Madras High Court
Jabar Maideen vs Vallam Jumma Pallivasal on 19 October, 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/10/2006 CORAM: THE HONOURABLE MR.JUSTICE M.JEYAPAUL CRL.R.C.(MD).No.526 of 2006 and M.P.(MD).No.1 of 2006 1.Jabar Maideen 2.M.Kamaludeen ... Petitioners Vs. Vallam Jumma Pallivasal ... Respondent Committee Prayer Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C., praying to call for the records pertaining to the impugned order dated 07.07.2006 made by the learned Judicial Magistrate No.2, Thanjavur in C.M.P.No.4770 of 2005, set aside the impugned order in so far as it relates to the petitioners alone. !For Petitioners .. Mr.S.Nagamuthu ^For Respondent .. Mr.T.Lajapathi Roy :ORDER
The revision is directed against the impugned order dated 07.07.2006 made by the learned Judicial Magistrate No.2, Thanjavur in C.M.P.No.4770 of 2005.
2. The petitioners figure as respondents 1 and 7 in C.M.P.No.4770 of 2005 filed by the respondent herein under Section 68 of the Wakf Act, 1995. The petitioners were the erstwhile Board of Trustees of Vallam Jumma Pallivasal Committee. The Wakf Board conducted election for electing 9 members as Board of Trustees on 10.04.2005. 9 persons were elected as Trustees in the election conducted by the respondent. B.S.Bawajan was elected as President and Dawood Batcha was elected as Secretary in the meeting of the newly elected Board of Trustees held on 26.04.2005. The election was also duly intimated to the Wakf Board and the Wakf Board also confirmed, accepted and recognised the newly elected office bearers. As per the provisions of Section 68 of the Wakf Act, 1995, the previous Mutawalli or Committee of Management is bound to hand over the charge and deliver possession of the records, accounts and all properties of the Wakf (including cash) to the Successor Mutawalli or Committee of Management within one month. After assuming office, the present committee approached the petitioners to hand over the records. But they refused to hand over the possession of the records, even after the expiry of one month period. With the aforesaid contentions, the respondent filed the petition before the learned Judicial Magistrate No.2, Thanjavur for necessary direction to hand over the records as contemplated under Section 68 of the Wakf Act, 1995.
3. The petitioners herein contended that a suit had already been filed before the Principal Sub Court and Wakf Tribunal, Thanjavur against the respondent. Further, the petitioners submitted that they did not have any records, accounts or movable properties in their custody. The petitioners finally contended that the application under Section 68 of the Wakf Act, 1995 filed by the respondent was defective in all respects and was also devoid of merits.
4. The learned counsel for the petitioners would submit that the authority contemplated under Section 68 of the Wakf Act, 1995 is only the Executive Magistrate for the purpose of making an order directing the delivery of charge and possession of the records, accounts and the properties (including cash) of the Wakf to the successor Mutawalli or Committee as the case may be. Referring to Section 61 of the Wakf Act, 1995, the learned counsel for the petitioners would further submit that the offence punishable alone will have to be taken cognizance of by the Court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class concerned. Therefore, the Executive Magistrate should have been approached first by the respondent herein seeking relief under Section 68 of the Wakf Act, 1995.
5. The learned counsel for the respondent would vehemently contend that as Section 68 of the Wakf Act, 1995 contemplates formulation of some decision by the Magistrate, it will have to be construed that what has been meant under Section 68 of the Wakf Act, 1995 is only the powers of the Judicial Magistrate and not the Executive Magistrate. The punishment for non compliance of the direction issued by the Judicial Magistrate has also been contemplated under Section 68 of the Wakf Act, 1995. Referring to Section 3(32) of the General Clauses Act, 1897, the learned counsel for the respondent would submit that the term "Magistrate" shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure. The learned Judicial Magistrate No.2, Thanjavur has rightly entertained the application and the relief prayed for has also been granted, he would further contend.
6. The petition has been moved before the learned Judicial Magistrate No.2, Thanjavur by the Vallam Jumma Pallivasal Committee under Section 68 of the Wakf Act, 1995, seeking a direction to the erstwhile members of the Committee to deliver possession of the records.
7. It is relevant to refer to the entire provision under Section 68 of the Wakf Act, 1995, which reads as follows:
"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 Magistrate of the first class within the local limits of whose jurisdiction any part of the wakf property is situated and, thereupon, such Magistrate 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 the 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 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) No order of appointment of the successor mutawalli or committee, shall be called in question in the proceedings before the Magistrate under this section.
(6) Nothing contained in this section shall bar the institution of any suit in a competent Civil Court by any person 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 the Magistrate under sub-section (2)."
8. The Mutawalli or the Committee, which has been removed by the Board, has been directed to hand over the charge and deliver possession of the relevant records within one month from the date specified in the order. The successor Mutawalli or any member of the successor Committee has every authority to move any jurisdiction Magistrate of the first class, if the charge was not handed over for making an order directing the delivery of charge and possession of the records. Then, punishment, which may extend to six months, also is contemplated, if the delivery of charge or possession of the records, as directed by the Magistrate of the first class, was not complied with by the successor Mutawalli or any member of the removed Committee. Compulsory taking over the charge and possession of records with the police aid also is provided thereunder. Institution of any suit to establish the right title and interest in the properties in dispute in a competent civil Court has been left open.
9. The extract of Section 3 of the Code of Criminal Procedure, which reads as follows, would be of great assistance to decide the disputed point for determination:
"3.Construction of references:- (1) In this Code,-
(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,-
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class, shall, in relation to an are outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(c) any reference to a Magistrate of the first class shall,-
(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area;
(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area;
(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.
(2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area.
