The petition is filed under Section 482 Cr.P.C. to call for the records in S.T.C.No.111 of 2008 on the file of the learned Judicial Magistrate No.I, Trichy and quash the same.
2.The brief averments made by the petitioner is follows: The petitioner is the Ex-Managing Trustee of the Wakf, which is known as "Hazrath Nabi Sallallahu Alaihi Vasallam Fathiha Wakf" Kuppangulam, Madurai Road, Trichirapalli (herein after called as "Wakf"). The Tamil Nadu Wakf Board had appointed the respondent as the Managing Trustee, which is challenged by the petitioner herein. The appointment of the Trustee of the said Wakf is the subject matter, which is now pending before the Supreme Court in S.L.P.No.3969 of 2008. When the Apex Court has seized of the matter, the respondent has been claiming as if he is the Managing Trustee. He had approached the learned Judicial Magistrate No.I, Trichirapalli, under
Section 68 of the Wakf Act, 1995, for delivery of possession of the Wakf property. However, the learned Judicial Magistrate has no competency to receive a complaint, which is the subject matter before the Apex Court and also not correct in taking cognizance under the Wakf Act. The learned Judicial Magistrate who is referred to under
Section 68 of the Act is only the Executive Magistrate and therefore, the complaint filed under
Section 68(2) which was taken on file in S.T.C.No.111 of 2008 by the learned Judicial Magistrate No.I, Trichy is liable to be quashed. Therefore the petition is filed under
section 482 0f Cr.P.C to quash the same.
3.The learned counsel for the petitioner would submit that the petitioner is the Managing Trustee for the above said Wakf and he continues to be the Trustee. The learned counsel further poited out that the Tamil Nadu Wakf Board had appointed three persons as Trustees, which is being challenged by the petitioner and the same is the subject matter in the Special Leave Petition before the Supreme Court and as such the respondent is not entitled to interfere with the possession of the Wakf properties, which is under the possession of the petitioner. The learned counsel pointed out that the Wakf Board has no authority over the private Wakf (Wakf-Aulad) and therefore, the appointment of the respondent as Managing Trustee by the Wakf Board is not valid and it is also being challenged and in the meanwhile, the respondent has approached the Judicial Magistrate for handing over possession which is illegal. The learned counsel also pointed out that the Judicial Magistrate mentioned under
Section 68 (2) of the Wakf Act is only an Executive Magistrate and not a Judicial Magistrate and therefore, the Judicial Magistrate No.I, Trichy cand not take cognizance.
4.The learned counsel for the petitioner relied on an unreported judgment in Crl.R.C.No.526 of 2006 (Jaffer Maideen and Another Vs. Vallam Jumma Pallivasal Commitee) wherein a Single Judge of this Court has held that the Magistrate mentioned under
Section 68(2) is not Judicial Magistrate and it is an Executive Magistrate and only under
Section 68(3), the parties can approach the Judicial Magistrate for punishment. In the said case, this Court has held as follows:
"14.The definition given under Section 3(32) of the General Clauses Act for the term "Magistrate" will apply only in a case, where there is nothing repugnant in the subject or context in the relevant Act. As already pointed out, the conjoint reading of
Section 68 and
Section 61 of the Wakf Act, 1995 would indicate that the Executive Magistrate of the first class has the power to pass an administrative order, directing the delivery of charge and possession of records to the successor Mutawalli or the Committee. Any violation of such order, which is punishable under
Section 68(3) of the said Act shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the first class on a complaint made by the Board or an officer duly authorized by the Board."
5.The learned counsel for the petitioner also relied on a decision of this Court reported in 2008(4) CTC 59 (Fuaad Musvee and another Vs. M.Shuaib Musvee and three others) wherein this Court has held as follows: "Public Wakf and Private Wakf (Wakf-alal-aulad) - What is / Difference between - Criteria for validity of Private Wakf - In case of Public Wakf corpus as well as usufruct vests in God since usufruct becomes immediately applicable to specified holy purpose - In case of Private Wakf only corpus of property vests in God immediately and enjoyment of usufruct is postponed till extinction of wakf, his family and descendants - Muslim law recognizes both Public Wakf as well as Private Wakf - A Private Wakf to be valid shall reserve ultimate benefit for a purpose recognized by Muslim law as religious, pious and charitable - Private Wakf is not invalid merely because ultimate benefit reserved for religious, pious and charitable purpose is postponed until after extinction of family/descendants of the person creating wakf."
