Madras High Court
S.Akbar Ali vs The District Collector on 21 December, 2018
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2018
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.11732 of 2018
and
W.M.P(MD)Nos.10661, 13892 and 19916 of 2018
S.Akbar Ali ... Petitioner
Vs.
1.The District Collector,
Pudukkottai District,
Pudukkottai.
2.The Revenue Divisional Officer,
Aranthangi,
Pudukkottai District.
3.K.R.A.Syed Mohamed ... Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, to
issue a writ of Certiorari, to call for the records relating to the impugned
order made by the second respondent in Proc.No.2356 of 2018, dated
18.05.2018 and quash the same.
For Petitioner : Mr.Mohamed Ibram Saibu
For RR 1 & 2 : Mr.C.M.Marichelliah Prabhu,
Additional Government Pleader.
For R – 3 : Mr.S.Sukumar
http://www.judis.nic.in
2
ORDER
The impugned order, dated 18.05.2018 in Proceeding No.2356 of 2018, passed by the second respondent, is said to be challenged in the present Writ Petition, wherein the second respondent in his proceedings above mentioned directed the members of the removed committee to hand over charge and possession of the records, accounts and properties (including cash) within 15 days from the date of receipt of the order, failing which, proceedings under Section 68(3) of the Wakf Act, which provides for imprisonment for a term of six months or with fine, would be initiated. Challenging the same, the present Writ Petition has been filed.
2. The claim of the petitioner one S.Akbar Ali, President of Mohideen Andavar Jumma Pallivasal, Rathinakottai, contends that Mohideen Andavar Jumma Pallivasal, Rathinakottai is a private wakf established by the Jamaththars and has been used for religious purpose, purely on charitable basis, which is not an institution under the Wakf Board initially. The said Pallivasal is administered and managed by the committee comprising of 7 members including a President, Secretary and a treasurer, who are selected among the committee every three years in the general body of Jamath. In the same manner, the petitioner claims that the petitioner and six other members were selected by the people of that Jamath in the year 2016 and the tenure of office is valid upto June, 2019.
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3. The petitioner further submits that one of the earlier members, who indulged in maladministration, was defeated in the selection in the earlier tenure, approached the Wakf Board to declare the mosque under the Wakf under Section 6 of the Wakf Act, 1995.
4. It is further alleged that the board also without issuing any notice to the interested parties and following even minimum principles of natural justice, registered the petitioner's mosque as Wakf under Section 6 of the Wakf Act on 21.12.2015. The third respondent herein taking advantage of the said Registration attempted to interfere in the administration of the petitioner's committee, which forced the petitioner and other members of the Jamath to approach the Sub-Court, Pudukkottai, seeking to declare the notification of the mosque as a Wakf under the Wakf Act to be a nullity in W.O.P.No.191 of 2016, which is pending disposal in the said Court till date.
5. It is further contended by the petitioner that when the third respondent could not take over the administration of the Wakf, suppressing the pendency of W.O.P.No.191 of 2016, the third respondent filed W.P(MD)No.16193 of 2016 to consider his representation, dated 26.07.2016 for conducting of the election of the administrative committee of the mosque. In the said writ petition, during the admission, the Board http://www.judis.nic.in 4 voluntarily agreed to hold an election and the writ petition was disposed of directing the Board to consider the representation, dated 26.07.2016 within a period of 12 weeks. The petitioner further claims that the petitioner was not made as a party to the writ petition. The petitioner further contends that after a year also, the election Notification was issued by the Board, then only the petitioner came to know the order passed by this Court in earlier W.P(MD)No.16193 of 2016. The petitioner claims that the Wakf Board has got no jurisdiction to hold election for any individual Wakf and he filed W.P(MD)No.23197 of 2017 challenging the election notification, which he withdrew with liberty to agitate the validity of the election before the Wakf Tribunal.
6. That apart, the petitioner also further contended that the officials without holding any election by themselves declared the third respondent as elected and sent for approval of the Board. The Chief Executive Officer of the said Board, who is not the competent authority, had registered the third respondent as elected to administer the mosque. The petitioner contends that as there was no election and the petitioner and other office bearers were administering the Wakf and their period expires only in the year 2019 and when the entire Jamath is in their favour, the third respondent as elected President could not take over the administration. Immediately, the third respondent preferred a representation to the second respondent requesting the second http://www.judis.nic.in 5 respondent to take possession of the Management and other records and handover the same to the third respondent.
