Madras High Court
J.Ajeez vs The Estate Officer on 15 September, 2022
Author: S.S.Sundar
Bench: S.S.Sundar
W.P.No.14788 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
W.P.No.14788 of 2022
and W.M.P.No.13988 of 2022
J.Ajeez ...Petitioner
-Vs-
1.The Estate Officer,
Tamil Nadu Public Premises
(Eviction of Unauthorised Occupants) Act, 1975.
“Wakf House” No.1,
Jaffer Syrang Street,
Vallal Seethakathi Nagar,
Chennai – 600 001.
2.Hereditary Joint Mutawalli,
Syed Rahamattulah,
Hazrath Syed Shaa Meeran Wali Hussaini Qadiri Dargah,
Mosque and Burial Ground (Wakf)
Vilapakkam,
Arcot Taluk – 632 507. ...Respondents
Prayer:- Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of mandamus directing the first respondent to
consider and dispose-off the petitioner's perjury petition dated 25.02.2022
https://www.mhc.tn.gov.in/judis
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W.P.No.14788 of 2022
under Section 340(1) Criminal Procedure Code within a time frame fixed by
this Court.
For Petitioner : Mr.Shaik Mehrunisa
For Respondent – 1 : Mr.Haja Mohideen Gisthi
Standing counsel
For Respondent – 2 : Mr.N.A.Nissar Ahmed
ORDER
This writ petition is filed for issuance of a writ of mandamus directing the first respondent to consider and dispose-off the petitioner's perjury petition dated 25.02.2022 under Section 340(1) of Criminal Procedure Code within a prescribed time frame.
2. Brief facts that are necessary for the disposal as stated in the affidavit filed in support of this petition are as follows:
3. It is the case of the petitioner that he is one of the descendants of the Inamdaar who dedicated his properties for the wakf. From the reading of the affidavit in entirety, the petitioner while admitting that properties have been dedicated for the wakf, claim title to the properties as one of the descendants of Inamdaar. A point to be noted is that the petitioner is also making a rival claim https://www.mhc.tn.gov.in/judis 2/16 W.P.No.14788 of 2022 to the office of the Muthawalli as a descendant of the Inamdaar. As per the title deed No.728 from Inam Fair Register of Vilapakkam, 64.19 acres of land was dedicated for keeping up lights in the masjid (mosque) at Panjapandavarmalai and other services and also for giving meals (food) to fakeer travellers. Though it is stated that it is a service Inam, the grant was to continue so long as the service is continued. Therefore the properties are wakf properties and the descendants of Inamdaar cannot claim proprietary right.
4. It is admitted that the Muthawalli of the wakf after issuing a notice to the petitioner, that the petitioner should remove the encroachment, filed a petition for eviction of petitioner under Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 before the first respondent / The Estate Officer. The first respondent issued a show cause notice to the petitioner and initiated proceedings under Section 4 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975. During the pendency of the proceedings before the first respondent, the writ petitioner herein filed an application under Section 340(1) of Cr.P.C. In the said petition it is alleged that the second respondent in his affidavit before the first respondent has made misleading statements by suppressing material facts of the case. Referring to https://www.mhc.tn.gov.in/judis 3/16 W.P.No.14788 of 2022 the proforma filed by the second respondent before the first respondent, the petitioner submitted that the document produced before the first respondent is incomplete as the same does not contain pages 7 to 11 and it contains only 5 pages. Pointing out that there are certain misleading statements in the communication, the petition was filed with a prayer to charge the second respondent and commit the matter to the concerned Metropolitan Magistrate Court to prosecute the petitioner in Case No.PP/69/VLR/2021 and praying for the following reliefs:-
(a) charge the petitioner and commit the matter to the concerned Metropolitan Magistrate Court to prosecute the petitioner for the act of perjury in his application to implicate falsely to innocent victim.
(b) dismiss the application filed by the petitioner / respondent in Case No.PP/69/VLR/2021 on the file of this Hon'ble Forum with exemplary costs to meet the ends of justice.
