Madhya Pradesh High Court
Saiyyad Vajidali vs Shaukatali on 14 March, 2016
1
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
Before Single Bench: Hon'ble Mrs. Justice S.R. Waghmare
M.Cr.C. No.8514/2012
Saiyyad Wajid Ali
.vs.
Shaukat Ali
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Shri Ajay Kanthed, learned Counsel for the petitioner.
Shri Brajesh Garg, learned Counsel for the respondent.
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ORDER
(Passed on 14/03/2016) This petition under section 482 of the Cr.P.C., is filed by the petitioner Saiyyad Wajid Ali being aggrieved by order dated 06/11/2012 passed by the First Additional Sessions Judge, Ratlam in criminal revision no. 193/12 dismissing the revision.
2. Briefly stated, the facts of the case are that the respondent / plaintiff Shaukat Ali had filed an application in the Trial Court before the Chief Judicial Magistrate, Ratlam under Section 68 of the Wakf Act 1995 stating that the present petitioner Saiyyad Wajid Ali was the previous chairman (Mutawali) of the Wakf Darga Dadha Kudha Saiyyad, Mithra Nivas Road,Ratlam and the tenure of the previous committee was over on 25/12/2010 and according to the order dated 03/05/2011 passed by the Bhopal Wakf Board, the new committee was registered at no.2122 dated 05/05/2011 and Shaukat Ali 2 plaintiff was appointed as the chairman (Mutawali)of the new committee. The petitioner Saiyyad Wajid Ali was directed to hand over the charge of the movable and immovable properties belonging to the Wakf Darga Dadha Kudha Saiyyad to Shaukat Ali. However, the petitioner Saiyyad Wajid Ali refused to do so stating that he was only Muzavar and he never was the previous chairman (Mutawali) of the committee and neither there was any committee before 03/05/2011 and hence he was not required to hand over any charge or any property and hence the question of handing over charge does not arise. He urged that the trial Court even refused to conduct preliminary enquiry into the issue under Rule 37 of the M.P. Wakf Rules 2000, as prayed by Saiyyad Wajid Ali. The tenure of ShaukatAli was completed on 02/05/2012 and on completion of one year a new Mutawali Mansoor Ali Patodi was appointed whose tenure was for one year and on completion of one year on application his tenure was extended for one more year. An application was moved by the Committee Chief /Afzal Shah, in which Mansoor Ali Patodi was a member, for making entire executive committee a party to the matter, which was rejected by the Trial Court. The trial Court, therefore, on 04/08/2012 passed the order and allowed the application under Section 68 of the Wakf Act stating that on completion of one year Saiyyad Wajid Ali had to hand 3 over the charge to Shaukat Ali. However being aggrieved a civil revision has been filed by Saiyyad Wajid Ali at no.193/12 and in order dated 06/11/12, the revisional Court upheld the finding of the trial Court that the computation of one year was correct. It held that according to the Wakf Board order, the new committee had been formed on 03.05.2011 and although the year was to be one year, the year was to be computed from the date of taking charge and since the charge had never been handed over by Saiyyad Wajid Ali, the period did not commence and hence the application under Section 68 of the Wakf Act filed by Shaukat Ali was maintainable in this regard.
3. And by the impugned order the revisional Court categorically held that on considering the earlier criminal revision no. 23/12 order dated 14/03/2012 as well as in Cr. Revision nos.105,106/12 vide order dated 30/04/2012, the constitution of the samiti and its legality was considered and similarly considering the section 28 of the Wakf Act, the Court categorically held that the chief executive officer i.e. the Chairman may exercise all or any powers conferred on him by or under this Act with the previous approval of the Board through the Commissioner of the division or the Collector of the district in which the concerned Wakf property is situated and if any powers have been delegated by the Chief 4 Executive Officer it can be done so only with the sanction of the Collector or the Divisional Commissioner and hence the revisional Court upheld that the order passed by the Trial Court and dismissed the revision petition. Hence, being aggrieved by the said order the petitioner has filed the present petition.
4. Counsel for the petitioner has vehemently urged the fact that the petitioner was only a muzavar and not a mutawali and under Section 3(1) of the Wakf Act he had no power to hand over the charge when there was no charge handed over to him or when there was no previous committee and the question of handing over of charge would not arise, which has not been considered by the Trial Court as well as the Revisional Court and prayed for setting aside the orders passed by the Trial Court as well as Revisional Court.
5. Besides as already stated above the petitioner has vehemently opposed the appointment of the new Committee since sanction was not sought from the Commissioner/Collector under Section 28 and till the order was placed for execution before the Collector/S.D.O. under Section 28 there is no question of allowing by the Judicial Magistrate under Section 68 of the M.P. Wakf Act.
6. Counsel for the petitioner relied on the following authorities to bolster his submissions. Relying 5 on Krishnan and another Vs. Krishnaveni and another [AIR 1997 SC 987] Counsel for the petitioner urged that the Apex Court had held that when second revision is filed before the High Court, there is prohibition under Section 379(3) of the Cr.P.C. It would not be applicable when the State seeks revision under Section 401 then the High Court can entertain the revision in case of grave miscarriage of justice or abuse of process of Court etc by exercising inherent powers and supervisory powers under Sections 482 & 483 respectively. Counsel submitted that the present petitioner was not required to handover any charge to the respondent since there is no committee in existence on date of impugned order passed by the trial Court as well as the revisional Court and it is a paramount importance to avoid miscarriage of justice that this Court exercising inherent powers under Section 482 set aside the impugned orders. Relying on Girjesh Mishra v. State of M.P. [1995(II) MPWN Note 55] the Court had held that even if the criminal revision is disposed of by Sessions Court, miscellaneous criminal case would lie on same facts before the High Court under Sections 482 & 397 r/w S.401 of Cr.P.C. And relying on Kailash Chandra v. Sikdar [1996(1) MPWN Note 46] Counsel submitted that when the order of the subordinate Court patently illegal, bar under Sections 397(3) or 399(3) of the Cr.P.C.