6.The learned counsel for the respondent would state that the Wakf has been created in the year 1914 under a document No.164/1914 and thereafter, a scheme suit was filed and accordingly, the scheme was framed in O.S.No.44 of 1952 and later, it was modified in A.S.No.666 of 1954. The learned counsel would further state that according to the scheme, new Trustees have been periodically appointed by the Scheme Court. After the constitution of the Wakf Act, 1995, the Tamil Nadu Wakf Board being the authority to appoint the Trustees,has been appointing Trustees by calling applications and appointed new Trustees for the year 2005 and also in the year 2006. The petitioner and others challenged such notifications in C.R.P.No.2716 of 2003 before this Court which was dismissed as early as on 17.10.2007. The learned counsel also pointed out that the petitioner has made all attempts to thwart the appointment of new Trustees by the Wakf Board. The learned counsel pointed out that the petitioner has also preferred a Special Leave Petition before the Supreme Court which is now pending and no stay order has been granted in that petition. The learned counsel also pointed out that on 22.02.2008, the Wakf Board has appointed three members as Mutawalli for administration of the said Wakf and inspite of several notices by the Wakf Board as well as the Trustees, the petitioner is not handing over the possession which has prompted the respondent to approach the learned Judicial Magistrate No.I, Trichy to file an application under
Section 68 of the Wakf Act to deliver the possession of the Wakf property.
7.The learned counsel pointed out that the Magistrate of First Class referred to under
Section 68(2) is only a Judicial Magistrate and not an Executive Magistrate. The learned counsel relied on a decision of this Court reported in 1995 CRI.L.J.2820 (B.G.Gangadharappa Vs. Tahsildar, Soraba Taluk) wherein this Court has held as follows:
H.N.:-Registration of Births and Deaths Act (18 of 1968) S.13(3) - Karnataka Registration of Births and Deaths Rule 1970, R.10(3) - Application for registration of Birth or Death - Magistrate of first class referred to in
Section 13(3) - Is a judicial Magistrate and not executive Magistrate in view of
Section 3(3), Cr.P.C."
8.This petition has been filed under
Section 482 Cr.P.C. to call for the records in S.T.C.No.111 of 2008 on the file of the learned Judicial Magistrate No.I, Trichy and quash the same. The proceedings before the learned Judicial Magistrate is initiated by the respondent being the Managing Trustee under
Section 68(2) of the Act for an order directing the removed Mutawalli for the delivery of charge and possession of the Wakf.
9.The argument of the learned counsel for the petitioner is two folded, one,that the newly appointed Trustee has no authority to approach any forum for delivery of possession as the mater is sujudice and the other leg of the argument is that the Magistrate mentioned under
Section 68(2) of the Act is only an Executive Magistrate and not a Judicial Magistrate and therefore, the Judicial Magistrate No.I, Trichy has no competency to take cognizance of the matter and therefore, the entire proceedings are vitiated.
10.As far as the first line of the argument is concerned, the matter is sub-judice and the petitioner has approached the Supreme Court by way of filing Special Leave Petition which is now pending. The learned counsel for the respondent pointed out that as there is no order of stay, the appointment of new Trustees by the Wakf Board, which has been confirmed by the lower forum, is valid. The main dispute is whether the Magistrate mentioned under
Section 68(2) is an Executive Magistrate or the Judicial Magistrate.
11.As stated earlier, in an unreported judgment in Crl.O.P.No.526 of 2006 (Jaffer Maideen and another Vs.Vallam Jumma Pallivasal Committee), this Court has elaborately dealt with the subject and held that the Magistrate mentioned under
Section 68(2) is an Executive Magistrate and the Magistrate mentioned in Clause (3) is a Judicial Magistrate. The learned Judge has referred to
Section 68(2) and (3) of the Act and also referred
Section 3 of Cr.P.C. which deals with construction of references. As rightly pointed out by the learned Judge,
Section 68(2) refers to "any Magistrate of the first class within the local limits of whose jurisdiction any part of the Wakf property is situated".
Section 3 of Cr.P.C. deals with Construction of references with reference to Magistrates in this Code and in any other law. Section 3(2) refers to metropolitan Magistrate.
Section 3(3) refers to any reference in any enactment passed before the commencement of the Criminal Procedure Code.
12.