(c) Initiate the proceedings of perjury for infringement of rights and harassment by playing fraud with lawful authority of this forum by filing false affidavit and fabricated document.
https://www.mhc.tn.gov.in/judis 4/16 W.P.No.14788 of 2022
5. When the application filed by the petitioner on the file of the first respondent is still pending, the above writ petition is filed for issuance of a writ of mandamus directing the first respondent to dispose of the petitioner's perjury petition dated 25.02.2022 under Section 340(1) of Cr.P.C. This writ petition is opposed by the both the respondents independently. Though respondents 1 and 2 have not filed any counter affidavit, the learned counsels have made elaborate submission by referring to the documents which are available in the typed set filed by the petitioner's counsel.
6. The learned counsel appearing for the second respondent submitted that the enquiry to be conducted under Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, is summary in nature and this Court cannot entertain the application under Section 340(1) of Cr.P.C. The learned counsel referring to Section 195 and 340(1) of Cr.P.C., submitted that the application filed by the petitioner is a vexatious one and designed to interrupt the proceedings. The learned counsel appearing for the second respondent further pointed out that the petitioner has not produced any evidence to prove his lawful possession after admitting that the property in which the petitioner is in possession belongs to the wakf. It is further submitted that there is no scope https://www.mhc.tn.gov.in/judis 5/16 W.P.No.14788 of 2022 for the first respondent to deal with the claim of the petitioner especially when the documents produced by the petitioner himself shows that the petitioner has no defence.
7. During the pendency of the writ petition, the first respondent has passed a final order directing the petitioner to vacate the property after holding an elaborate enquiry. It is to be seen that under the provision of Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 the term “public premises” is defined to include the properties of wakf which vest with wakf board under the Wakf Act. So every property of a wakf can be treated as a public premises. There is no dispute with regard to the jurisdiction of the first respondent.
8. The term “unauthorised occupation” is also defined under Section 2(g) of the Act is as follows:
“2(g) "unauthorised occupation", in relation to any public premises, means the occupation by any person of the public premises without authority for such occupation and includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he https://www.mhc.tn.gov.in/judis 6/16 W.P.No.14788 of 2022 was allowed to occupy the premises has expired or has been determined for any reason whatsoever.”
9. Reading the provisions of the Act, it is clear that the proceedings under the Act are summary in nature and the first respondent has to decide whether a person is in unauthorised occupation of a public premises. In the present case, a finding has been recorded that the premises for which the proceedings have been initiated is a public premises and the petitioner is in unauthorised occupation. Even before the first respondent the petitioner has admitted that he is in possession of the premises without any valid license or agreement or document to show that his possession is lawful. The petitioner's contention that he is also a person entitled to manage the wakf has also been considered. Ultimately the first respondent observed that neither the petitioner is not paying any rent for occupation of the premises nor does the petitioner have any independent right to claim possession over the property of the wakf.
10. Interestingly the petitioner in his affidavit has made statements which are as contrary and mutually destructive. Wakf is a dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the muslim law as pious, religious or charitable. It is not https://www.mhc.tn.gov.in/judis 7/16 W.P.No.14788 of 2022 the case of the petitioner that the property is not dedicated for any pious or religious or charitable purpose. Wakf may also be understood as a trust. It may be possible that a property can be dedicated in favour of members of a family. In such circumstances, the dedication being in favour of named individuals it may be called a private trust. However, in the case of wakf the dedication itself is for pious, religious and charitable, and there is no question of assuming any wakf as a private wakf.
11. Since, the petitioner has filed an application under Section 340(1) of Cr.P.C., this Court has to examine the scope of Section 340(1) of Cr.P.C., and its applicability with a reference to the present case. Section 195 of Cr.P.C., reads as follows:
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.— (1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in https://www.mhc.tn.gov.in/judis 8/16 W.P.No.14788 of 2022 writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to https://www.mhc.tn.gov.in/judis 9/16 W.P.No.14788 of 2022 which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court https://www.mhc.tn.gov.in/judis 10/16 W.P.No.14788 of 2022 according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”
12. For the purpose of this case, to understand the contention of the learned counsel appearing for the petitioner it is relevant to refer to Section 340(1) of Cr.P.C., which reads as follows:
“340. Procedure in cases mentioned in section 195. —(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, https://www.mhc.tn.gov.in/judis 11/16 W.P.No.14788 of 2022 send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.”