(3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code,-
(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class;
(b) to a Magistrate of the second class or of the third class, shall be construed as a reference to a Judicial Magistrate of the second class;
(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate;
(d) to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area.
(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters-
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provision of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
10. The moment a certified copy of the order appointing the successor Mutawalli or Committee is produced seeking necessary direction to the jurisdiction Magistrate of the first class, the latter is bound to make an order directing the delivery of charge and possession of the records to the successor Mutawalli or the Committee. No appreciation or shifting of evidence is contemplated in the aforesaid proceedings of the jurisdiction Magistrate of the first class contemplated under Section 68 of the Wakf Act, 1995. Further, the formulation of decision does not expose the erstwhile Mutawalli or Committee to any punishment or penalty. It is only the non-compliance of the direction issued by the jurisdiction Magistrate of the first class which invites punishment with imprisonment for a term, which may extent to six months or with fine or with both. If the functions exerciseable by a Magistrate relates to administrative or executive in nature, then the same will have to be exercised only by an Executive Magistrate, as per the above provision of law.
11. More clarity is found in the provision of Section 61 of the Wakf Act, 1995, which deals with penalties for the various offences committed under the said Act. Therefore it is pertinent to refer to the provision of Section 61 of the Wakf Act, 1995, which reads as follows:
" Penalties:- (1) If a mutawalli fails to-
(a) apply for the registration of a wakfs;
(b) furnish statements of particulars or accounts or returns as required under this Act;
(c) supply information or particulars as required by the Board;
(d) allow inspection of wakf properties, accounts, records or deeds and documents relating thereto;
(e) deliver possession of any wakf property, if ordered by the Board or Tribunal;
(f) carry out the directions of the Board,
(g) discharge any public dues; or
(h) do any other act which he is lawfully required to do by or under this Act, he shall, unless he satisfies the Court or the Tribunal that there was reasonable cause for his failure, be punishable with fine which may extend to eight thousand rupees.
(2) Notwithstanding anything contained in sub-section (1), if-
(a) a mutawalli omits or fails, with a view to concealing the existence of a wakf, to apply for its registration under this Act,-
(i) in the case of a wakf created before the commencement of this Act, within the period specified therefor in sub-section (8) of section 36;
(ii) in the case of any wakf created after such commencement, within three months from the date of the creation of the wakf; or
(b) a mutawalli furnishes any statement, return or information to the Board, which he knows or has reason to believe to be false, misleading, untrue or incorrect in any material particular, he shall be punishable with imprisonment for a term which may extend to six months and also with fine which may extend to fifteen thousand rupees.
(3) No Court shall take cognizance of an offence punishable under this Act save upon complaint made by the Board or an officer duly authorised by the Board in this behalf.
(4) 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.
(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), the fine imposed under sub-section (1), when realised, shall be credited to the Wakf Fund.
(6) In every case where offender is convicted after the commencement of this Act, of an offence punishable under sub-section (1) and sentenced to a fine, the Court shall also impose such term of imprisonment in default of payment of fine as is authorised by law for such default."
12. It has been very specifically stated that a Metropolitan Magistrate or a Judicial Magistrate of the first class concerned has the power to try the offences punishable under the Wakf Act, 1995. The legislature has intended to distinguish the Magistrate of the first class referred to under Section 68 of the Wakf Act, 1995 and a Metropolitan Magistrate or a Judicial Magistrate of the first class contemplated under Section 61 of the Wakf Act, 1995. When the subject of punishment for the offences committed under the Act is dealt with under the provisions of Section 61 of the Wakf Act, 1995, it has been intended that a Metropolitan Magistrate or a Judicial Magistrate of the first class has the authority to deal with such offences. When the subject of passing an order on production of a certified copy of the order of appointment of successor Mutawalli or Committee is dealt with under Section 68 of the Wakf Act, 1995, it has been intended that any jurisdiction Magistrate of the first class has the authority to issue necessary directions. It is not as if the legislature was not alive to the basic difference between Judicial Magistrate and Magistrate of First Class. The maintenance of the distinction is reflected in Section 61(4) and Section 68(2) of the Act. If the legislature has intended to entrust the function contemplated under Section 68(2) of the Wakf Act, 1995 to the Judicial Magistrate of the first class, it would have definitely described so unambiguously conspicuous and the difference found incorporated in Section 61(4) and Section 68(2) of the Wakf Act, 1995 will not be there in the statute.
13. If the orders of the Executive Magistrate of the first class passed under Section 68(2) of the Wakf Act, 1995 is not obeyed in letter and spirit, then it becomes an offence punishable under Section 68(3) of the said Act. When such a disobedience on the part of the erstwhile Mutawalli or the committee becomes punishable under Section 61(3) and 61(4) of the said Act, the Board or the officer duly authorised by the Board has the authority to approach a Metropolitan Magistrate or a Judicial Magistrate of the first class concerned to try the offence and punish the violator of the order.
14. The definition given under Section 3(32) of the General Clauses ACt for the term "Magistrate" will apply only in a case, where there is nothing repugnant in the subject or context in the relevant Act. As already pointed out the conjoint reading of Section 68 and Section 61 of the Wakf Act, 1995 would indicate that the Executive Magistrate of the first class has the power to pass an administrative order, directing the delivery of charge and possession of records to the successor Mutawalli or the Committee. Any violation of such order, which is punishable under Section 68(3) of the said Act shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the first class on a complaint made by the Board or an officer duly authorised by the Board.
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.
16. In view of the above, the order under challenge passed by the learned Judicial Magistrate No.2, Thanjavur in C.M.P.No.4770 of 2005 stands set aside and this Criminal Revision Case is allowed accordingly. Consequently, connected M.P.No.1 of 2006 is closed.
sml To The Judicial Magistrate No.2, Thanjavur.