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Madhya Pradesh High Court · body

2016 DIGILAW 586 (MP)

Mohd. Arif v. Mohd. Arif Raeen

2016-07-20

J.K.MAHESHWARI

body2016
ORDER : Invoking the jurisdiction under section 482 of the Code of Criminal Procedure to assail the order dated 9-2-2015 passed by the Chief Judicial Magistrate, Harda and the order dated 24-6-2015 passed by Additional Sessions Judge, Harda confirming the order of trial Court, this petition has been preferred for setting aside the same. 2. On perusal of the facts as obtaining from the pleadings, it reveals that vide order dated 3-9-2012 of Chairman, M.P. Wakf Board respondent was appointed as mutawalli for a period of one year or until further orders, removing the applicant from the post of mutawalli. Because the charge of mutawalli was not delivered by the removed mutawalli to successor, however, the respondent submitted an application under section 68(2) and (3) of the Wakf Act, 1995. On filing such an application, notice was issued to the removed mutawalli (applicant), whereupon an application under section 61(3) of the Act was filed seeking dismissal of the application of the successor mutawalli (respondent). The said application has been rejected vide order impugned passed by CJM on 9-2-2015, which is confirmed in revision by the Additional Sessions Judge, however, this petition has been preferred by applicant. 3. Learned counsel appearing for the applicant has referred the provisions of section 61(3) of the Act contending that until the complaint is made by the Board or by a person duly authorized by the Board the Magistrate cannot take cognizance for an offence punishable under this Act. In the present case, the complaint has been filed by the successor mutawalli, and not by the Board which is not entertainable. Both the Courts committed error of jurisdiction and also of the procedure as prescribed under the Code of Criminal Procedure, however, prayed to allow the application of the applicant, under section 61(3) of the Act, and the application filed by respondent under section 68(2) and (3) may be dismissed. To buttress his contention, learned counsel has placed reliance on a judgment of this Court in the case of Said-ur-rehman vs. Mohammad Yusuf Khan and another, 2010 (III) MPWN 67 . 4. To buttress his contention, learned counsel has placed reliance on a judgment of this Court in the case of Said-ur-rehman vs. Mohammad Yusuf Khan and another, 2010 (III) MPWN 67 . 4. On the other hand, learned counsel representing respondent has referred the language of section 68(2) of the Act, to contend that on removal of mutawalli or committee by the Wakf Board if the mutawalli or the committee so removed from the office fails to deliver the charge on appointment of successor mutawalli or committee, the application on the instructions of successor mutawalli or any of the member of the committee may be made which is entertainable before any Magistrate First Class, and on direction if removed mutawalli fails to deliver the charge then, as per sub-section (3) of section 68, he may be sent to jail for a period of six months or impose fine or both, however, in the facts of the case the argument of applicability of section 61(3) of the Act is baseless. In view of the aforesaid, it is urged that Judicial Magistrate First Class as well revisional Court have rightly rejected the objection filed by the applicant. Therefore, petition filed by applicant may be dismissed with cost, with further direction to removed mutawalli to deliver the charge, and on failure, trial Court may be directed to send the applicant to jail, as per section 68(3) of the Act. 5. After hearing learned counsel appearing on behalf of both the parties and looking to the facts of this case, the issue involved in the present case is; whether on filing an application under section 68(2) and (3) of the Act by successor mutawalli, the objection under section 61(3) of the Act filed by removed mutawalli may be allowed, to reject the application of successor mutawalli? In this respect to advert the arguments as advanced and to decide the said issue, the provisions as contained under section 68 as well as 61 of the Act are required to be noticed. section 68 of the Act deals with the duty of mutawalli or committee to deliver possession of records. However, the relevant provision of section 68(1)(2) and (3) are reproduced which reads as under : “68. section 68 of the Act deals with the duty of mutawalli or committee to deliver possession of records. However, the relevant provision of section 68(1)(2) and (3) are reproduced which reads as under : “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 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.” Bare perusal of the aforesaid, it is apparent that if any removed mutawalli or committee fails to deliver the charge or to deliver possession of the record, accounts and properties (including cash) to the successor mutawalli or committee within time specified in sub-section (1), or prevents or obstruct such mutawalli or committee, from obtaining possession thereof after expiry of the period as specified in order passed under sub-section (1), the successor mutawalli or any member of the successor committee may make an application, accompanied by a certified copy of the order appointing successor mutawalli or committee, to any Magistrate of the first class within whose local jurisdiction the property of Wakf situates. The Magistrate may direct to deliver the charge within the time so specified in the order. In case removed mutawalli fails to carry out the order passed by the Magistrate then in exercise of the power contained under sub-section (3) removed mutawalli or member of the said committee may be punished with imprisonment for a term which may extend to six months or with fine which may extend to eight thousand rupees, or with both. 6. Section 61 of the Act deals with penalties, which reads as under :— “61. 6. Section 61 of the Act deals with penalties, which reads as under :— “61. 