J M MOHAMMED SHAFIULLA Vs. M ABDUL ZAHIR

JUDGEMENT

(1.) THE petitioner herein is the respondent in Criminal Miscellaneous Petition No. 18/2003 on the file of the Civil judge (Jr. Dn.) and JMFC, Molalkalmur. That case was registered on a petition filed by the present respondent claiming to be the President of the Managing Committee of masjid-e-Rahamaniya of Molakalmur. It is stated that by order dated 23-5-2002 issued by the Karnataka State Wakfs Board, this petitioner was removed from the post of muthuvalidar and that the respondent herein was appointed in that vacancy. The present respondent's contention was that despite intimation to this petitioner, the latter was not handing over the records, accounts and cash belonging to the concerned wakf. On the said petition, the sworn statement of the present respondent was recorded by the learned Magistrate and after perusing the records he passed an order on 7-4-2003 for registration of a miscellaneous case against the present petitioner and directed for issue of notice to him. Later, after this petitioner appeared before the trial court, he filed an application under Section 204 of Cr. P. C. , for discharge contending that the petition was not maintainable and that list of witnesses had not been furnished before issuance of process. On that application an order was passed by the learned jmfc on 27-9-2003 dismissing that application. Both these orders, i. e. , orders dated 7-4-2003 and 27-9-2003 have been challenged in this petition filed under Section 482 of the Code of Criminal Procedure on the ground that the learned Magistrate had proceeded to deal with the matter as if it was a complaint filed under Section 200 of cr. P. C. , and that such procedure is quite contrary to the provisions of Section 68 of the Wakf Act.

(2.) I have heard the arguments of Sri. H. Kantharaja, the learned counsel for the petitioner. The contention taken by him is that the penal provision under sub-section (3) of section 68 of the Wakf Act comes into picture only after an order is passed by the learned Magistrate directing delivery of charge of the office of Mutawalli and custody of the properties to the successor mutawalli and only if such order is not obeyed by the removed Mutawalli. He submits that in the present case this aspect has not been taken into consideration by the learned Magistrate.

(3.) A perusal of Section 68 (1) of the Wakf act shows that where any Mutawalli or Committee of Management has been removed by the Board in accordance with the provisions of the Act, the Mutawalli or the Committee so removed shall hand over 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. It is necessary for the learned magistrate to see whether this requirement under sub-section (1) of Section 68 had been complied with. Where any removed mutawalli or Committee fails to deliver charge or deliver possession of the records, accounts and properties to the successor mutawalli or Committee within the time specified in sub-section (1), the successor mutawalli or any member of the successor committee has a right to make an application under sub-section (2) of Section 68 of the Wakf Act to the jurisdictional Magistrate and such Magistrate after giving notice to the removed Mutawalli or members of the removed Committee, may make an order directing the delivery of charge and possession of such records, accounts and properties to the successor Mutawalli or the Committee, within the time specified in the order. The penal provision provided under subsection (3) of Section 68 comes into play if the removed Mutawalli or any member of the removed Committee, omits or fails to deliver charge and possession of the records, accounts and properties within the time specified by the Magistrate under sub-section (2 ).