The Managing Committee, Kalan Mosque, Fathekhanpet, Nellore District & Ors. v. The State of A.P & Anr.

Order

Crl.R.C.No. 2110 of 2009 This Revision Case has been filed challenging the order, dated 02-12-2009 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 by name Kalan Mosque, Fathekhanpet, Nellore District (hereinafter referred to as ‘mosque’). He died on 23-06-1967. The Managing Committee was appointed by the A.P. Wakf Board from time to time. While so, the second respondent herein, by name Mohammad Saleem–ur-Rahman, filed an Application on 05-10-2004 requesting to appoint him as Mutawalli as successor of his father late Mohammed Ali Saheb. The Chief Executive Officer, A.P. Wakf Board, appointed him as Mutawalli of Khateeb branch in the place of his father. The Chief Executive Officer of A.P. State Wakf Board also appointed a Managing Committee proceedings No.5/NLR/K/2004, dated 18-12-2005 on the recommendation of the local MLA. Challenging the said appointment of the Managing Committee, the second respondent herein filed W.P.No.3239 of 2007 before this Court. The Managing Committee also filed W.P.No.4571 of 2007 assailing the appointment of the second respondent as Mutawalli. This Court clubbed both the writ petitions and passed a common order, dated 25-04-2007 holding that there is absolutely no basis for the Chief Executive Officer, A.P. State Wakf Board in appointing the Managing Committee of the mosque and that there is

no infirmity or illegality in appointing the second respondent as Mutawalli of the said wakf. Challenging the same the Managing Committee filed W.A.No.788 of 2007 and a Division Bench of this Court by order, dated 05-08-2009 dismissed the Appeal upholding the order passed by the learned 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 2007 before this Court seeking a direction to enable him to assume charge and 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 open for the petitioner therein (second respondent herein) to avail the remedy under Section 68 of the Wakf Act (for short ‘the Act’). Accordingly, the second respondent filed M.C.No.32 of 2007 under Section 68 of the Act seeking a direction to the Managing Committee to hand over charge and possession of the records, accounts and properties including cash of the mosque to him and other consequential reliefs. The learned Magistrate passed the impugned order on 02-12-2009, which reads as follows: “Petitioner present. R-2 present. R-1, 3 to 9 absent. Directions also not complied. Hence, issue NBW against R-1, 3 to 9. Further R-1 to R-9 are directed to hand over the charge to the petitioner and direction given by the Hon’ble High Court in WP No.15368/07, dated 19-07-2007. 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 the second respondent was appointed as Mutawalli of Khateeb Branch and Mouzan branch and therefore, he cannot seek charge of Mutawalli. He has also referred to A.P. Gazette, dated 02-05-1963 issued by the Assistant Director, A.P. State Wakf Board, Hyderabad, wherein it is mentioned that the father of the second respondent was assigned to do khateeb service. The learned counsel also referred to the gazette notification, dated 16-06-2005, issued by the Assistant Secretary, A.P. State Wakf Board, Hyderabad, wherein it is mentioned that the second respondent was appointed as Mutawalli of Khateeb branch in the place of his father late Mohammed Ali Saheb.

5. It is further submitted that challenging the order in W.P.No.3239 of 2007, dated 25-04-2007, the petitioners herein i.e., the Managing Committee filed W.A.No.788 of 2007 and that the Hon’ble Division Bench of this Court passed an interim order, dated 29-11- 2007, directing the parties i.e., the managing committee and also the Mutawalli to make representations to the Wakf Board raising all contentions which may be available to them and the Wakf Board was directed to pass reasoned order, and that in pursuance of the same, the A.P. Wakf Board passed orders on 27-02-2008 rejecting the claim of the second respondent herein and upholding the continuation of the committee to manage the day to day affairs of the wakf institution. It is also submitted that the appointment of the second respondent was cancelled on 27-02-2008 i.e., before the orders were passed in W.A.No.788 of 2007 on 05-08-2009, but the said fact was not brought to the notice of the Hon’ble Division Bench of this Court, while hearing the arguments in W.A.No.788 of 2007. The Managing Committee also filed another W.A.No.636 of 2008 challenging the order passed in W.P.No.15368 of 2007, dated 19-07-2007 and the said Writ Appeal was also dismissed by this Court. It is also submitted that the order passed by the A.P. Wakf Board canceling the appointment of the second respondent as Mutawalli is not challenged till today. It is also submitted that the interim orders passed in W.A.No.788 of 2007 were also 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 by the second respondent in W.P.No.3239 of 2007 in fact became infructuous as he was not the mutawalli by the date of disposal of the said writ petition on 25-04-2007

6. The learned counsel for the second respondent submitted that the term of the Managing Committee was expired on 07- 02-2003 and subsequently there was no extension of term of the Managing Committee. It is also submitted that the services of Mutawalli were terminated by the proceedings of the Executive Officer of 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 the second respondent is that as per the directions of this Court, he approached the Magistrate under Sections 3 and 4 of the Act and the learned Magistrate, after giving opportunity to the respondents- Managing Committee therein, passed orders. It is further submitted that the writ petition filed by the Managing Committee initially was dismissed and the matter was carried in Appeal and the Appeal was also dismissed and the matter has been finally decided in favour of the second respondent and therefore, the Managing Committee has to hand over the charge of the post of mutawalli. It is also submitted that mere filing a Review Petition cannot be a ground to deny the right acquired to the second respondent since he has been successful in all the proceedings. It is also submitted that under sub-section (6) of Section 68 of the Act, if a party is aggrieved by the orders of the Magistrate, they have to approach the Civil Court, but they cannot refuse 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 aggrieved party 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 by any aggrieved person by any order made thereunder. It is also submitted that sub-section (6) of Section 68 does not bar a revision. It is also submitted that when an order has been passed by the Magistrate exercising the powers, such orders can be challenged in revision.

