CRLRC/2110/2009 of The Managing Committee, Vs The State of Andhra Pradesh, on 30 December 2009

ORDER:

Crl.R.C.No. 2110 of 2009

This Revision Case has been filed challenging the order, dated02-12-2009 in M.C.No.32 of 2007 on the file of the II Additional Judicial Magistrate of First Class, Nellore.

2. The brief facts of the case are as follows:

One Sri Mohammad Ali Saheb was the Mutawalli of a wakf byname Kalan Mosque, Fathekhanpet, Nellore District (hereinafterreferred to as ‘mosque’). He died on 23-06-1967. The ManagingCommittee was appointed by the A.P. Wakf Board from time to time. While so, the second respondent herein, by name MohammadSaleem–ur-Rahman, filed an Application on 05-10-2004 requesting toappoint him as Mutawalli as successor of his father late MohammedAli Saheb. The Chief Executive Officer, A.P. Wakf Board, appointedhim as Mutawalli of Khateeb branch in the place of his father.

The Chief Executive Officer of A.P. State Wakf Board alsoappointed a Managing Committee vide proceedingsNo.5/NLR/K/2004, dated 18-12-2005 on the recommendation of thelocal MLA. Challenging the said appointment of the ManagingCommittee, the second respondent herein filed W.P.No.3239 of 2007before this Court. The Managing Committee also filed W.P.No.4571 of 2007 assailing the appointment of the second respondent asMutawalli. This Court clubbed both the writ petitions and passed acommon order, dated 25-04-2007 holding that there is absolutely nobasis for the Chief Executive Officer, A.P. State Wakf Board inappointing the Managing Committee of the mosque and that there isno infirmity or illegality in appointing the second respondent asMutawalli of the said wakf. Challenging the same the ManagingCommittee filed W.A.No.788 of 2007 and a Division Bench of thisCourt by order, dated 05-08-2009 dismissed the Appeal upholding the order passed by thelearned single Judge. Challenging the same, the petitioners-Managing Committee filed a review petition and the same is pending.

2. The second respondent filed W.P.No.15369 of 2007before this Court seeking a direction to enable him to assume chargeand to manage the affairs of the wakf and this Court through the order,dated 19-07-2007, disposed of the writ petition observing that it is openfor the petitioner therein (second respondent herein) to avail theremedy under Section 68 of the Wakf Act (for short ‘the Act’). Accordingly, the second respondent filed M.C.No.32 of 2007 underSection 68 of the Act seeking a direction to the Managing Committeeto hand over charge and possession of the records, accounts andproperties including cash of the mosque to him and otherconsequential reliefs. The learned Magistrate passed the impugnedorder on 02-12-2009, which reads as follows:

“Petitioner present. R-2 present. R-1, 3 to 9 absent. Directions alsonot complied. Hence, issue NBW against R-1, 3 to 9. Further R-1 toR-9 are directed to hand over the charge to the petitioner anddirection given by the Hon’ble High Court in WP No.15368/07, dated19-07-2007. Call on 09-12-2009.”

Aggrieved by the said order, the petitioners-Managing Committee filed this Revision Case.

4. The learned counsel for the petitioners submitted that thesecond respondent was appointed as Mutawalli of Khateeb Branch

and Mouzan branch and therefore, he cannot seek charge ofMutawalli. He has also referred to A.P. Gazette, dated 02-05-1963issued by the Assistant Director, A.P. State Wakf Board, Hyderabad,wherein it is mentioned that the father of the second respondent wasassigned to do khateeb service. The learned counsel also referred tothe gazette notification, dated 16-06-2005, issued by the AssistantSecretary, A.P. State Wakf Board, Hyderabad, wherein it is mentionedthat the second respondent was appointed as Mutawalli of Khateebbranch in the place of his father late Mohammed Ali Saheb.

