 S.C.R. 205
- **Court:** Supreme Court of India
- **Decided:** 1964-11-23
- **Case number:** Civil Appeal No. 739 of 1963
- **Bench:** P. B. Gajendragadkar, M. H!Dayatullah, Shah, S. M. S!Kri, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/syed-bashiruddin-ashraf-v-bwar-subai-sunni-majlis-e-a-wqaf-and-otiiers-3318
- **Pages:** 8

## Headnote

Practice-Allegation that High Coui"t did not consider points <Lrgued--
P1opriety and proper procedure.
Bihar Waqfs Act (8 of 1948), .I'. 27(2)(h) as amended by Bihar Waqfs
(Amendment) Act (18 of 1951) and ss. 37 and 38-Scope of.
AHe~o.tions of rnisn1anagement and misappropriation were ma<le against
the appellant whn 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 roport of the Nazir was accepted by the Sadr (chairman)
of the Bihor Subai Sunni Majlis-E-Awqaf (or Majlis) which was supervising the waqf under the Act.
After the accounts were checked, the
Sadr ordered the appelbnt lo 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 Mu<awalli on the ground that he had wilfully disobeyed
the orders and direction of the Majlis under the Act, couJd be 1nade by
the Majlis itself without the intervention of the Distriot Judge. When the
appellant failed to deposit the amount as ordered, the Sadr passed an
order removing him from office and appointed another Muta\valJi for one
year.
The appellant made an appiication to the District Judge, under
s. 27(3) of the Act for 'etting aside the order. The applicatian was <lismissed, but the order appointing the temporary MutawaJJi \Vas aJso set
aside.
Both the ap?ellant and the temporary Mutawalli appealed to the
High Court. 1be High Court dismissed the appeal filed by the appellant
and allowed the other appeal.
In the apper:.l 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) he could be removed from office only for disi,bedience
of orders and directions of the Majlis given after the Amending Act came
into force and not in respect of orders and directions issued pre\'iously.
HELD : (i) This Court will not allow an argument to be raised on
the ~Hegation that the Hiz.h Court omitted to consider the argun1ent \vhen
raised in 1'1c lligh Court. lbe l-Iigh Court is a Court of Record and 1~nless
an omissicn is admitted or is demonstrably proved, this Court ~:ill not
consider an a!le?ation that there is an omission. If any material i·oin! dces
not come under· scn1tiny, the fact should be brou~ht to the no!ice of the
Hie.h Court before judgment is signed and an order of the High Court on
suCh submission ohtain·ed before the point is raised in appeal.
[209 D-F1
The gro\ving practice of making such allegations against the High
Court. deprecated.
[209 DJ
(ii) The amendment no doubt conferred jurisdiction upon the Majlis
to act prospectively from the date of the amendment but the P?\~:e~ under
the amendment cou1d be exercised in respect of orders and d.~rcctions of
tlle Majlis issued by the Majlis and disobeyed bv the Mut~walh b~forc the
coming into force of the amendment.
To hold otherwise wou.d mean
206
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
that in respect of the past conduct neither the Majlis nor the District Judge
A
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
1 and misconduct of many sorts were established. [211 C-D, E-F]