6would not operate and the order can be quashed under Section 482 directly by the High Court. Finally relying on Jardar Ali Vs. Wakf Intajamiyan Committee, Khandwa and ors. [2000(2) MPLJ Note 25] Counsel submitted that Sections 63, 64 & 68(2) & (6) of the Wakf Act of 1995 require that the proceedings for removal of person claiming to be in possession of property in capacity of Mutawalli and then an enquiry is provided under Section 64(3) and a reasonable opportunity is to be given to a person whose appointment is disputed under Section 63 and the same has not been done in the present case and Counsel prayed that the impugned order be set aside. And Counsel submitted that the appropriate relief be granted in the present petition also.
7. Per contra, Counsel for the respondent has vehemently opposed the contentions put forth by the Counsel for the petitioner, submitting that the petitioner was involved in anti social activities. According to annexure-8 Muzavar was to be considered as Mutavalli. The application under Order 1 rule10 of the C.P.C filed by the petitioner is itself a mis-conduct since Counsel for Saiyyad Wajid Ali had appeared on behalf of respondent Shaukat Ali in the said proceedings! Documents filed under Section 391 of the Cr.P.C. were without any application of mind and could not be considered. The period of tenure of the respondent / plaintiff Shaukat Ali 7 can be considered only after the handing over of charge by the petitioner Saiyyad Wajid Ali under Section 28 of M.P. Wakf Act, 1995, since the petitioner never handed over the charge to the respondent/plaintiff. The revision filed by the petitioner was dismissed on the grounds of jurisdiction and legality of the provisions of the Act were settled law and Counsel submitted that the matter could not be settled under Section 399(3) of the Cr.P.C and prayed for dismissal of the petition.
8. Counsel for the respondent relying on Haji Moosakhan and others Vs. Madhya Pradesh Wakf Board and others [1995 MPLJ 463] submitted that this Court had considered the case of appointment of petitioner No.1 as Mutawalli of Masjid and constitution of Committee Inizamia Wakf Masjid to manage wakf property for fixed term which expired on 19.5.1990. Wakf Board on 13.03.1991 appointed new committee and directed petitioners to handover charge, petitioners cannot question validity of order on ground that they continued to be mutawalli on expiry of term and could therefore be removed only under Section 63 after proper inquiry. They ceased to be mutawallis on expiry of term and operated thereafter only as 'caretaker' till constitution of new committee. This Court has further held in para 18 thus:
"18. Action of respondent No.1 is thus found to be on firm foundation and 8 deserves to be permitted to prevail. The order Annexure B is thus legal, valid and tenable in law. The period fixed therein is required to be computed from the date of obtaining charge. The order of stay put its operation under 'eclipse'. The order Annexure B is absolute in its terms, absolute in intent and this absolute in efrfect. The exercise of the petitioners is thus inept and insipid. Annexure A foins the plea. I, therefore, hold that petitioners ceased to be Mutawallis after 19-5-1990 and operated thereafter only as 'caretakers' till constitution of new Committee. Section 3(f) or Section 43 thus does not benefit them."
9. Relying on Syed Masood Ali Vs. M.P. Wakf Board [2009(4) M.P.L.J. 646] Counsel further submitted that the Court considered Section 67(1) regarding appointment of new management committee of the Wakf and had held that when the tenure of the Wakf Committee is complete and it was continuing to function without any extension order, the Wakf Board could constitute and appoint the new management committee and in such case, no show cause notice or opportunity of hearing to the earlier Committee is required.
10. Thus in the present petition also when there is no evidence regarding the petitioner Saiyyad Wajid Ali having given over charge to Shaukat Ali, extension would not be required since the time would not start running and the tenure of one year cannot be said to be completed. Counsel submitted that the petitioner was by 9 some or the other excuse delaying handing over the charge to the newly formed committee which is under the Wakf Board. Counsel prayed for dismissal of the present petition since it was without merit.
11. On considering the above submissions, and the impugned orders, I find that there is no merit in the petition primarily because the application under Section 68 of Wakf Act requires that petitioner Saiyyad Wajid Ali handover the charge to the respondent Shaukat Ali since he was the newly appointed Chairman. The appointment is evident from the Annexure P/2 order of the Madhya Pradesh Wakf Board. However, the tenure was for one year or up to fresh orders are passed by the Wakf Board whichever happened earlier. But since the charge has never been handed over as held by the trial Court as well as revisional Court, the time cannot be said to have begun for completion of one years' tenure neither has the Wakf Board passed the order afresh, then in the interest of justice I place reliance on Syed Masood Ali (supra) to hold that the old Management Committee headed by the present petitioner did not have any right or authority either to challenge the constitution of the new committee or to interfere in the affairs of the managing the institution by the new committee. [Also relied on Haji Moosakhan (supra)]. In view of the above, I do not find any perversity in the order of trial Court as well as 10 the revisional Court and this revision petition is bereft of merit. The petition is, therefore, dismissed as such.
CC as per rules.
(Mrs. S.R. Waghmare) Judge sumathi