5. It is further submitted that challenging the order inW.P.No.3239 of 2007, dated 25-04-2007, the petitioners herein i.e., theManaging Committee filed W.A.No.788 of 2007 and that the Hon’bleDivision Bench of this Court passed an interim order, dated 29-11-2007, directing the parties i.e., the managing committee and also theMutawalli to make representations to the Wakf Board raising allcontentions which may be available to them and the Wakf Board wasdirected to pass reasoned order, and that in pursuance of the same,the A.P. Wakf Board passed orders on 27-02-2008 rejecting the claimof the second respondent herein and upholding the continuation of thecommittee to manage the day to day affairs of the wakf institution. It isalso submitted that the appointment of the second respondent wascancelled on 27-02-2008 i.e., before the orders were passed inW.A.No.788 of 2007 on 05-08-2009, but the said fact was not broughtto the notice of the Hon’ble Division Bench of this Court, while hearingthe arguments in W.A.No.788 of 2007. The Managing Committee alsofiled another W.A.No.636 of 2008 challenging the order passed inW.P.No.15368 of 2007, dated 19-07-2007 and the said Writ Appealwas also dismissed by this Court. It is also submitted that the orderpassed by the A.P. Wakf Board canceling the appointment of thesecond respondent as Mutawalli is not challenged till today. It is alsosubmitted that the interim orders passed in W.A.No.788 of 2007 werealso not brought to the notice of the Hon’ble Division bench in W.A.No.636 of 2008. It is also submitted that the writ petition filed bythe second respondent in W.P.No.3239 of 2007 in fact becameinfructuous as he was not the mutawalli by the date of disposal of thesaid writ petition on 25-04-2007

6. The learned counsel for the second respondentsubmitted that the term of the Managing Committee was expired on 07-02-2003 and subsequently there was no extension of term of theManaging Committee. It is also submitted that the services ofMutawalli were terminated by the proceedings of the Executive Officerof A.P. Wakf Board in Proceedings No.B3/16/NLR/2004, dated 13-04-2007 and the said order was challenged in W.P.No.8813 of 2007,which was suspended by this Court through the order, dated 26-04-2007 in W.P.M.P.No.11281 of 2007 and the writ petition is pending.

7. The main contention of the learned counsel for thesecond respondent is that as per the directions of this Court, heapproached the Magistrate under Sections 3 and 4 of the Act and thelearned Magistrate, after giving opportunity to the respondents-Managing Committee therein, passed orders. It is further submittedthat the writ petition filed by the Managing Committee initially wasdismissed and the matter was carried in Appeal and the Appeal wasalso dismissed and the matter has been finally decided in favour of thesecond respondent and therefore, the Managing Committee has tohand over the charge of the post of mutawalli. It is also submitted thatmere filing a Review Petition cannot be a ground to deny the rightacquired to the second respondent since he has been successful in allthe proceedings. It is also submitted that under sub-section (6) ofSection 68 of the Act, if a party is aggrieved by the orders of theMagistrate, they have to approach the Civil Court, but they cannotrefuse to handover the charge.

8. The learned counsel for the petitioners submits that sub-section (6) of Section 68 of the Act only enables an aggrievedparty to institute a suit. It only says that nothing contained in this section shall bar the institution of any suit in a competent civil court byany aggrieved person by any order made thereunder. It is alsosubmitted that sub-section (6) of Section 68 does not bar a revision. Itis also submitted that when an order has been passed by theMagistrate exercising the powers, such orders can be challenged inrevision.

9. In the light of the rival contentions, the only point thatarises for consideration is whether the impugned order is sustainable?

10. Section 68 of the Act reads as follows:

“68. Duty of mutawalli or committee to deliver possession ofrecords, etc :-- (1) Where any mutawalli or committee ofmanagement has been removed by the Board in accordance with theprovisions of this Act, or of any scheme made by the Board, themutawalli or the committee so removed from the office (hereinafter inthis section referred to as the removed mutawalli or committee) shallhand over charge and deliver possession of the records, accountsand all properties of the wakf (including cash) to the successormutawalli or the successor committee, within one month from thedate specified in the order.

(2) Where any removed mutawalli or committee fails todeliver charge or deliver possession of the records, accounts andproperties (including cash) to the successor mutawalli or committeewithin the time specified in sub-section (1), or prevents or obstructssuch mutawalli or committee, from obtaining possession thereof afterthe expiry of the period aforesaid, the successor mutawalli or anymember of the successor committee may make an applica- tion,accompanied by a certified copy of the order appointing suchsuccessor mutawalli or committee, to any Magistrate of the firstclass within the local limits of whose jurisdiction any part of the wakfproperty is situated and, thereupon, such Magistrate may, after givingnotice to the removed mutawalli or members of the removedcommittee, make an order directing the delivery of charge andpossession of such records, accounts and properties (including cash)of the wakf to the successor mutawalli or the committee, as the casemay be, within such time as may be specified in the order.