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. (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.” On perusal of the above, it is apparent that if any mutawalli fails to apply for the registration of a wakf or to furnish statements of particulars or accounts or returns as required under this Act; supply information or particulars as required by the Board, allow inspection of wakf properties, accounts, records or deed and documents relating thereto, deliver possession of any wakf property, if ordered by the Board or Tribunal, carry out the direction of the Board, discharge any public dues or do any other act which he is lawfully required to do by or under this Act, he shall, unless 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. Notwithstanding to the duties of mutawalli, if he omits or fails, with a view to concealing existence of the Wakf, to apply for registration as per the contingencies of section 61(2)(1)(a) (i), (ii) or furnishes any statement, return or information to the Board, which he knows or was reason to believe to be false, misleading, untrue or incorrect shall be punishable with imprisonment, as specified. Under sub-section (3) it has been made clear that cognizance cannot be taken by a Court under the Act unless the complaint made by the Board or an officer duly authorized by the Board in this behalf. 7. In addition to the aforesaid verbal meaning, to understand the scope of section 61 and also of section 68 of the Act, it is necessary to know its object and reason to which it is introduced. Both the said sections are in chapter VI which starts from sections 44 to 71, and deals with maintenance of accounts of Wakf. 7. In addition to the aforesaid verbal meaning, to understand the scope of section 61 and also of section 68 of the Act, it is necessary to know its object and reason to which it is introduced. Both the said sections are in chapter VI which starts from sections 44 to 71, and deals with maintenance of accounts of Wakf. Section 44 specifies budget, to which mutawalli of the Wakf is assigned or duty bound to fill up the prescribed forms and to submit the same. Section 45 authorizes to the Chief Executive Officer to prepare budget for every financial year for all the Wakfs in the state. As per section 46, every mutawalli shall keep regular account and submit it to the Board before 1st of May of every year which shall be audited by an officer as required by section 47. On receiving the said audited accounts the Board shall examine the same and pass order on the auditor's report. As per section 50, it shall be the duty of mutawalli to carry out the direction of the Board; to furnish returns and supply information or particulars as may be required time to time; to inspect the wakf properties, accounts, or records, or deeds and documents relating to it; or to discharge any public duty, or act which is lawfully required to be done. 8. Thus, looking to the various sections of the Chapter, it is clear that mutawalli owe certain duties to perform towards the Board. Simultaneously, the Wakfs Board are required to regulate the function of mutawalli, conferring the powers on the Board, i.e. alienation of wakf property is restricted and in case the illegal possession has been given, the action may be taken as per section 52. The Board is also having powers to put restriction on purchase of property on behalf of Wakf, power of removal of encroachment from the wakf property and restrictions to grant lease of Wakf property as specified under sections 53, 54, 55 and 56. In case the duty as specified on the mutawalli towards Board has not been performed and the Board is satisfied for not discharging the function as classified in section 50 and section 61(1) (a) to (h) or under sub-section (2) the action may be taken by the Board or by the authorized person, as per section 61(3). In case the duty as specified on the mutawalli towards Board has not been performed and the Board is satisfied for not discharging the function as classified in section 50 and section 61(1) (a) to (h) or under sub-section (2) the action may be taken by the Board or by the authorized person, as per section 61(3). Thus, it is apparent that the intention of legislature in Chapter-VI from sections 44 to 60 is to classify certain duties of the mutawalli towards Board and on failure to discharge the said duties, the Board may take action for the penalty as specified under section 61. However, sub-section (3) of section 61 is inserted with the said intent using the words that “the Court may take cognizance of an offence punishable under the Act upon complaint made by the Board or an officer duly authorized by the Board in this behalf.” Thereafter, power to remove the mutawalli has been conferred to the Board as per section 64. In case the Board is not exercising such powers, the State Government, in certain contingencies, may exercise those powers. Thus under Chapter VI, from sections 44 to 61 deals the duties of mutawalli to discharge towards the Board, and the powers of the Board towards mutawalli, which includes to take steps for penalties against mutawalli. Thereafter section 64 onwards deals the power of the Board to remove the mutawalli who is not performing his duties, and to appoint new mutawalli, and the procedure, how the charge and possession of the property of the Wakf can be taken. However, on removal and on appointment of mutawalli as per section 67 certain duties have been classified on the mutawalli or the committee so removed as well on newly appointed. In case of failure to discharge those duties the newly appointed mutawalli conferred the right as per section 68(2) to apply to the Magistrate and in case of failure to carry out the order passed by the Magistrate First Class with respect to handing over of the charge, delivery of the possession of the record, accounts and all properties of the wakf including cash to the successor mutawalli within the time specified, the power under sub-section (3) has been conferred to punish the removed mutawalli in case he is not carrying out the directions of the Court. Thus, it is clear that after specifying the duties of mutawalli