Madras High Court
Janab Malang Nisar Ahmed vs Mr.P.Hafeezan Rahman on 26 November, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26.11.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.OP No.13252 of 2009 1.Janab Malang Nisar Ahmed, 2.Janab 3.Mandi Md.Farooq 4.Mr.P.R.Saifullah .. Petitioners Vs Mr.P.Hafeezan Rahman .. Respondent Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., to call for the entire records in C.C.No.764 of 2009 pending on the file of the learned II Metropolitan Magistrate, Chennai and quash the same. For Petitioner :Mr.K.M.Aasim Shehzed For Respondent :Mr.K.Mohanamurali ORDER
The respondent claims to be the Mutawalli of AHL-E-SUNNATH-O-JAMATH OLD MOSQUE which is governed by the Wakf Act, 1995. The respondent filed C.C.No.764 of 2009 before the learned VII Metropolitan Magistrate, George Town, Chennai under Section 68 of the Wakf Act, seeking a direction to the petitioners herein, to deliver charge and possession of the records, accounts and properties, including the cash, within a period to be specified by the Magistrate, failing which, punish the accused as per the Wakf Act. In the said petition, it is alleged by the respondent that the said mosque had properties in and around the area of Vaniambadi, Chennai. It was also alleged before the trial Court that the first accused is the Mutawalli and the second accused is the Assistant Mutawalli of the mosque between 2002 and 2008. The third petitioner was a committee member between 1994 and 2008 and the fourth petitioner was a member between 1994 and 2002.
2.The petitioners have come up with this petition seeking to quash the said proceedings. Though, several grounds have been raised in the petition, the main ground upon which the proceeding before the lower Court is assailed is that under Section 68 of the Wakf Act, the learned II Metropolitan Magistrate, George Town, Chennai has got no jurisdiction or power to entertain such a petition.
3.I have heard the learned counsel for the petitioners and the learned counsel for the respondent and I have also perused the records carefully.
4.In order to resolve the said dispute, let us have a quick look into Section 68(4) of the Wakf Act as it originally stood prior to the amendment which reads as follows:-
68(4)Whenever any removed mutawalli or any member of the removed committee omits or fails to comply with the orders made by the Magistrate under sub-section (2), the Magistrate may authorise the successor mutawalli or committee to take charge and possession of such records, accounts, properties (including cash) and may authorise such person to take such police assistance as may be necessary for the purpose.
5.Precisely, the same question as to whether the term Magistrate as referred to in Section 68(4) of the Wakf Act would mean Judicial Magistrate or Executive Magistrate, came up for consideration before the Madurai Bench of this Court in Jabar Maideen v. Vallam Jumma Pallivasal Committee (CRL R.C (MD) No.526 of 2006 dated 19.10.2006). In that case, after having dealt with Section 3 of the Code of Criminal Procedure, vis a vis, Section 68(4) of the Wakf Act, the Madurai Bench of this Court has held that the term Magistrate as employed in Section 68(4) of the Wakf Act, refers only to the Executive Magistrate and not the Judicial Magistrate. In paragraph No.15, the learned Single Judge of the Madurai Bench of this Court, in the said judgement, has held as follows:-
15.The learned Judicial Magistrate No.2, Thanjavur has no authority to pass any order under Section 68(2) of the Wakf Act, 1995. The respondent has to approach only the jurisdiction Executive Magistrate to pass necessary orders under Section 68(2) of the said Act.
6.Similar provision is found in Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as SARFAESI, Act). Before the Madurai Bench, it was contended that the term District Magistrate as employed in Section 14 of the SERFAESI Act would mean only the Executive Magistrate. In support of the said contention, the judgement of the Madurai Bench of this Court in Jabar Maideen v. Vallam Jumma Pallivasal Committee (cited supra) was relied on.
7.In Indian Overseas Bank v. Sree Aravindh Steels Ltd., (2009 (1) MLJ (Crl.) 416), a Division Bench of the Madurai Bench has held that so far as the Wakf Act is concerned, the term Magistrate as employed in Section 68 of the Act means only Executive Magistrate and not Judicial Magistrate. But, so far as Section 14 of the SARFAESI Act is concerned, the Division Bench has held that the term District Magistrate includes the Chief Judicial Magistrate. Thus, the Division Bench in Indian Overseas Bank v. Sree Aravindh Steels Ltd., (cited supra) affirmed the view taken by the learned Single Judge of the Madurai Bench of this Court in Jabar Maideen v. Vallam Jumma Pallivasal Committee (cited supra) so as to hold that the term Magistrate as employed in Section 68 of the Wakf Act means only an Executive Magistrate and not Judicial Magistrate.
8.The story does not stop with this. In a similar case under the Wakf Act, when Jabar Maideen v. Vallam Jumma Pallivasal Committee (cited supra) case was relied on by a party, yet another Honourable Judge sitting in Madurai Bench expressed his inability to agree with the view taken in the said case. Therefore, he referred the same to a Division Bench. The Division Bench sitting in Madurai Bench of this Court in A.K.Kalifullah v. M.Abdul Khader and Another (2013 (2) CTC 839) overruled the judgement in Jabar Maideen v. Vallam Jumma Pallivasal Committee (cited supra) and held that the term First Class Magistrate as employed in Section 68(2) of the Wakf Act would mean Judicial Magistrate of First Class and not the Executive Magistrate.