(3) Where the removed mutawalli or any member of theremoved committee, omits or fails to deliver charge and possessionof the records, accounts and properties (including cash) within thetime specified by the Magistrate under sub-section (2), theremoved mutawalli or every member of the removed committee, as the case may be, shall be punishable with imprisonment for a termwhich may extend to six months or with fine which may extend toeight thousand rupees, or with both.

(4) Whenever any removed mutawalli or any member of theremoved commit- tee omits or fails to comply with the orders madeby the Magistrate under sub-section (2), the Magistrate mayauthorise the successor mutawalli or committee to take charge andpossession of such records, accounts, properties (including cash)and may authorise such person to take such police assistance asmay be necessary for the purpose.

(5) No order of appointment of the successor mutawalli orcommittee, shall be called in question in the proceedings before theMagistrate under this section.

(6) Nothing contained in this section shall bar the institutionof any suit in a competent civil court by any person aggrieved by anyorder made under this section, to establish that he has right, title andinterest in the properties specified in the order made by theMagistrate under sub-section (2).”

11. The term ‘judicial proceedings” has been defined under section 2 (i) of Cr.P.C. which is as follows:

“Judicial Proceeding” includes any proceeding in the course of whichevidence is or may be legally taken on oath;

12. Section 3 (1)(c)(ii) of Cr.P.C. reads as follows:

(c) any reference to a Magistrate of the first class shall,--

(ii) in relation to any other area, be construed as a refence to aJudicial magistrate of the first class exercising jurisdiction in thatarea; Sub-section (4) of Section 3 Cr.P.C. reads as follows:

“(4) Where, under any law, other than this Code, the functionsexercisable by a Magistrate relate to matters-

(a) which involve the appreciation or sifting of evidence or theformulation of any decision which exposes any person to anypunishment or penalty or detention in custody pending investigation,inquiry or trial or would have the effect of sending him for trial beforeany court, they shall, subject to the provisions of this Code, beexercisable 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, theyshall, subject as aforesaid, be exercisable by an ExecutiveMagistrate.”

13. A reading of sub-section (3) of Section 68 of the Actmakes it clear that if the committee or the removed mutawalli fails todeliver the charge and possession of the records, accounts and theproperties within the time specified by the Magistrate under sub-section (2) of Section 68, the removed mutawalli or every member ofthe removed committee, as the case may be, shall be punishable withimprisonment for a term which may extend to six months or with finewhich may extend to eight thousand rupees, or with both. Thus it isclear that it is an offence to disobey the orders of the Magistrate andsuch omission or refusal is punishable. Admittedly no procedure hasbeen prescribed in the Act for passing orders under sub-sections (2)and (3) of Section 68 of the Act and when no procedure has beenprescribed to deal with the provisions in a special Act, we have tonecessarily refer to the provision of the Cr.P.C. Similar question arose in BHIM SEN v. STATE OF U.P.[[1]], wherein it was observed as follows:

“The jurisdiction of the criminal courts under S. 5, Criminal P.C. iscomprehensive. That section enjoins that all offences under thePenal Code shall be investigated, enquired into, tried and otherwisedealt with "according to the provisions hereinafter contained." To theextent that no valid machinery is set up under the U. P. PanchayatRaj Act for the trial of any particular case, the jurisdiction of theordinary criminal court under S. 5, Criminal P.C. cannot be held tohave been excluded. Exclusion of jurisdiction of a court of generaljurisdiction, can be brought about by the setting up of a court oflimited jurisdiction, in respect of the limited field, only if the vestingand the exercise of that limited jurisdiction is clear and operative.Where, as in this case, there is no adequate machinery for theexercise of this jurisdiction in a specific case, we cannot hold thatthe exercise of jurisdiction in respect of such a case by the Court ofgeneral jurisdiction is illegal.”

14. In KHATRI v. STATE OF BIHAR[[2]], it was held as follows:

“It is apparent from S. 4 that the provisions of the Criminal ProcedureCode are applicable where an offence under the Penal Code or underany other law is being investigated, inquired into, tried or otherwisedealt with.”

15. In this case also, no procedure is prescribed under theprovisions of the Wakf Act for the trial of the offence under sub-section(3) of Section 68 of the Act. Therefore, the jurisdiction of the ordinarycriminal court under section 5 of Cr.P.C. cannot be said to have beenexcluded. Once it is held that the Code of Criminal Procedure isapplicable for the proceedings initiated under Section 68 of the Act,such proceedings cannot be said to be not amenable to the revisionaljurisdiction.

