LexSYED BASHIRUDDIN ASHRAF versus BIHAR SUBAI SUNNI MAJLIS-E-A WQAF AND OTHERS
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A B c D E F G H 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 super- vising 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 <lis- missed, 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 ante- rior 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, dedi- D cated by one Sheikh Golam Yahya by a registered Waqfnama dated April 11, 1870. Under this deed Mutwal/is w
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