towards the Board and in case of failure to discharge those duties, the Board is conferred with a power to take action for the penalty as specified against the mutawalli under section 61 and thereafter the power may be exercised to remove the said mutawalli appointing successor mutawalli who may take recourse under section 68 of the Act. Therefore, the scope of section 61(3) is in the context of duties of mutawalli towards the Board and the scope of section 68 is in between the removed and successor mutawalli are in different context. Therefore, both cannot be put at the same footings and the proceedings initiated by the Board as well as the proceedings initiated by the successor mutawalli are totally in different context and cannot be equated to each other. However, the arguments as advanced by the learned counsel for the applicant that the application under section 68(2), (3) of the Act is not entertainable without seeking permission of the Board as specified under section 61(3) of the Act is devoid of any merit. In the said context, the judgment in the case of Said-ur-rehman (supra) relied by the applicant is required to be explained. The facts in the said case were, the successor mutawalli filed an application under section 68 and 73 of the Act before the Judicial Magistrate First Class. It was alleged that against the order of removal the earlier mutawalli had preferred an appeal before the Wakf Tribunal and on its dismissal on filing the application by successor mutawalli directions were issued to hand over the charge within two months. Against the said order, the earlier mutawalli approached to the High Court, which was stayed. Ignoring the said stay order, the Judicial Magistrate passed an order convicting the earlier mutawalli and directed to undergo sentence with fine against which the appeal was preferred, that too was dismissed. However, on filing the revision, the High Court remitted back the matter to the Judicial Magistrate First Class for deciding it afresh considering the fact of stay granted by the Court. The Judicial Magistrate has again passed an order of conviction. In appeal, the conviction was maintained, but the sentence was reduced. However, on filing the revision, the High Court remitted back the matter to the Judicial Magistrate First Class for deciding it afresh considering the fact of stay granted by the Court. The Judicial Magistrate has again passed an order of conviction. In appeal, the conviction was maintained, but the sentence was reduced. However, in the said context the Court was influenced of the fact that the action taken by the Judicial Magistrate convicting the appellant ignoring the order of stay was not justified. In addition to the said fact, the reference of section 61(3) of the Act has been made without taking note of the scope of sections 61(3) and 68(2) and (3) of the Act. However, the said judgment is not a precedent in the context of section 61(3) to maintain the application under section 68(2) and (3) of the Act. In view of the foregoing discussion and analysis of scope and object of section 61(3) as well 68(2) and (3) and also the context the judgment of Said-ur-rehman (supra) is hereby explained. Thus, in my considered opinion the arguments as advanced by the counsel for the applicant is devoid of any merit, hence, repelled. 9. On perusal of the proceedings of this case it reveals that on 11-7-2016 this Court has passed the order, which is reproduced as under : “Shri Hemant Kumar Namdeo, learned counsel for the petitioner. Shri Mithilesh Prasad Tripathi, learned counsel for the respondent. During the course of the arguments, it has been stated by learned counsel for the petitioner that Annexure A-6 has been filed before the J.M.F.C. seeking direction for handing over the charge. It is also stated at the Bar that the petitioner is prepared to hand over the charge to the respondent. Keeping in view the same, the parties are to take appropriate steps within seven days. Case be listed after seven days. C.C. as per rules.” Today, on the said order counsel appearing on behalf of the applicant contends that this order has been passed without perusal of the record under misrepresentation, however, has not been complied with. 10. But, on perusal of the facts as well as the legal position discussed hereinabove, the arguments as advanced by the learned counsel for the applicant that the order dated 11-7-2016 passed by this Court directing to deliver the charge to the successive mutawalli was under misrepresentation is meritless. 10. But, on perusal of the facts as well as the legal position discussed hereinabove, the arguments as advanced by the learned counsel for the applicant that the order dated 11-7-2016 passed by this Court directing to deliver the charge to the successive mutawalli was under misrepresentation is meritless. It is to be noted here that on filing an application under section 68(2) by the successive mutawalli for handing over of the charge and delivery of the possession of records, accounts and all properties of the wakf including cash, the Magistrate is duty bound to pass an order specifying the period for delivery of the said charge to the successive mutawalli and in case of failure to carry out the said direction of the Magistrate within the time so specified, he can exercise power under sub-section (3) of section 68 of the Act convicting removed mutawalli and to sentence him for the period as specified therein and also of fine or both. 11. In view of the foregoing discussion, the objection as raised by the applicant to dismiss the application under section 68(2) and (3) of the Act filed by the successor mutawalli is hereby rejected. Accordingly, the petition filed by the applicant stands dismissed with cost Rs. 2,500/-. The Magistrate concerned is directed to pass appropriate orders in exercise of powers under section 68(2) of the Act within two weeks from the date of production of certified copy of this order and in case of failure to carry out those directions, the powers as conferred under section 68(3) of the Act shall be exercised in accordance with law.