Section 3(4) refers to any reference under any law, other than the Code, where 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 Provision 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.The learned Judge has analysed what is contemplated under Clause (2) of
Section 68 is referable to Clause (b) of sub section(4) of
Section 3 Cr.P.C. i.e., it is an administrative exercise which can be done only by the Executive Magistrate. The learned Judge has held as follows:
"10.The moment a certified copy of the order appointing the successor Mutawalli or Committee is produced seeking necessary direction to the jurisdiction Magistrate of the first class, the latter is bound to make an order directing the delivery of charge and possession of the records to the successor Mutawalli or the Committee. No appreciation or sifting of evidence is contemplated in the aforesaid proceedings of the jurisdiction Magistrate of the first class as contemplated under
Section 68 of the Wakf Act, 1995. Further, the formulation of decision does not expose the erstwhile Mutawalli or Committee to any punishment or penalty. It is only the non-compliance of the direction issued by the jurisdiction Magistrate of the first class which invites punishment with imprisonment for a term, which may extent to six months or with fine or with both. If the functions exercisable by a Magistrate relates to administrative or executive in nature, then the same will have to be exercisable only by an Executive Magistrate, as per the above provision of law."
14.The learned Judge has also pointed out that
Section 61 of the Wakf Act which deals with penalties, in which the Court which can take cognizance of an offence punishable under the Section will be a Metropolitan Magistrate or a Judicial Magistrate of the First Class. The learned Judge has held as follows: "If the legislature has intended to entrust the function contemplated under
Section 68(2) of the Wakf Act, 1995 to the Judicial Magistrate of the first class, it would have definitely described so unambiguously conspicuous and the difference found incorporated in
Section 61(4) and
Section 68(2) of the Wakf Act, 1995 will not be there in the statue."
15.Therefore, according to the learned Single Judge, the successor Mutawalli has to approach an Executive Magistrate of the First Class under
Section 68(2) of the Act for an order directing the removed Muthawalli to deliver possession, etc., to the successor Muthawalli. If the removed Mutawalli fails, thereafter the successor Mutawalli has to approach the Judicial Magistrate under
Section 68(3) of the Act for punishment, which is contemplated under that Sub Clause.
16.Hitherto, the successor Mutawallis were approaching only a Judicial Magistrate for invoking the powers under
Section 68(2) and (3) of the Act for delivery of possession. Pursuant to the above said judgment in the year 2006, the successor Mutawallis are approaching the Executive Magistrate, either the Thasildar or the Revenue Divisional Officer or the District Collector for an order of delivery of possession under
Section 68(2) and on failure of delivery of possession by the removed Mutawalli, they are approaching the Judicial Magistrate for a punishment under
Section 68(3). In my humble opinion, the interpretation of the Magistrate mentioned under
Section 68 as Executive Magistrate is not correct.
17.
Section 61 of the Act relates to the functioning of the Mutawalli. If a Mutawalli fails to do certain acts or omits or fails to do certain acts, the act provides penalties and the courts to take cognizance of the offence under this Section in which it is clearly mentioned as a Metropolitan Magistrate or a Judicial Magistrate of the first class.
18.
Section 68 deals with the duties of a removed Mutawalli or a committee to deliver possession of records, etc. Of course, the language used is only a Magistrate of the First Class. The word "judicial" is not prefixed. Therefore,
Section 3 Cr.P.C. is the right provision to refer for the construction of such references. Clause (4) of
Section 3 Cr.P.C. deals with functions exercisable by a Magistrate under any law. Sub Clause (a) prescribes the functions exercisable by a Judicial Magistrate and Clause (b) refers to the functions exercisable by an Executive Magistrate.
19.The functions exercisable by an Executive Magistrate are administrative or executive in nature, such as,
(a)granting of a licence
(b)the suspension or cancellation of a licence
(c)sanctioning a prosecution or
(d)withdrawing from a prosecution The matters exercisable by a Judicial Magistrate are involving the appreciation or sifting of evidence or the formation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial, etc.
20.What is contemplated under
Section 68(2) of the Act is that the successor Mutawalli or 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 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, etc.
21.Here the learned Judge has held that when a certified copy of the order appointing a successor Mutawalli or Committee is produced "seeking necessary direction to the jurisdiction Magistrate of the first class, the latter is bound to make an order directing the delivery of charge and possession of the records to the successor Mutawalli or the Committee. According to the learned Judge, it requires no appreciation or sifting of evidenc Further held that it will not lead to any formation of decision which exposes the removed Mutawalli or Committee to any punishment or penalty. Therefore the duty exercisable is only by an Executive Magistrate.
22.Here I humbly disagree with the learned Single Judge. In my considered opinion, Clause (2) of
Section 68 contemplates that the Magistrate 'may' after giving notice to the removed Mutawalli, make an order. It contemplates an enquiry, appreciation or sifting of evidence and formulation of decision which exposes the person to some punishment as the failure of such order is punishable with imprisonment.
23.The learned Single Judge has held that the moment a certified copy of the order is produced before the jurisdiction Magistrate, the latter is bound to make an order, which in my opinion is not correct as the words used is "may". Clause 3 of
Section 68 reads as follows:
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 6 months or with fine which may extend to Rs.8,000/- or with both.
