1. Removal of Mutwalli for mismanagement and disobedience of orders under the Bihar Waqfs Act, 1947 — Challenge to jurisdiction and constitutionality of the removal order. (Para 1 , 2 , 3 )
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1963 Supreme(SC) 269
SUPREME COURT OF INDIA
23rd November 1964
P.B. GAJENDRAGADKAR, C.J.I., M. HIDAYATULLAH, J.C. SHAH, S.M. SIKRI AND R.S. BACHAWAT, JJ.
Bashiruddin Ashraf, Appellant
Versus
The Bihar Subai Sunni Majlis-Awaqf and another, Respondents.
Civil Appeal No. 739 of 1963.
Advocates appeared
M/s. Tarkeshwar Dayal and K. K. Sinha, Advocates for Appellant; Mr. Sarjoo Prasad, Senior Advocate, (Mr. U. P. Singh, Advocate, with him), for Respondents.
Advocates:
K.K.SINHA, SARJU PRASAD, TARKESHVAR DAYAL, Udaipratap Singh
K.K.SINHA, SARJU PRASAD, TARKESHVAR DAYAL, Udaipratap Singh
Important Points
A power conferred by an amendment to remove a Mutwalli for disobedience can be exercised based on conduct prior to the amendment, as there is no vested right to hold office despite proven mismanagement and misconduct.
Subject
Civil Law - Waqf Law
Act Referred
Headnote
(A) Bihar Waqfs Act, 1947 - Sections 27, 32, 37, 38 - Removal of Mutwalli - Jurisdiction - Retrospectivity of Amendment - Power of the supervisory body to remove a Mutwalli for wilful disobedience of orders and directions - An amendment conferring such power can be exercised in respect of conduct anterior to its enactment if clearly intended, provided no vested right is taken away - There can be no vested right to continue as Mutwalli after mismanagement and misconduct are established (Para 10).
(B) Bihar Waqfs Act, 1947 - Section 32 - Temporary appointment of Mutwalli - The phrase "subject to any order by the competent Court" denotes that the appointment is to endure according to its tenor until an order to the contrary is passed by a competent Court; it does not imply a requirement for prior permission or subsequent assent before the appointment is complete (Para 6).
(C) Bihar Waqfs Act, 1947 - Sections 37 and 38 - Exercise of powers by the Chairman - The Chairman may exercise any power of the supervisory body if necessity arises for immediate action or through delegation; such actions are valid if reported to and approved by the body (Para 12).
(D) Interpretation of Statutes - "Orders" vs "Directions" - Both terms express the binding wish of the authority, differing only in degree; disobedience of an order, being more peremptory than a direction, is a valid ground for removal (Para 11).
Facts of the case:
A Mutwalli was removed from office by the Chairman of a supervisory body following an enquiry that proved charges of mismanagement, misappropriation, and falsification of accounts. The removal was triggered after the Mutwalli failed to deposit a sum found due to the estate by an auditor. The Mutwalli challenged the removal and the appointment of a temporary successor, contending that the power to remove for disobedience was introduced by an amendment that could not operate retrospectively to cover conduct prior to the amendment's enforcement.
Findings of Court:
The court upheld the removal, ruling that the supervisory body and its Chairman acted within their jurisdiction. It held that the appointment of a temporary Mutwalli under the Act is effective immediately and remains so until overturned by a court. It further determined that the power to remove for prior misconduct does not constitute impermissible retrospective operation of a statute.
Issues: Whether the supervisory body had jurisdiction to remove the Mutwalli based on conduct prior to an amending Act; whether the appointment of a temporary Mutwalli required court ratification; and whether the relevant sections of the Act were unconstitutional.
Ratio Decidendi: A statute is not necessarily retrospective when the power it confers is based on conduct anterior to its enactment, provided it is clearly intended to reach back to that conduct and no vested right is infringed. There is no vested right to remain a Mutwalli despite proven misconduct. Additionally, the Chairman may exercise the body's powers in emergencies or via delegation, and such actions are valid upon reporting and approval.
Result: Appeal dismissed with costs.
(B) Bihar Waqfs Act, 1947 - Section 32 - Temporary appointment of Mutwalli - The phrase "subject to any order by the competent Court" denotes that the appointment is to endure according to its tenor until an order to the contrary is passed by a competent Court; it does not imply a requirement for prior permission or subsequent assent before the appointment is complete (Para 6).
(C) Bihar Waqfs Act, 1947 - Sections 37 and 38 - Exercise of powers by the Chairman - The Chairman may exercise any power of the supervisory body if necessity arises for immediate action or through delegation; such actions are valid if reported to and approved by the body (Para 12).
(D) Interpretation of Statutes - "Orders" vs "Directions" - Both terms express the binding wish of the authority, differing only in degree; disobedience of an order, being more peremptory than a direction, is a valid ground for removal (Para 11).
Facts of the case:
A Mutwalli was removed from office by the Chairman of a supervisory body following an enquiry that proved charges of mismanagement, misappropriation, and falsification of accounts. The removal was triggered after the Mutwalli failed to deposit a sum found due to the estate by an auditor. The Mutwalli challenged the removal and the appointment of a temporary successor, contending that the power to remove for disobedience was introduced by an amendment that could not operate retrospectively to cover conduct prior to the amendment's enforcement.