7. Thereafter, the third respondent had filed W.P(MD)No.10787 of 2018 seeking a direction to the second respondent to invoke powers under Section 68 of the Wakf Act, 2013, by considering his representation, dated 28.04.2018, in which, the petitioner also claims that he was not made as a party and the said writ petition was ordered on 09.05.2018, directing the second respondent to consider the representation of the third respondent within one week of the said order. Thereafter, the present impugned order came to be passed, which is under challenged in the present writ petition on the ground that Section 68 of the Wakf Act, 1995, empowers a Magistrate of first class to exercise powers and to pass an order directing to remove Muthavalli and to hand over charge and possession of the records to the successors of the committee.
8. The second respondent, the Revenue Divisional Officer, has filed a counter-affidavit stating that the election came to be conducted as per the direction of this Court in W.P(MD)No.16193 of 2016. As a result of the election, the third respondent came to be elected as President and the same was affirmed by the proceedings of the Wakf Board in Na.Ka.No. 11795/16/AAS/Pudugai, dated 19.04.2018. Subsequently, the third http://www.judis.nic.in 6 respondent also filed W.P(MD)No.10787 of 2018 seeking for a direction to invoke powers under Section 68 of the Wakf Act, 2013 and this Court by order dated 09.05.2018, directed the authorities to consider the same within a week. Hence, the present writ petition has been filed challenging the order of the second respondent passed under Section 68(3) of the Wakf Act, 2013. The second respondent also claimed that after the amendment to the Wakf Act, 1995, pertaining to powers under Section 68 of the Wakf Act, 2013, the Executive Magistrate reforms the power to pass order under Section 68(2) of the Wakf Act. Under these circumstances, the second respondent prayed for dismissal of the writ petition.
9. The third respondent also filed a counter-affidavit detailing the manner in which he was elected by following the proper procedures.
10. Heard the learned counsel appearing on either side and perused the materials available on record.
11. The learned counsel appearing for the petitioner drew the attention of this Court with regard to Section 68 of the Wakf Act, 1995 and its power conferred on the second respondent. To substantiate his claim that under Section 68 of the Wakf Act, 1995, which originally stood before amendment empowered a Magistrate of first class to exercise http://www.judis.nic.in 7 power under Section 68 of the Wakf Act, 1995 and the learned counsel vehemently contended that the power under Section 68(2) of the Wakf Act can only be exercised by Judicial Magistrate and not by an Executive Magistrate. The second respondent is being an Executive Magistrate has no jurisdiction to pass orders under the said provisions and the impugned order has to be set aside.
12. To substantiate his case, the learned counsel appearing for the petitioner relied upon the Judgment of the Division Bench of this Court in A.K.Kalifullah Vs. M.Abdul Kadar and another reported in 2013 (2) CTC 839 and drew the attention of this Court to paragraph Nos.12, 13 and 15 of the said Judgment and the same reads as follows:-
“12.Now, the issue to be decided, in this case, is whether the term “Magistrate” which occurs under Section 68(2) of the Act would refer to “Judicial Magistrate” or “Executive Magistrate”. Admittedly, the term use under the relevant section would refer to “Magistrate of First Class”. As far as classification of these Magistrate is concerned, it can be only with reference to the Judicial Magistrate and not with reference to Executive Magistrate and as rightly pointed out by the learned counsel for the respondents, this can be seen from Section 11 of the Code of Criminal procedure of 1973. Apart from this, a perusal of Section 68(2) of the Act also reveals that the functions to be performed by the Magistrate, on receipt of a complaint are, http://www.judis.nic.in 8 to issue notice and pass an order directing delivery of charge or possession of records, accounts and properties of the Wakf to the successor Muthawalli or the Committee as the case may be, within a stipulated time. As far as this is concerned, when as per the statue, those functions can be done only by the Judicial Magistrate, in our opinion, the question holding the same as administrative in nature as there is no penal provision and therefore, it has to be construed only as “Executive Magistrate”, is totally unsustainable.
13. Apart from the above, even with regard to the penal provision, as rightly pointed out by the learned counsel for the respondent, in the event of failure on the part of individual concerned under Section 68(3) of the Act, action can be initiated. Apart from this, as far as Section 61 of the Act is concerned, it deals with penalties. Under Clause 4 of the Section, there is a specific mention that no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under this Act. As pointed out earlier. For the dis-obedience of the orders to be passed under Sections 68(2) & 68(3) of the Act, when there is a specific mention that punishment can be imposed only by a Court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class, question of saying that the term used “Magistrate of First Class” indicates only the “Executive magistrate” does not arise at all.