24.Here the definite article "the" refers to the Magistrate mentioned earlier. Therefore, the Magistrate of the First Class mentioned in Clause (3) is "the" Magistrate which refers the Magistrate mentioned in Clause (2).
25.The Division Bench of this Court in Crl.O.P.(MD)No.3102 of 2008 had an occasion to deal with
Section 68(2) of the Wakf Act and
Section 14(1) and (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short 'SARFAESI' Act) on a reference made by a learned Single Judge of this Court for deciding and answering the following question:
"Whether the Chief Judicial Magistrate has got power to entertain a petition under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002?"
26.A Single Judge was deciding an issue in Crl.O.P.No.3102 of 2008 filed under
Section 482 Cr.P.C. in respect of
Section 14 of SARFAESI Act.
Under 14 of SARFAESI Act "Chief Metropolitan Magistrate or District Magistrate is to assist secured creditors in taking possession of the secured asset".
Sub Clause (a)(1) of
Section 14 expressly says "(a)take possession of such asset and documents relating thereto and
(b)forward such asset and documents to the secured creditor."
27.The question before the learned Single Judge was whether the term "Chief Metropolitan Magistrate" includes "Chief Judicial Magistrate" and similarly does the term "District Magistrate" refer to an "Executive Magistrate" as defined in
Section 20 Cr.P.C.
28.Reliance was also placed before the learned Single Judge in the case reported in 2007(1) LW (Crl.) 130 (The Dhanalakshmi Bank limited Vs. Kovai Foods and Beverages and 5 others) wherein this Court had held "in every Metropolitan areas, the Chief Metropolitan Magistrate is empowered and in any district level Chief Judicial Magistrate is equal to Chief Metropolitan Magistrate".
The Single Judge in Crl.O.P.No.3102 of 2008 referred the ruling in Crl.R.C.No.526 of 2006 (Jabar Maindeen and another Vs. Vallam Jumma Pallivasal Committee) wherein the Magistrate of First Class under
Section 68(2) of the Wakf Act was referred as the Executive Magistrate of First Class. Therefore, the learned Single Judge found that the findings arrived in the above referred two judgments appeared to be conflicting with each other and hence made a reference for deciding the above said question.
29.However, the Division Bench has observed in paragraphs 13 and 14, which read as follows:
"13.As in the case of Wakf Act, no such differential duties are laid down between the Judicial Magistrate and Executive Magistrate and the term 'the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate' appearing in
Section 14 of the SARFAESI Act has to be understood and read in its plain meaning as "where there is no Chief Metropolitan Magistrate or the Chief Judicial Magistrate in a locality, then, the creditor may apply to the District Magistrate under this Section". Only for this purpose the legislature, in its wisdom, was very careful in using the term 'the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate', lest, it would have been 'the Chief Metropolitan Magistrate and the District Magistrate'. Therefore, no other meaning, as against the simple and plain meaning, incorporated unambiguously by the legislature into
Section 14 of the SARFAESI could be made.
14.On a scrutiny of both the judgments delivered by different judges of this Court, under different contexts, we have no hesitation to hold that there is no confusion or a difference of opinion on a same point between both the learned Judges of this Court, since both the above judgments are rendered under different contexts, while dealing with different Acts, one under the Wakf Act and the other under the SARFAESI Act."
30.Ultimately, the Division Bench dealt with only
Section 14 of SARFAESI Act and held that the term "Chief Metropolitan Magistrate" will have reference to Metropolitan area and the term "Chief Judicial Magistrate" will have reference to an area outside Metropolitan area and therefore the Chief Judicial Magistrate has got power to entertain a petition under
Section 14 of SARFAESI Act.
31.The interesting point is that the Chief Metropolitan Magistrate or the Chief Judicial Magistrate is empowered to take possession in order to assist secured creditor. Whereas under the Wakf Act as per the learned Single Judge, the Judicial Magistrate is not empowered to order delivery of possession.
32.In my humble opinion, the learned Single Judge who dealt with the matter in Crl.O.P.No.3102 of 2008 found that the two judgments one under SARFAESI Act and another under Wakf Act are conflicting with each other on the point of taking or delivery "possession". Under one Act, it is now well settled that the Chief Metropolitan Magistrate or Chief Judicial Magistrate is empowered to take possession and in another Act, the learned Single Judge of this Court has held that the term Magistrate of First Class have reference to Executive Magistrate of First Class. However, the reference to the Division Bench was under different aspect and in my humble opinion, the Division Bench has not either upheld or reversed the ruling of the learned Single Judge in Crl.R.C.No.526 of 2006 (Jabar Maindeen and another Vs. Vallam Jumma Pallivasal Committee.
