- (1.) The appellant was removed from his position as mutawalli of Cholam Yahia Waqf Estate on 1st September l95l, by an order passed by the Majlis constituted under the Bihar Waqfs Act, 1947 (Bihar Act 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 1st July 1952, by Mahommad Samual, 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 S. 58 (1) of the Act, for the year 1952-53 and to send a copy of it to the Majlis before 15th January 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 (1) of the Act and sentenced to pay a fine of Rs. 100, in default to undergo 15 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.
(2.) 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 I5th January 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 a waqf for the next succeeding financial year and shall forthwith send a copy thereof to the Majlis. (2) The Majlis may, within the six weeks from the date on which it received 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-s. (2), it shall forthwith send a copy of the budget as so called 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 sub-s. (2) and for two weeks thereafter the Majlis does not send to the rnutawalli 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 send a copy of the budget as required by sub-s. (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 extend 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 (l) of S.65 reads as follows: "(65) (1) If a mutawalli fails without reasonable cause, the burden of provision which shall be upon him to comply with any order or direction made or issued under clauses (i), (o) or (q) of sub-s. (2) of S. 27 or under S. 56, to comply with the provisions of sub- s. (1) of S. 57 sub-s. (1) of S. 58, S. 59 or S.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 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 the second or any subsequent offence, to five hundred rupees." It is clear from the provisions of S. 59 (1) that before 15th January, 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 above, he is liable to be punished with fine.
(3.) It was contended by the learned Advocate for the appellant that S. 58 of the Act was an invalid provision because 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 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.;