14.............
15. As far as the argument of the learned Counsel for the Petitioners, relying on Tamil Nadu Hindu Religious & http://www.judis.nic.in Charitable Endowments Act, 1959 and various other similar 9 provisions that under similar circumstances, power is given only to the Executive Magistrate and not to Judicial Magistrate is concerned, if in the opinion of these petitioners, such power is exercisable only by an Executive Magistrate, the remedy open to them is to challenge the provision under Section 68(2) of the Act. But, as far as these Criminal Original Petitions are concerned, what is under challenge is only a complaint given by the private respondents on the ground of jurisdiction. When there is no ambiguity under Section 68(2) of the Act, since the term used therein is “Magistrate of First Class” and when such a classification can only be with reference to “Judicial Magistrate”, we are of the view that the term “Magistrate” used under Section 68(2) of the Act is only with reference to “Judicial Magistrate” and not with reference to “Executive Magistrate”.
13. The learned counsel appearing for the third respondent contended that the powers conferred under Section 68(3) of the Wakf Act, 1995 was subsequently amended and the word 'Magistrate' occurring in Section 68(3) would refer only to a Executive Magistrate and the order passed by the second respondent is well within the purview under the Act and the order has to be sustained. In support of his argument, the learned counsel relied on the Judgment of this Court in Janab Malang Nisar Ahmed and others Vs. P.Hafeezan Rahman reported in 2015 (1) MLJ (Crl) 108.
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14. On perusal of the entire records and the arguments putforth by the respective learned counsels, it could be seen that the petitioner, who claims to be the President of Mohideen Andawar Jumma Pallivasal, is well aware that the Pallivasal was brought under the Administration of the Wakf Board under Section 6 of the Wakf Act, 1995 as early as on 21.12.2015. The claim of the petitioner that he has challenged the said registration of the said Pallivasal under the Wakf Act in W.O.P.No.191 of 2016 pending disposal cannot empower the Board to order election cannot be sustained.
15. From the records it is seen that the petitioner, who is well aware of the election conducted and the third respondent was elected by the Board, which is not challenged under any judicial proceedings of the Wakf Act, 1995. The Wakf Act provides procedures under Chapter 8 under Section 83 of the Wakf Act, 1995, wherein which any Muthavalli or a person interested in the Wakf or any other person aggrieved by an order under this Act or Rules may make an application before the Tribunal constituted under the Act.
16. When the petitioner has not challenged the very election of the third respondent, by which election, the third respondent has assumed the possession as a President of the Pallivasal, which ought to have been challenged in the manner provided under the said Act. The present order http://www.judis.nic.in 11 which is impugned is nothing but an order and it is an implementation of the order to hand over possession of documents and records to the elected body. It may not be out of place to site Section 68 of the Wakf Act 1995 and discussed the same which has to be reproduced as hereunder:-
“68.Duty of Mutawalli or committee to deliver possession of records etc.- (1) Where any Mutawalli or committee of management has been removed by the Board in accordance with the provisions of this Act, or of any scheme made by the Board, the Mutawalli or the committee so removed from the office (hereinafter in this Section referred to as the removed Mutawalli or committee) shall hand over charge and deliver possession of the records, accounts and all properties of the wakf (including cash) to the successor Mutawalli or the successor committee, within one month from the date specified in the order.
(2) Where any removed Mutawalli or committee fails to deliver charge or deliver possession of the records, accounts and properties (including cash) to the successor Mutawalli or committee within the time specified in sub-
Section (1), or prevents or obstructs such Mutawalli or committee, from obtaining possession thereof after the expiry of the period aforesaid, the successor mutawalli or any member of the successor committee may make an application, accompanied by a certified copy of the order appointing such successor Mutawalli or committee, to any [District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or http://www.judis.nic.in their equivalent] within the local limits of whose jurisdiction 12 any part of the wakf property is situated and, thereupon, such [District Magistrate, Additional District Magistrate, Sub- Divisional Magistrate or their equivalent] may, after giving notice to the removed Mutawalli or members of the removed committee, make an order directing the delivery of charge and possession of such records, accounts and properties (including cash) of the wakf to the successor mutawalli or the committee, as the case may be, within such time as may be specified in the order.