33.A similar provision is given under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, for putting the Trustee or the Executive Officer in possession under
Section 101, which reads as follows:
"101.Putting Trustee or Executive Officer in possession.- (1)Where a person has been appointed-
(a)as trustee or executive officer of a religious institution; or
(b)to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act, in any scheme framed by the Board before the 30th September 1951, and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the records, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has been dismissed or suspended from his office or is otherwise not entitled to be in possession or by any person claiming or deriving title from such trustee, office holder or servant, not being a person claiming in good faith to be in possession on his own account or on account of some person not being such trustee, officer holder or servant, any *Presidency Magistrate or any Magistrate of the first class in whose jurisdiction such institution or property is situated shall, on application by the person so appointed, and on the production of the order of appointment, and where the application is for possession of property, of a certificate by (the Commissioner) in the prescribed form setting forth that the property in question belongs to the religious institution, direct delivery to the person appointed as aforesaid of the possession of such religious institution, or the records, accounts and properties thereof, as the case may be:
Therefore under Hindu Religious and Endowments Act, the Judicial Magistrate is the authority to order possession from the removed trustee.
34.In an unreported judgment of Karnataka High Court between J.M.Mohammed Shafiulla Vs. M.Abdul Zahir, a Single Judge (A.C.Kabbin J) had dealt with a case under
Section 68(2) of Wakf Act. It was a case, where a petition is filed before the Civil Judge (Jr.Dn.) cum Judicial Magistrate of first class under
Section 68(2) of the Wakf Act, which was challenged on a different context and the learned Single Judge while disposing of the application filed under
Section 482 Cr.P.C. issued a direction to the learned Judicial Magistrate to consider the matter under the provisions of Sub Clause (2)
Section 68 of the Wakf Act. This case is referred here only for the point that in the State of Karnataka, the Magistrate of First Class mentioned in
Section 68(2) has a reference to civil Judge (Jr.Dv.) cum Judicial Magistrate of First Class.
35.The legislature in its wisdom had empowered only the Judicial Magistrates to order possession failing which impose punishment of the debtors under the SARFAESI Act and the removed trustee under the HR and CE Act. It cannot be different under the Wakf Act which is also on the same footing.
36.It is pertinent to note that there is no penal provision under Section 101 of Tamil Nadu Hindu Religious and Charitable Endowments Act. Whereas, Wakf Act contemplates punishment in the failure to deliver possession.
37.To sum up
(i)Magistrate of first class referred under
Section 68(2) of the Wakf Act is the Judicial Magistrate as he has to enquire, sift evidence and to formulate a decision.
(ii)the article "the" referred in Sub-Clause 3 of
Section 68 of the Wakf Act is a definite article referring to the Magistrate already mentioned under
Section 68(2) of the Act.
(iii)the chief Judicial Magistrates are to assist the creditor to take possession under SARFAESI Act and the Judicial Magistrates are to pass an order for delivery of possession from the removed Trustee under Section 101(1) of the Hindu Religious and Charitable Endowments Act, 1959 and similarly the Magistrate of First Class mentioned under
Section 68(2) of Wakf Act, should be the Judicial Magistrate.
38.The learned Single Judge in Crl.R.C.No.526 of 2006 dated 19.10.2006 (Jabar Maindeen and another Vs. Vallam Jumma Pallivasal Committee)has held that the term referred under
Section 68(2) of the Wakf Act, Magistrate of the First Class is an Executive Magistrate of First Class when there is no such person designated as "Executive Magistrate of First Class". The code refers only "Executive Magistrate" and there is no difference of First Class or Second Class among Executive Magistrates.
39.For the above stated reasons, I am of the considered view that the term "Magistrate of the First Class" referred under
Section 68(2) of the Wakf Act, has the reference only to a Judicial Magistrate and therefore, the petitioner is not entitled to challenge the proceedings pending before the Judicial Magistrate No.I, Trichy in S.T.C.No.111 of 2008.
40.However, as I am not agreeing with the finding of the learned Single Judge in Crl.R.C.No.526 of 2006 (Jabar Maindeen and another Vs. Vallam Jumma Pallivasal Committee) the Registry is directed to place the matter before the Hon'ble Chief Justice to refer the same to a Division Bench for a decision on the question whether the term "Magistrate of the First Class" referred under
Section 68(2) of the Wakf Act, has the reference to a Judicial Magistrate or to an Executive Magistrate.
The petition is decided accordingly. Consequently, connected M.Ps. are closed.
nbj To
1.The Judicial Magistrate No.I, Trichy.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.