Fateh Singh v. State Of Bihar — 1955 DIGILAW 22 (PAT)

Judgment Das, J. 1. The petitioner has been convicted under Sec. 65(1), Bihar Waqfs Act, 1947 , for failure to prepare a budget of the estimated income and expenditure of the Waqf estate known as Waqf-Alal-Aulad estate of Rani Sayeeda Khatoon, of which the petitioner is the Mutawalli, and sending the same budget to the Majlis as required by Sub-section (1) of Sec. 58 of the said Act. He has been sentenced to a fine of Rs. 100/-or, in default, simple imprisonment for 15 days. Sec. 58(1), Bihar Waqfs Act, 1947 , requires that the Mutawalli of every Waqf shall, before the fifteenth, day of January 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 Majlis. By the Majlis is meant the Bihar Subai Sunni Majlis-e-Awaqf. The prosecution case was that it was the duty of the petitioner in his capacity as Mutawalli of the said estate to prepare the budget for the year 1953-54 before the fifteenth day of January, 1953, and forthwith send a copy of it to the Majlis. This the petitioner failed to do. Therefore, on 14-2-1953, a complaint was made against the petitioner under the authority of the Sadr of the Majlis. 2. The defence of the petitioner was that he kept the accounts of the estate according to the Fasli year which began in October and ended in succeeding September of each year. The petitioner alleged that in 1951, and again in 1952, he submitted the budget estimate according to the Fasli year. The case of the petitioner was that on 20-5-1952, he submitted the budget for the year 1360 Fasli, which would correspond to the period from October, 1952, to September, 1953. The petitioner further alleged that there was a criminal case against him for non-submission of the budget of 1952-53 by 15-1-1952, and that case ended in acquittal by a judgment of Mr. . C. Gupta, a Magistrate exercising first class powers at Patna, dated 7-2-1953. 3. The petitioner further alleged that there was a criminal case against him for non-submission of the budget of 1952-53 by 15-1-1952, and that case ended in acquittal by a judgment of Mr. . C. Gupta, a Magistrate exercising first class powers at Patna, dated 7-2-1953. 3. The Courts below concurrently held that under Sub-section (1) of, Sec. 58, it was the duty of the petitioner to prepare a budget of the estimated income and expenditure of the Waqf estate gor the year 1963-54 before 15-1-1953, and to send a copy thereof to the Majlis, and the petitioner not having done so, he was liable to be punished under Sub-section (1) of Sec. 65 of the Act. The courts below refused to accept the plea of the petitioner that the budget estimate had to be prepared according to the Fasli year and that the budget estimate which the petitioner sent on 20-5-1952, amounted to a compliance with the requirements of the law as laid down in Sub-section (1) of Sec. 58, at least so tar as the budget estimate for the year 1953-54 was concerned. On that basis the petitioner was convicted and sentenced by the courts below. 4. I am satisfied that the courts below were right in their interpretation of Sub-section (1) of Sec. 58, Bihar Waqfs Act, 1947 . That sub-section says in clear terms that the Mutawalli shall, before the fifteenth" of January each year, prepare a budget of the estimated income and expenditure for such Waqf for the next succeeding financial year and shall forthwith send a copy thereof to the Majlis. I do not think that there is any room for the contention that the budget estimate has to be prepared according to the Fasli year. The section says clearly that the budget estimate has to be prepared before the fifteenth day of January each year for the next succeeding financial year. If the previous practice of the estate was to keep accounts according to the Fash year, even then the Mutawalli had to submit the budget estimates as required by the law, and the practice of the estate cannot override the express terms of the statute. Learned Counsel for the petitioner has drawn my attention to an apparent mistake which the learned Sessions Judge of Patna has made. Learned Counsel for the petitioner has drawn my attention to an apparent mistake which the learned Sessions Judge of Patna has made. The learned Sessions Judge of Patna presumably thought that the budget for the year 1953-54 had been submitted by the petitioner on 20-5-1953; that, however, is not correct. What happened was that on 20-5-1952 (not 1933), the petitioner had submitted a budget estimate ior 1952-53 according to the Fasli year, that is, commencing from the 1-10-1952, and endiug on 30-9-1953. This was not the budget estimate for the year 1953-54. In the criminal case which was tried by Mr. S.C. Gupta, the question was if the petitioner had submitted the budget estimate for 1952-53 within the due time. The learned Magistrate pointed out that time for the submission of the said budget estimate had been extended by the Majlis, and the