## Text

A
B
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D
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G
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SYED BASHIRUDDIN ASHRAF
v.
BWAR SUBAI SUNNI MAJLIS·E·A WQAF AND OTIIERS
November 23, 1964
(P. B. GAJENDRAGADKAR, C. J., M. H!DAYATULLAH, J, C, SHAH,
S. M. S!KRI AND R. S. BACHAWAT, JJ.]
Practice-Allegation that High Coui"t did not consider points <Lrgued--
P1opriety and proper procedure.
Bihar Waqfs Act (8 of 1948), .I'. 27(2)(h) as amended by Bihar Waqfs
(Amendment) Act (18 of 1951) and ss. 37 and 38-Scope of.
AHe~o.tions of rnisn1anagement and misappropriation were ma<le against
the appellant whn 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 roport of the Nazir was accepted by the Sadr (chairman)
of the Bihor Subai Sunni Majlis-E-Awqaf (or Majlis) which was supervising the waqf under the Act.
After the accounts were checked, the
Sadr ordered the appelbnt lo 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 Mu<awalli on the ground that he had wilfully disobeyed
the orders and direction of the Majlis under the Act, couJd be 1nade by
the Majlis itself without the intervention of the Distriot Judge. When the
appellant failed to deposit the amount as ordered, the Sadr passed an
order removing him from office and appointed another Muta\valJi for one
year.
The appellant made an appiication to the District Judge, under
s. 27(3) of the Act for 'etting aside the order. The applicatian was <lismissed, but the order appointing the temporary MutawaJJi \Vas aJso set
aside.
Both the ap?ellant and the temporary Mutawalli appealed to the
High Court. 1be High Court dismissed the appeal filed by the appellant
and allowed the other appeal.
In the apper:.l 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) he could be removed from office only for disi,bedience
of orders and directions of the Majlis given after the Amending Act came
into force and not in respect of orders and directions issued pre\'iously.
HELD : (i) This Court will not allow an argument to be raised on
the ~Hegation that the Hiz.h Court omitted to consider the argun1ent \vhen
raised in 1'1c lligh Court. lbe l-Iigh Court is a Court of Record and 1~nless
an omissicn is admitted or is demonstrably proved, this Court ~:ill not
consider an a!le?ation that there is an omission. If any material i·oin! dces
not come under· scn1tiny, the fact should be brou~ht to the no!ice of the
Hie.h Court before judgment is signed and an order of the High Court on
suCh submission ohtain·ed before the point is raised in appeal.
[209 D-F1
The gro\ving practice of making such allegations against the High
Court. deprecated.
[209 DJ
(ii) The amendment no doubt conferred jurisdiction upon the Majlis
to act prospectively from the date of the amendment but the P?\~:e~ under
the amendment cou1d be exercised in respect of orders and d.~rcctions of
tlle Majlis issued by the Majlis and disobeyed bv the Mut~walh b~forc the
coming into force of the amendment.
To hold otherwise wou.d mean
206
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
that in respect of the past conduct neither the Majlis nor the District Judge
A
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
1 and misconduct of many sorts were established. [211 C-D, E-F]
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
B
c
ffidayatnllah, J.
The appellant
Bashiruddin Ashraf
was
Mutwalli of certain Waqf properties in Monghyr District, dediD
cated by one Sheikh Golam Yahya by a registered Waqfnama
dated April 11, 1870. Under this deed Mutwal/is 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.
E
The Mutwalli in-charge was entitled to 9 / 48th share of
the
income as his remuneration. On April l, 1948, the Bihar
Waqfs Act; 194 7 (Act 8 of 1948) came into force. and this W aqf
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.
F
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 remoG
val 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. 3 7 of 1949. An enquiry was made by
Mehadi Hassan, who reported on May 25, 1950 to the Majlis th.at
the charges levelled against the appellant were proved. His report
H
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
I
BASHIRUDDIN v. MAJLIS (Hidayatullah, J.)
207
A 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
B 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
C 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
D of the Sadr .and the proceedings were registered as Miscellaneous
Case No. 30/4 of 1951. TI1e order of the Sadr was assailed on
several grounds, some of fact and others of law. By the petition
the appellant alsp asked for the removal of Maul vi Md. SIJ.oeb from
Mutwalliship.
The present appeal arises from the order passed
by the Additional District Judge, Monghyr and the judgment of
E 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'
(i) Whether the Majlis or the Sadr was competent and
6
ff
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
SUPREME COURT REPORTS
[1965] 2 S.C.R.
The Additional District Judge, Monghyr decided all the issues,
A
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 wits raised
to which we shall refer presently.
The order appointing the B
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 thats. 27(2)(h)(iii) added by the amending Act,
1951, was not retrospective and could only operate from June 6, c
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 appell~nt was rejected.
Two appeals were filed against the order of the Additional
District Judge by the appellant and Maulvi Md. Shoeb respectively.
D
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 Qr direcE
lion 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 F
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 erroneou~,
perverse and illegal. The order of the Additional District Judge G
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
point~d out that s. 32 of the Act was clear in conferring jurisdiction H
on the Majlis to make temporary appointment when there was a
vacancy in the office of the Mutwalli and that the words in that
BASHIRUDDIN v. MAJLIS (Hidayatullah, J.)
209
A 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
B 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
C were not considered and in the application for leave to ~ppeal 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
D 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
E 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
F 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
G 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 deba'ted again because he has thought out fresh
arguments.
H
This disposes of all questions of fact and we now proceed to
c~nsider arguments relating to law which were mainly -concerned
with the jurisdiction of the Majlis and/ or the Sadr to pass the
210
SUPREME COURT REPORTS
[1"965] 2 S.C.R.
order of removal. It may be pointed out here that at the suit of
A.
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
B
disobeying orders and directions made to him by the Majlis. At
that time the apl'fllant 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 C
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.
D
Tne~e 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
E
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
V
of the provisions of the first sub-~ection, 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 dirf'ction of the Majlis under this Act." The italicised words were
inserted. by s. 2 of the Bihar Waqfs (Amendment) Act, 1951
6
(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-d. (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
M utwalli on the application of the Majlis.
In other words, the
H
removal of the Mutwalli on the ground ·that he had wilfully dis-
(ll [1957] S.C.R. 1032
B
D
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G
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BASHIRUDDIN V. MAJLIS (Hidayatu//ah, J.)
21 l
obeyed the orders and directions of the Majlis under the Act
could be made, after amendment, by the Majlis itseH without the
intervention of the District Judge.
After the amendment
the
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 itseH
was competent to act.
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. 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 Mutwal1i 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. 4 7 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
SUPREMB COURT REPORTS
[1965] 2 S.C.R.
Lastly, it was contended that the powers of removal conferred A
·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 Maj/is. If any
necessity arises for immediate action by the Majlis, and
a meeting of the Majlis cannot be arranged ill 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 a_ction."
"38. Delegation of powers of Maj/is.
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."
B
c
There is nothing to show that the powers of the Majlis were not
D
delegated. But even if s. 3 8 did not apply it would appear from
s. 3 7 that the Sadr possessed all the powers of the Majlis in an
emergency and the High Court and the Additional District Judge
have concurrently /leld 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
E
did nof 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
F
costs.
Appeal dlsmissed.