iminal 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
section P Varma for respondent No 1 1957
April 25
The Judgment of the Court was delivered by IMAM J
The appellant was removed from his position as mutawalli of Gholam Yahia Waqf Estate on September 1 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 the Court of the Sadar Sub Divisional Magistrate Patna on July 1 1952 by Mahommad Sual Nazir of the Majlis on the order of its Sadar
It was alleged in the complaint that it was the duty of the appellant  to prepare a budget of the waqf estate of which he was a mutawalli under section 581 of the Act for the year 133 1034 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 section 651 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 section 651 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 section 581 of the Act makes him liable to be punished under section 651
At this stage it is necessary to set out the provisions of a 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 the Majlis
2The 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
3If 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
4If within the period mentioned in subsection 2 and for two weeks thereafter the Majlis does 1035 not send 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
5If the mutawalli fails to prepare and send 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
6Nothing 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 section
1 of section 58
Sub section 1 of section 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 estimate 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 section 581 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 section 65 1 if he fails to comply with the above he is liable to be punished with fine
It was contended by the learned Advocate for the appellant that section 58 of the Act was an invalid provision because it gave unrestricted power to the Majlis to alter 1036 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 section 58 imposed an unreasonable restriction on the mutawalli in carrying on his occupation as such
Accordingly the provisions of section 58 offended article 191 g of the Constitution
The Act was enacted for the purpose of providing for the better administration of waqfs in the State of Bihar as its preamble states
Section 5 provides for the establishment of two bodies 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 which will do 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 and 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 subsection clearly indicate that the mutawalli is subordinate to and under the control of the Majlis
The Majlis under section 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 section 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 section 3 of the Mussalman Wakf Validating Act 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 Gazette designate
Section 5 provides that within three months after the thirty first day of March next following the date on which the statement referred to in section 3 had been furnished and thereafter within three months of the thirty first day of March in every year the mutawalli shall prepare and 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 which 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 section 3 or section 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 funds was certainly necessary we are of the opinion that the provisions of section 58 of the Act are reasonable restrictions on the exercise of his duties as a mutawalli and it cannot be said that the provisions of section 58 offend any of the provisions of the Constitution
As was said in the case of The Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt1 a budget is indispensable in all public institutions and that it is not per se 1   1037
1038 unreasonable to provide for the budget of a religious institution being prepared under the supervision of the Commissioner or the Area Committee
Under section 58 of the Act the mutawalli has to prepare a budget and send a copy of it to the Majlis 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 section 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 section 70 of the Madras Hindu Religious and Charitable Endowments Act 1951 makes 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 section 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 section 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 sections
2 3 and 4 of section 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 sections
2 3 and 4 are clearly severable from sub sections
1 5 and 6 of section 58
Even if sub sections
2 3 and 4 were struck down the mutawalli would still be under a legal obligation under sub section
1 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 section 651
It was urged that the Sessions Judge erred in placing the onus on the appellant under section 651 to prove that he had submitted the copy of the budget within time
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 was 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 section 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 sections 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 section 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


Summary:
The appellant failed to prepare a budget of the Waqf Estate of which he was the mutawalli for the year 1952 53 and send a copy of it to the Majlis before January 15 1952 as he was bound to do under section 581 of the Bihar Waqfs Act 1947 and was convicted by the Magistrate under section 651 of the Act and sentenced to pay a fine of Rs 100 in default to undergo fifteen days simple imprisonment
It was contended for him that the conviction and sentence were not valid because 1 section 58 of the Act contravened article 191 g of the Constitution of India as it gave unrestricted power to the Majlis to alter or modify the budget prepared by the mutawalli without a right of appeal against the action of the Majlis and so imposed an unreasonable restriction on the mutawalli in carrying on his occupation as such and 2 section 65 Of the Act did not provide for any imprisonment in default of payment of fine
Held that having regard to the fact that a mutawalli occupies the position of a manager or custodian and the supervision over him by the Majlis with respect to due administration of the waqf property is necessary and that the powers of the Majlis to alter or modify the budget prepared by the mutawalli are controlled by sub section
6 Of section 58 of the Act the restrictions imposed by section 58 Of the Act on the exercise of his powers 1033 by a mutawalli are reasonable
Accordingly the provisions Of section 58 of the Act do not offend article 19 i g of the Constitution
Commissioner Hindu Religious Endowments Madras vs Sri Lakshmindya Thirtha Swamiar of Sri Shirur Mutt   relied on
The order of the Magistrate providing for imprisonment in default of payment of fine is not invalid in view Of section 33 of the Code of Criminal Procedure read with sections 4o and 67 of the Indian Penal Code