9. In the light of the rival contentions, the only point that arises 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 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 applica- tion, 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 commit- tee omits or fails to comply with the orders made 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).”

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 which evidence 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 a Judicial magistrate of the first class exercising jurisdiction in that area; Sub-section (4) of Section 3 Cr.P.C. reads as follows: “(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters- (a) which involve the appreciation or sifting 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 provisions 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.”

13. A reading of sub-section (3) of Section 68 of the Act makes it clear that if the committee or the removed mutawalli fails to deliver the charge and possession of the records, accounts and the properties within the time specified by the Magistrate under sub- section (2) of Section 68, 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. Thus it is clear that it is an offence to disobey the orders of the Magistrate and such omission or refusal is punishable. Admittedly no procedure has been prescribed in the Act for passing orders under sub-sections (2) and (3) of Section 68 of the Act and when no procedure has been prescribed to deal with the provisions in a special Act, we have to necessarily 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. is comprehensive. That section enjoins that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with "according to the provisions hereinafter contained." To the extent that no valid machinery is set up under the U. P. Panchayat Raj Act for the trial of any particular case, the jurisdiction of the ordinary criminal court under S. 5, Criminal P.C. cannot be held to have been excluded. Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative. Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general 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 Procedure Code are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with.”

15. In this case also, no procedure is prescribed under the provisions 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 ordinary criminal court under section 5 of Cr.P.C. cannot be said to have been excluded. Once it is held that the Code of Criminal Procedure is applicable for the proceedings initiated under Section 68 of the Act, such proceedings cannot be said to be not amenable to the revisional jurisdiction.

16. In view of the above provisions, it is clear that the orders passed by the Magistrate under sub-section (2) of Section 68 can be revised. A reading of the sub-section (6) of Section 68 makes it clear that any person aggrieved by any order made under this section may file a civil suit. However, that does not mean that an order passed under sub-section (2) of Section 68 is not revisable. Accordingly, I hold that the Revision is maintainable.

17. The main contention of the learned counsel for the petitioners is that the second respondent has been appointed as mutawalli of Khateeb branch in the place of his father late Mohammad Ali Saheb. The gazette notification reveals that late Mohammad Ali Saheb was a mutawalli of Khateeb branch and mouzan branch. The learned counsel has referred to a dictionary, wherein it is mentioned that katib means one who preaches. He has also referred to the Concise law Dictionary of P. Ramanatha Aiyar, wherein Mutawalli has been defined as follows: “Mutawalli. The Superintendent or Treasurer of a mosque. An administrator or procurator of any religious or charitable foundation(Mac. Moh. Law) The warden of a mosque or of an endowment. MUTWALLI means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutwalli of a wakf, and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, Sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee, or corporation for the time being managing or administering any wakf or wakf property.”

18. It is also the submission of the learned counsel for the petitioners that the appointment of the second respondent as mutawalli has been cancelled by the A.P. Wakf Board and the said fact was not brought to the notice of the Hon’ble Division Bench of this Court.

19. Admittedly the Review Petition has been pending. A reading of the entire record reveals that the petitioners-Managing Committee did not aver or agitate that the second respondent was only appointed as mutawalli of khateeb branch. On what grounds the petitioners-Managing Committee has been seeking the review of the order in W.A.No.788 of 2007 and whether there are any merits in the Review Petition or not cannot be gone into in this Revision Case. It is for the petitioners-Managing Committee to raise all those grounds while arguing the Review Petition. Admittedly, as on today, the orders passed in W.P.Nos.3239 and 4571 of 2007, dated 25-04-2007 stands confirmed 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 that the 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 the Mutawalli or Committee so removed shall handover charge and deliver possession of the records, accounts and all properties of the wakf to the successor mutawalli or the successor committee within one month from the date specified in the order. Admittedly no date is specified in the impugned order directing the committee to handover charge within specified time. Therefore, the order passed by the learned Magistrate has to be set aside on the technical ground that the said order is not in conformity with sub-section (2) of Section 68 of the Act, which envisages that while passing 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, the Magistrate shall fix specific time i.e., a direction to handover charge within such time as may be specified in the order.

21. The impugned order did not direct the delivery of the charge and possessions of such records, accounts and properties within specified time and thus, in view of not specifying any time, the impugned order is irregular and for non-compliance of the same, no punishment can be awarded under sub-section (3) of Section 68 of the Act and therefore, the same is liable to be set aside. Accordingly, the impugned order is set aside.

22. The issue whether the second respondent is a mutawalli of khateeb branch or mutawalli to manage the wakf property cannot be decided in these proceedings and if the petitioners- Managing Committee is so advised, they may file a suit or initiate any other proceedings for such declaration.

23. Accordingly, the Criminal Revision Case is allowed in part to the extent indicated above setting aside the impugned order, dated dated 02-12-2009 in M.C.No.32 of 2007. The learned Magistrate, after hearing both parties and considering the objections, if any, raised by the petitioners-Managing Committee, may pass appropriate orders, in accordance with law. ___________________ B.CHANDRA KUMAR, J Date: 30-12-2009 YCR