A K KALIFULLA Vs. M ABDUL KHADER

JUDGEMENT

(1.) 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 (hereinafter 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 of 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 pointed 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 cannot take cognizance.