NASARULLAH Vs. SWAJID ALI

JUDGEMENT

(1.) This is an application in revision of an order of the District Judge of Moradabad imposing a fine of Rs. 50 upon the applicant, Nasrullah, under Section 10, Mussalman Wakf Act (42 of 1923). The proceedings are the direct outcome of former proceedings which have been the subject of a reported ruling of this Court, Nasrullah Khan V/s. Wajid Ali . My brother, Niamatullah, was a member of the Bench which decided that case. There the question was whether under Section 5, Act 42 of 1923, the District Judge could, on the intervention of other persons, call upon a muttawali to furnish accounts of a wakf and the view taken by the Bench was that the Act does not authorize the District Judge to pass an order that the muttawali should file a statement of accounts as contemplated by Section 5, and that the only procedure provided was to punish him under Section 10 of the same Act for not doing so. Accordingly, the same persons approached the District Judge and requested him to take action under Section 10. The Judge felt that he had to decide the question which was left undecided by this Court, namely whether the wakf was a wakf covered by Act 42 of 1923, before passing an order of fine. In my opinion he was bound to decide this question. His jurisdiction depended on the fact that the wakf was one under Act 42 of 1923, and until he decided that question he could impose no fine under the Act. Nasrullah is a person who, in compliance with Section 3 of the Act, made a statement as to the property of the wakf and by so doing was held in the judgment of this Court to which I have already referred, to have fulfilled the requirements of Section 3 of the Act. I am of opinion that he brought himself under the other provisions of the Act also and established his own liability to furnish accounts and made himself open to punishment for not doing so.

(2.) It is true that from time to time Nasrullah has denied that the property which he manages was a wakf within the meaning of the Act, but I cannot consider that this denial is of any value in view of his own action in complying with the requirements of the Act in the first instance. Moreover, once the learned District Judge went into the facts of the case as, in my opinion, he was entitled to do, he found that in the year 1842 the Commissioner passed an order showing the nature of this wakf, and it is clear from that order that this was a "wakf" such as is contemplated by Act 42 of 1923 and is not one of those wakfs which are excluded from the Act by Section 2(e). Thus, in my opinion, the District Judge was in a position to deal with Nasrullah under the Act if he found that Nasrullah had not complied with the provisions of the Act in the matter of filing accounts. In such cases the District Judge appears to act suo motu; but in actual practice he can never take action, unless somebody calls his attention to the fact that a muttawali has failed to perform his duties. The part played by the opposite party in this case is merely the part of calling to the notice of the District Judge an impropriety of which he is able to take cognizance. The Judge has imposed a fine of Rs. 50. His jurisdiction is not impeached in the grounds for revision, and although the wording of Section 10 is far from clear, I am of opinion that the District Judge is, under that section, the only person who can take proceedings and who can therefore impose the fine. The fine does not appear to be excessive, and I am not consider that this Court has any cause to interfere with the decision. I would therefore dismiss this application, but I do not consider this is a case in which costs should be allowed. Niamatullah, J.

(3.) The applicant has been held guilty of what should be considered to be an offence under Section 10, Act 42 of 1923, and sentenced to a fine of Rs. 50. Two main questions arise in revision : first, whether the applicant incurred the penalty provided for by Section 10 of the aforesaid Act, and secondly, whether the District Judge who convicted and fined, him had jurisdiction to do so.