9.But, unfortunately, the Division Bench in Indian Overseas Bank v. Sree Aravindh Steels Ltd., (cited supra) wherein the earlier Division Bench had taken the view that the term First Class Magistrate as employed in Section 68(2) of the Wakf Act would mean only an Executive Magistrate, was not brought to the notice. Thus, there were two Division Bench judgements which are conflicting in nature.
10.In yet another case under Section 14 of the SARFAESI Act, when the judgement in Indian Overseas Bank v. Sree Aravindh Steels Ltd., (cited supra) case was cited, the Division Bench found the judgement of the Bombay High Court taking quite a contrary view. Therefore, the said Division Bench presided over by the then Hon'ble Chief Justice Mr. R.K. Agrawal (as he then was) referred the matter to the Full Bench.
11.The Full Bench of the Madurai Bench of this Court in K.Arockiyaraj v. The Chief Judicial Magistrate (W.P.(MD) Nos.11078 of 2011, 7155 of 2012 and 4525, 9833 of 2013 dated 27.08.2013) has held that the term District Magistrate as used in Section 14 of the SARFAESI Act would mean only an Executive Magistrate and not a District Magistrate. Thus, the Full Bench reversed the view taken by the earlier Division Bench in Indian Overseas Bank v. Sree Aravindh Steels Ltd., (cited supra), wherein, the Division Bench had held that the term District Magistrate as employed in Section 14 of the SARFAESI Act would mean only the Chief Judicial Magistrate. However, the Full Bench did not say anything about the view taken in the said case that the term District Magistrate as employed in Section 68(4) of the Wakf Act would mean only an Executive Magistrate. Thus, the Full Bench has impliedly overruled the judgement in A.K.Kalifullah v. M.Abdul Khader and Another (cited supra).
12.Thus, now, there are three judgements on this subject under Section 68(4) of the Wakf Act. The Division Bench presided over by the Hon'ble Ms. Justice K.Suguna in A.K.Kalifullah v. M.Abdul Khader and Another (cited supra) has held that the term First Class Magistrate as used in Section 68(4) of the Wakf Act would mean only a Judicial Magistrate. The earlier view taken in Indian Overseas Bank v. Sree Aravindh Steels Ltd., (cited supra) by yet another Division Bench presided over by the Hon'ble Mr.Justice Elipe Dharma Rao was that the term First Class Magistrate used in Section 68(4) of the Wakf Act would mean only an Executive Magistrate and not Judicial Magistrate.
13.The Full Bench presided over by the Hon'ble Mr.Justice N.Paul Vasanthakumar has taken the view that the earlier term District Magistrate without qualifying the word Magistrate would mean an Executive Magistrate, because, there is no element of adjudication and the act is purely administrative in nature.
14.From the Full Bench judgement, it is crystal clear that the judgement in A.K.Kalifullah v. M.Abdul Khader and Another (cited supra) stands impliedly overruled and the same has lost his life. Therefore, as per the judgements of this Court as referred to above, the term Magistrate as employed in Section 68(4) of the Act would mean only an Executive Magistrate and not the Judicial Magistrate.
15.Because there were conflicting views taken by various Courts, while interpreting the unamended provision of Section 68 of the Wakf Act, the Parliament thought it fit to amend Section 68 of the Wakf Act so as to remove the ambiguity, if any.
16.Now, as per the Wakf Act, 2013, dated 20.09.2013, Section 68 has been amended and after the amendment, the words Magistrate of First Class, Magistrate and Sub Divisional Magistrate shall be deleted and the same shall be substituted by the words District Magistrate, Additional Magistrate or their equivalent. This amendment has been made only to remove the ambiguity so as to declare once for all that the term Magistrate referred to in Section 68 of the Wakf Act indicates only Executive Magistrate and not Judicial Magistrate.
17.Thus, as has been held by the Full Bench of this Court, the term District Magistrate as employed in Section 64 of the Act, refers only to the Executive Magistrate. As such, no judicial Magistrate has got any power under Section 68 of the Wakf Act to pass any order.
18.The party aggrieved has to approach only the appropriate Executive Magistrate for relief. In such view of the matter, I am inclined to quash the proceedings in C.C.No.764 of 2009 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai.
19.The learned counsel for the respondent would submit that liberty may be given to the Wakf to approach the Executive Magistrate for necessary relief.
20.In my considered opinion, whoever is the present Mutawalli of the Wakf will be entitled to approach the Executive Magistrate Court provided, he has got legal right to do so.
21.In the result, the Criminal Original Petition is allowed and the case in C.C.No.764 of 2009 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai is quashed.
25.11.2014 jbm To
1.The State represented by Inspector of Police, Tirupathur Town Police, Vellore District.
2.The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU,J jbm Crl.OP No.13252 of 2009 26.11.2014