16. In view of the above provisions, it is clear that the orderspassed by the Magistrate under sub-section (2) of Section 68 can berevised. A reading of the sub-section (6) of Section 68 makes it clearthat any person aggrieved by any order made under this section mayfile a civil suit. However, that does not mean that an order passedunder sub-section (2) of Section 68 is not revisable. Accordingly, I holdthat the Revision is maintainable.

17. The main contention of the learned counsel for thepetitioners is that the second respondent has been appointed asmutawalli of Khateeb branch in the place of his father late MohammadAli Saheb. The gazette notification reveals that late Mohammad AliSaheb was a mutawalli of Khateeb branch and mouzan branch. Thelearned counsel has referred to a dictionary, wherein it is mentionedthat katib means one who preaches. He has also referred to theConcise law Dictionary of P. Ramanatha Aiyar, wherein Mutawalli hasbeen defined as follows:

“Mutawalli. The Superintendent or Treasurer of a mosque. Anadministrator or procurator of any religious or charitablefoundation(Mac. Moh. Law)The warden of a mosque or of an endowment.MUTWALLI means any person appointed either verbally or under anydeed or instrument by which a wakf has been created or by a competent authority to be the mutwalli of a wakf, and includes anyperson who is a mutawalli of a wakf by virtue of any custom or who isa naib-mutawalli, khandim, mujawar, Sajjadanashin, amin or otherperson appointed by a mutawalli to perform the duties of a mutawalliand save as otherwise provided in this Act, any person, committee,or corporation for the time being managing or administering any wakfor wakf property.”

18. It is also the submission of the learned counsel for thepetitioners that the appointment of the second respondent as mutawallihas been cancelled by the A.P. Wakf Board and the said fact was notbrought to the notice of the Hon’ble Division Bench of this Court.

19. Admittedly the Review Petition has been pending. Areading of the entire record reveals that the petitioners-ManagingCommittee did not aver or agitate that the second respondent was onlyappointed as mutawalli of khateeb branch. On what grounds thepetitioners-Managing Committee has been seeking the review of theorder in W.A.No.788 of 2007 and whether there are any merits in theReview Petition or not cannot be gone into in this Revision Case. It isfor the petitioners-Managing Committee to raise all those groundswhile arguing the Review Petition. Admittedly, as on today, the orderspassed in W.P.Nos.3239 and 4571 of 2007, dated 25-04-2007 standsconfirmed by the Division Bench of this Court by order, dated 05-08-2009 in W.A.No.788 of 2007. Merely because the petitioners-Managing Committee has filed a Review Petition, it cannot be said thatthe learned Magistrate cannot exercise the powers under sub-section(2) of Section 68 of the Act.

20. Sub-section (1) of Section 68 envisages that theMutawalli or Committee so removed shall handover charge and deliverpossession of the records, accounts and all properties of the wakf tothe successor mutawalli or the successor committee within one monthfrom the date specified in the order. Admittedly no date is specified inthe impugned order directing the committee to handover charge withinspecified time. Therefore, the order passed by the learned Magistrate has to be set aside on the technical ground that the said order is not inconformity with sub-section (2) of Section 68 of the Act, whichenvisages that while passing an order directing the delivery of chargeand possession of such records, accounts and properties (includingcash) of the wakf to the successor mutawalli or the committee, as thecase may be, the Magistrate shall fix specific time i.e., a direction tohandover charge within such time as may be specified in the order.

21. The impugned order did not direct the delivery of thecharge and possessions of such records, accounts and propertieswithin specified time and thus, in view of not specifying any time, theimpugned order is irregular and for non-compliance of the same, nopunishment can be awarded under sub-section (3) of Section 68 of theAct and therefore, the same is liable to be set aside. Accordingly, theimpugned order is set aside.

22. The issue whether the second respondent is amutawalli of khateeb branch or mutawalli to manage the wakf propertycannot be decided in these proceedings and if the petitioners-Managing Committee is so advised, they may file a suit or initiate anyother proceedings for such declaration. 23. Accordingly, the Criminal Revision Case is allowed in partto the extent indicated above setting aside the impugned order, dateddated 02-12-2009 in M.C.No.32 of 2007. The learned Magistrate, afterhearing both parties and considering the objections, if any, raised bythe petitioners-Managing Committee, may pass appropriate orders, inaccordance with law.

Date: 30-12-2009

YCR

___________________

B.CHANDRA KUMAR, J

[2]AIR 1981 SC 1068