Majlis was competent to extend the time under Sec.27(2)(t) of the Act. In that view of the matter, he held that the petitioner had committed no offence by the late submission of the budget for the year 1952-53. The learned Magistrate did not come to any finding as to whether the budget estimate should be submitted according to the Fasli year, nor was he dealing with the question of the failure to submit the budget estimate in time for the year 1953-54. Therefore, I do not think that the judgment of Mr. S.C. Gupta in the previous criminal case against the petitioner is of any help in the present case. 5. Learned Counsel for the petitioner has drawn my attention to the notice under Section 61, issued to the petitioner on 6-10-1951, to submit accounts. Learned Counsel has contended that the accounts were submitted according to the Fasli year and such accounts were accepted by the Majlis. If may be that there were some reasons for the petitioner to think that he could continue to keep accounts according to the Fasli year; that may be a mitigating circumstance in favour of the petitioner, but I do not think that the petitioner is entitled) to say that he has committed no offence because the practice of the estate has been 10 keep accounts according to the Fasli year. I have already stated that the practice of the estate cannot override the express terms of the statute. 6. I have already stated that the practice of the estate cannot override the express terms of the statute. 6. Next, it has been argued that the estate was notified under Sec.3, J3ihar Laud Reforms Act,. 1950, on 6-11-1951, and from the date of the notification the estate vested in the State Government, and the petitioner was under no legal liability thereafter to prepare budget estimates and submit the same to the Majlis. This is a new argument which does not appear to have been raised at any earlier stage. Learned Counsel for the petitioner has conceded, however, that there was litigation over the matter and a stay of delivery of possession was obtained. It has been stated before me that possession was actually delivered on 29-11-1953. It is clear, therefore, that on the relevant date, namely, 15-1-1953, the petitioner was still working as Mutawalli. This has not been denied before me. Even assuming that the estate had vested in the State Government on the issue of the notification under Sec.3, Bihar Land Reforms Act, 1950 , no particular section of the Bihar Land Reforms Act has been brought to my notice which shows that on such vesting the Mutawalli ceases to function. In any view of the matter, it is common ground that the Mutawalli was functioning as Mutawalli on or about 15-1-1953, and I see no reasons why he should not be amenable to the provisions of Sec. 58, Bihar Waqfs Act, 1947 , on or about that date, when he was actually working as Mutawalli of the estate in question. I must, therefore, reject the contention which learned Counsel lor the petitioner has advanced on the basis of the notification issued under Sec.3, Bihar Laud Reforms Act, 1950. 7. Learned Counsel for the petitioner has also argued before me that the Bihar Waqfs Act, 1947, is ultra vires. This is also a new argument which was not advanced at any earlier stage. I am aware that certain provisions of the Bihar Waqfs Act, 1947, have been called in question, particularly the provisions relating to the creation of a Waqf fund and certain other provisions which interfere with the management of the estate by the Mutawalli. This is also a new argument which was not advanced at any earlier stage. I am aware that certain provisions of the Bihar Waqfs Act, 1947, have been called in question, particularly the provisions relating to the creation of a Waqf fund and certain other provisions which interfere with the management of the estate by the Mutawalli. I am not, however, aware that any question has been raised as to the invalidity of Sec. 58, Bihar Waqfs Act, 1947 ; nor has learned Counsel for the petitioner been able to give me good reasons why Sec. 58, Bihar Waqfs Act, 1947 , shall be held to be ultra vires the State legislature. As far as I can make out, Section 58, Bihar Waqfs Act, 1947 , does not interfere with or abridge any of the fundamental rights guaranteed by the Constitution of India, and the State Legislature of Bihar was quite competent to legislate about trusts and trustees within the State of Bihar. 8. In my opinion the conviction of the petitioner is correct. The only other question is the question of sentence. I am satisfied that there were some reasons for the petitioner to think, though wrongly, that he could continue to submit budget estimates according to the Fasli year. This I take as a mitigating circumstance, and taking that circumstance into consideration, I reduce the fine to a nominal fine of Rs. 30.00 only. Subject to the aforesaid modification of the sentence, the application in revision is dismissed.