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