Findings of Court:
The court upheld the removal, ruling that the supervisory body and its Chairman acted within their jurisdiction. It held that the appointment of a temporary Mutwalli under the Act is effective immediately and remains so until overturned by a court. It further determined that the power to remove for prior misconduct does not constitute impermissible retrospective operation of a statute.
Issues: Whether the supervisory body had jurisdiction to remove the Mutwalli based on conduct prior to an amending Act; whether the appointment of a temporary Mutwalli required court ratification; and whether the relevant sections of the Act were unconstitutional.
Ratio Decidendi: A statute is not necessarily retrospective when the power it confers is based on conduct anterior to its enactment, provided it is clearly intended to reach back to that conduct and no vested right is infringed. There is no vested right to remain a Mutwalli despite proven misconduct. Additionally, the Chairman may exercise the body's powers in emergencies or via delegation, and such actions are valid upon reporting and approval.
Result: Appeal dismissed with costs.
Judgement Key Points
The provided legal document does not contain any explicit reference or statement indicating that "statements made in the impugned order of the high court cannot be challenged in a special leave petition" or that "the correctness of the statements cannot be challenged by the high court." The judgment primarily discusses the jurisdiction, procedural aspects, and merits of the case, as well as the validity of the statutory provisions and amendments. There is no specific mention of the principle that statements in the high court's order are unchallengeable in a special leave petition.
Legal Category Hierarchy
- religious and charitable endowments
- administrative law
- constitutional law
- statutory interpretation
Table of Contents
2. Whether the power to remove a Mutwalli for disobeying orders under the 1951 Amendment operates retrospectively and whether the Sadr had jurisdiction to act for the Majlis. (Para 4 , 5 , 10 , 11 , 12 )
3. The court held that power to remove for misconduct can be based on prior conduct and that the Sadr may act in emergencies or via delegation. (Para 6 , 7 , 9 , 10 , 11 , 12 )
4. A statute is not necessarily retrospective when power is based on anterior conduct, provided it is intended to reach back and no vested right is violated. (Para 10 )
5. Appeal dismissed with costs. (Para 13 )
6. Does a power conferred by an amendment operate retrospectively if it is based on conduct occurring before the amendment?
A statute is not necessarily used retrospectively when the power conferred is based on conduct anterior to its enactment, provided it is clearly intended that the power reach back to that conduct and no vested right is taken away. (Para 10 )
7. Does the failure to obey an order justify removal if the statute specifically mentions directions?
Yes. Orders and directions both express the binding wish of the authority and differ only in degree; disobedience of a more peremptory order cannot go unpunished if disobedience of a direction merits removal. (Para 11 )
8. Under what circumstances can the Sadr exercise the powers of the Majlis?
The Sadr may exercise Majlis powers if necessity arises for immediate action and a meeting cannot be arranged in time, or if the Majlis has delegated its powers and duties to the Sadr. (Para 12 )
9. Does a temporary appointment of a Mutwalli under Section 32 require prior permission or subsequent assent from a competent court?
No. The phrase subject to any order by the competent Court means the appointment endures according to its tenor until an order to the contrary is passed by a competent court. (Para 6 )
10. Will the Supreme Court re-examine factual findings of a High Court if the party claims certain arguments were not considered?
Generally, no. The Supreme Court regards the details of arguments in a High Court judgment as correct and will not enter an enquiry into what was argued unless an omission is admitted or demonstrably proved. (Para 7 )
Judgment
HIDAYATULLAH, J.: The appellant Bashiruddin Ashraf was Mutwalli of certain Waqf properties in Monghyr District, dedicated by one Sheikh Golam Yahya by a registered Waqfnama dated April 11, 1870. Under this deed Mutwallis 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. The Mutwalli in-charge was entitled to 9/48th share of the income as his remuneration. On April 1, 1948, the Bihar Waqfs Act, 1947 (Act 8 of 1948) came into force and this Waqf came under the purview of that Act and was registered as Waqf No. 67. Under the scheme of the Act the Bihar Subai Sunni Majlise-Awaqf (shortly Majlis) began supervising this Waqf. At all material times one Syed Bashiruddin was the Sadr (Chairman) of the Majlis and Syed Mehdi Hassan was the Nezir-e-Awaqf under S. 22.
2. On March 2, 1949 Syed Naziruddin Ashraf (step-brother of the appellant) and some others presented an application for removal 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. 37 of 1949. An enquiry was made by Mehadi Hassan, who reported on May 25, 1950 to the Majlis that the charges levelled against the appellant were proved. His report 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 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 he reported on February 8, 1951 that a sum of Rs. 9,682-1-3 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 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.
3. The appellant then made an application to the District Judge under S. 27(3) of the Bihar Waqfs Act for setting aside the order of the Sadr and the proceedings were registered as Miscellaneous Case No. 30 / 4 of 1951. The order of the Sadr was assailed on several grounds, some of fact and others of law. By the petition the appellant also asked for the removal of Maulvi Md. Shoeb from Mutwalliship. The present appeal arises from the order passed by the Additional District Judge, Monghyr and the judgment of the High Court dated December 21, 1960 on appeals from that order.
4. 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) whether the Majlis or the Sadr was competent and had jurisdiction to direct the Matwalli 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 Ss. 27 and 32 of the Act are ultra vires of the Constitution of India ?
The Additional District Judge, Monghyr decided all the issues, except the 3rd, against t