(3) Where the removed mutawalli or any member of the removed committee, omits or fails to deliver charge and possession of the records, accounts and properties (including cash) within the time specified by [any Magistrate] under sub- Section (2), the removed mutawalli or every member of the removed committee, as the case may be, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to eight thousand rupees, or with both.
(4) Whenever any removed mutawalli or any member of the removed committee omits or fails to comply with the orders made by [any Magistrate] under sub-Section (2), [any 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) No order of appointment of the successor mutawalli or committee, shall be called in question in the proceedings before [any Magistrate] under this Section.
(6) Nothing contained in this section shall bar the http://www.judis.nic.in institution of any suit in a competent civil Court by any person 13 aggrieved by any order made under this section, to establish that he has right, title and interest in the properties specified in the order made by [any Magistrate] under sub-Section (2).”
17. On careful reading of Section 68(2) of the Wakf Act and the Judgment referred by the learned counsel appearing for the petitioner in A.K.Kalifullah Vs. M.Abdul Kadar and another reported in 2013 (2) CTC 839 and to the Judgment referred by the third respondent in Janab Malang Nisar Ahmed and others Vs. P.Hafeezan Rahman reported in 2015 (1) MLJ (Crl) 108, this Court is not ready to accept the argument putforth by the learned counsel appearing for the petitioner. It is seen that the case precisely decides with regard to whether term class I Magistrate used under Section 68(2) of the Wakf Act, 1995 means Executive Magistrate or Judicial Magistrate. No doubt, the Division Bench of this Court has come to a conclusion and held that the first class Magistrate referred under Section 68(2) referred only to Judicial Magistrate and not with reference to the Executive Magistrate as the Act stood prior to amendment in 2013.
18. The above said case was decided on 05.09.2012 by the Division Bench of this Court, whereas the amendment Section 68 of the Wakf Act came into force with effect from 20.09.2013, thereby amending Section 68 of the Wakf Act in the following manner. http://www.judis.nic.in 14
19. Section 38's amendment of Section 68 – “38.In Section 68 of the principal Act ,-
(i) In sub-Section (2) for the words “Magistrate of the first class” and “Magistrate”, the words “District Magistrate, Additional District Magistrate, sub-Divisional Magistrate or their equivalent” shall be substituted;
(ii) In sub-Sections (3), (4) and (5) and sub-Section (6) for the words “the Magistrate” the words “any Magistrate” shall be substituted.”
20. From the reading of the above amendment Act, this Court has no hesitation in concurring with the view taken by the learned Judge in the case in Janab Malang Nisar Ahmed and others Vs. P.Hafeezan Rahman reported in 2015 (1) MLJ (Crl) 108 especially in paragraph Nos.17 and 18 and the same reads as follows:-
“17. Now, as per the Wakf Amendment 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” have been deleted and the same have been 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 means only and “Executive Magistrate” and not a “Judicial Magistrate”. http://www.judis.nic.in 15
18. Thus, as has been held by the Full Bench of this Court, the term “District Magistrate” as employed in Section 68 of the Act, refers only to the “Executive Magistrate”. Thus, it is crystal clear that no judicial Magistrate has power under section 68 of the Wakf Act to pass any order. 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.”
21. In view of the above discussions, this Court is of the view that the order passed by the second respondent in terms with Section 68(2) of the Wakf Act, 1995 as amended with effect from 28.09.2013 as the Wakf Amendment Act, 2013 (Act 27 of 2013). As such, the second respondent being an Executive Magistrate is empowered to pass this order. This Court is inclined to sustain the order passed by the second respondent and further directing the petitioner to hand over the charge and possession of records and accounts and properties including case within 15 days from the date of receipt of copy of this order, failing which, the second respondent is further directed to initiate appropriate action against the petitioner invoking his power under Section 68(3) of the Wakf Act, 1995.
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22. In the above stated facts and circumstances, the Writ Petition stands dismissed. No costs. The interim order granted in W.M.P(MD)No.10661 of 2018 stands vacated and closed and other connected Miscellaneous Petitions are also closed.
21.12.2018
Index : Yes / No
Internet : Yes / No
ps
To
1.The District Collector,
Pudukkottai District,
Pudukkottai.
2.The Revenue Divisional Officer,
Aranthangi,
Pudukkottai District.
http://www.judis.nic.in
17
V.BHAVANI SUBBAROYAN,J.
ps
W.P(MD)No.11732 of 2018
21.12.2018
http://www.judis.nic.in