Jalil Khan vs Sadar Mutaballi

Indrani Datta, J.

Invoking the inherent powers enshrined u/s 482 of Cr.P.C., Petitioner has preferred this petition for setting aside order dated 30.8.2010 passed by Additional Judge (Fast Track) of Second Additional Sessions Judge, Sheopur, in Criminal Revision No. 69/2010 dismissing the revision and confirming order passed by JMFC, Sheopur, in case No. 17/2010, whereby application filed by the Petitioner u/s 90 of the Wakf Act, 1995 (hereinafter referred to as the Act) has been rejected.

Facts in nutshell giving rise to this petition are that Respondent filed a complaint u/s 68 of the Act against the Petitioner and others for directing the Petitioner for delivery of charge and for punishing Petitioner and others as per the provisions of Section 68(3) of the Act before learned JMFC, Sheopur. In the case registered on the said complaint, Petitioner filed one application u/s 90 of the Act as per Annexure P/5 which has been rejected and order of learned Trial Court is affirmed in above-mentioned revision giving rise to this petition.

It is contended by learned Counsel on behalf of the Petitioner that in every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the Court or Tribunal has to issue notice to the Board at the cost of the party instituting such suit or proceeding, hence, notice u/s 90 of the Act should have been given to Wakf Board. Respondent has not given any notice to the Board under the provisions of Section 90 of the Act which are mandatory and are applicable in civil as well as in criminal proceeding also. It is further contended that specific provision will be applicable upon all type of proceeding which is related to Wakf property. It is further submitted that as the provisions have not been followed and ignored by learned Trial Court as well as learned Revisional Court, both the orders are illegal and improper and liable to be quashed.

Learned Counsel for the Respondent vehemently opposed the petition and submitted that Section 68(3) of the Act relates to criminal proceeding, hence, notice u/s 90 of the Act is not maintainable. It is further submitted that a committee of Respondent and 12 others was constituted as per order dated 4.2.2010 passed by Board/Chairman of M.P. Wakf Board. This committee was constituted for one year. This order was sent to the Petitioner and others for delivery of charge, possession, records, accounts and all properties and that copy of order has already been served to Collector and SDO, Sheopur, but Petitioner has not handed over the charge to the Respondent. Thereafter, Respondent moved an application u/s 68 of the Act before learned JMFC and case No. 17/2010 is pending before that Court. As per the provisions of Section 68 of the Act, notice as per the provisions of Section 90 of the Act is not necessary. It is further submitted that Petitioner, who was former president of Jama Masjid''s earlier committee, filed one appeal against order dated 4.2.2010 passed by the Board which was registered as case No. 2/10 before Wakf Board which was withdrawn as per Annexure P/2 by the Petitioner, hence, Annexure P/1 that is order dated 4.2.2010 whereby Respondent was appointed has got finality. It is further submitted that ex-chairman Petitioner is punishable as per the provisions of Section 68(3) of the Act. It is further submitted that despite copy of order dated 4.2.2010 was served to the Petitioner, he has not handed over the charge to Respondent, hence, a writ petition was preferred by the Respondent praying that a direction in the nature of writ is to be issued to the Court of Judicial Magistrate First Class, Sheopur, for speedy disposal of the case No. 17/2010 pending against the Petitioner and that writ petition was disposed of on 29.11.2010 by the Division Bench of this Court with a direction to learned Trial Court to decide the case within one month. Thereafter, Division Bench of this Court in MCC No. 478/2010 has issued another direction that time period prescribed vide order dated 29.11.2010 would commence from the date of vacation of stay order passed in the present petition. It is further submitted that order for speedy disposal of Misc. Criminal Case No. 17/2010 has already been passed by Division Bench of this Court and no notice as per the provisions of Section 90 of the Act is mandatory. No ground is made out to invoke inherent powers by this Court for quashing proceedings of Misc. Criminal Case No. 17/2010 pending in the Court of JMFC, Shoepur, hence, this petition sans merit and is liable to be dismissed.

Heard rival contentions of learned Counsel for the parties and perused the documents on record.

So far as the the word "proceeding" is concerned, it does not mean only civil or criminal proceedings. The term proceeding has not been specified in Section 90 of the Act, but we have to consider the necessity of giving notice to a particular party in the sense of provisions of the Act. Section 90 of the Act reads as follows:

Notice by suits, etc., by Courts.-(1) In every suit or proceeding relating to a title to or possession of a wakf property or the right of a mutawalli or beneficiary, the Court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any wakf property is notified for sale in execution of a decree of a civil Court or for the recovery of any revenue, cuss, rates of taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.

(3) In the absence of a notice under Sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf.

(4) In the absence of a notice under Sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the Court or other authority under whose order the sale was held.

It would be fruitful to go through Section 68 of the Act also which reads as follows:

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 an, there upon, 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 committee omits or fails to comply with the orders made by 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 any 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).

On a bare reading of these Sections, it is crystal clear that Section 90 of the Act relates only to civil proceeding in a suit or proceeding relating to a title or possession of wakf property and in that case, notice u/s 90(1) of the Act is mandatory. This Section does not say that before initiating proceeding before a Magistrate u/s 68 of the Act, notice u/s 90(1) of the Act is to be given to the Board, nor does Section 68 of the Act reveals about such notice. So notice u/s 90(1) of the Act is not mandatory for proceeding u/s 68 of the Act.

Considering the above legal aspect, according to me, the order of learned Trial Court is legal and proper. No ground is made out for quashing the proceeding pending before learned JMFC by invoking inherent powers. Learned Trial Court is directed to expedite the trial of Misc. Criminal Case No. 17/2010 and dispose of it as per the directions issued in MCC No. 478/2010 by Division Bench of this Court. Petition sans merit and the same is hereby dismissed.