13. The term “Court” referred under Section 195 (3) of Cr.P.C., means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared to be a Court for the purposes of this section. Under the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, the first respondent has not been declared to be a Court for the purpose of Section 195 of Cr.P.C. Section 340(1) of Cr.P.C., enables the Court after recording a finding that an inquiry should be made if any offence as referred to in clause (b) of sub section (1) of Section 195 of Cr.P.C., has been committed in or in relation to, any proceeding in that Court as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may record a finding to that effect and make a complaint thereby and send it to the Magistrate of first class having jurisdiction, take sufficient security for appearance of the accused before the Magistrate and bind over any person to appear before the Magistrate. Since the Estate Officer is not designated as a Court, the petition filed under Section 340(1) of Cr.P.C., is not maintainable.
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14. In the present case, the petition filed by the petitioner under Section 340(1) of Cr.P.C., does not find how the offence of perjury is committed. The case of the petitioner regarding filing of incomplete document does not attract any of the offences mentioned in Section 195 of Cr.P.C. In the present case, the document which is alleged to be incomplete is the wakf proforma. From the reading of the proforma the fact that the property is a wakf property is confirmed. From the missing page one may infer that certain wakf properties have been alineated by members of Inamdaar family. That does not mean that the character of properties of wakf has been changed. When the title of properties of wakf is admitted there is no question of petitioner being considered to be in lawful possession merely because he belongs to the family of Inamdaar. Therefore the omission of pages in the proforma even if it is true, it does not give room for any speculation or assertion to treat the property of wakf as a property in the lawful possession of writ petitioner.
15. In that view of the matter, the intention and the object of the petitioner to file a petition under Section 340(1) of Cr.P.C., appears to be for the purpose of dragging on the proceedings so that the wakf will not be in a position to remove encroachment as per the law. When the allegation in the https://www.mhc.tn.gov.in/judis 13/16 W.P.No.14788 of 2022 present case is found to be lacking bona fides, this Court cannot entertain this writ petition under Article 226 of the Constitution of India. This Court will not entertain people like the petitioner whose purpose or motive in approaching the Court is to stall the proceedings or the lawful action initiated by a statutory authority. The case of the petitioner in relation to the property is not based on any material document. Conveniently, the petitioner has come forward with distorted facts by claiming rights to properties of wakf quiet contrary to the documents which are admitted.
16. The object of Section 340(1) of Cr.P.C., is in public interest so that no one dare to approach the Court by committing perjury. The petition is filed by a person who is now claiming title to the property of wakf after admitting that he is unauthorised occupation and that his possession is not on the basis of any valid document of the lease or license. After an order is passed on merits by the Estate Officer directing eviction, he becomes functus officio and the petition filed by the petitioner does not survive. Considering the facts and circumstances of this case, there is no merit in this case. https://www.mhc.tn.gov.in/judis 14/16 W.P.No.14788 of 2022
17. In the result this writ petition stands dismissed as devoid of merits. Since the order of eviction has now been passed and served on the petitioner. It is open to the petitioner to file an appeal before the District Court concerned. No costs. Consequently connected miscellaneous petition is closed.
15.09.2022 cda Index : Yes/No Speaking/Non Speaking order https://www.mhc.tn.gov.in/judis 15/16 W.P.No.14788 of 2022 S.S.SUNDAR. J., cda To
1.The Estate Officer, Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975.
“Wakf House” No.1, Jaffer Syrang Street, Vallal Seethakathi Nagar, Chennai – 600 001.
2.Hereditary Joint Mutawalli, Syed Rahamattulah, Hazrath Syed Shaa Meeran Wali Hussaini Qadiri Dargah, Mosque and Burial Ground (Wakf) Vilapakkam, Arcot Taluk – 632 507.
,W.P.No.14788 of 2022
15.09.2022 https://www.mhc.tn.gov.in/judis 16/16