@JUDGMENTTAG-ORDER
S. Nagamuthu, J.@mdashThe respondent claims to be the Mutawalli of AHL-E-Sunnath-O-Jamath Old Mosque which is governed by the Wakf Act, 1995. The respondent filed C.C. No. 764 of 2009 before the learned VII Metropolitan Magistrate, George Town, Chennai under Section 68 of the Wakf Act, seeking a direction to the petitioners herein, to deliver charge and possession of the records, accounts and properties, including the cash, within a period to be specified by the Magistrate, failing which, punish the accused as per the Wakf Act. In the said petition, it is alleged by the respondent that the said mosque had properties in and around the area of Vaniambadi, Chennai. It was also alleged before the trial Court that the first petitioner was the Mutawalli and the second petitioner was the Assistant Mutawalli of the mosque between 2002 and 2008. The third petitioner was a committee member between 1994 and 2008 and the fourth petitioner was a member between 1994 and 2002. The petitioners have come up with this petition seeking to quash the said proceedings. Though, several grounds have been raised in the petition, the main ground upon which the proceeding before the lower Court is assailed is that under Section 68 of the Wakf Act, the learned II Metropolitan Magistrate, George Town, Chennai has got no jurisdiction or power to entertain such a petition.
2. I have heard the learned counsel for the petitioners and the learned counsel for the respondent and I have also perused the records carefully.
3. In order to resolve the said dispute, let us have a quick look into Section 68(2) & 68(4) of the Wakf Act as it originally stood prior to the amendment Act in the year 2013, which reads as follows:
"68(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 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, 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.
68(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 may authorise such person to take such police assistance as may be necessary for the purpose."
4. Precisely, the same question as to whether the term "Magistrate" as referred to in Section 68(4) of the Wakf Act would mean "Judicial Magistrate" or "Executive Magistrate", came up for consideration before the Madurai Bench of this Court in Jabar Maideen v. Vallam Jumma Pallivasal Committee CDJ 2007 MHC 2463 : LNIND 2006 BMM 88. In that case, after having dealt with Section 3 of the Code of Criminal Procedure, vis-�-vis, Section 68 of the Wakf Act, the Madurai Bench of this Court held that the term "Magistrate" as employed in Section 68 of the Wakf Act, refers only to the "Executive Magistrate" and not the "Judicial Magistrate". In paragraph No. 15, the learned Single Judge of the Madurai Bench of this Court, in the said judgement, has held as follows:
"15. The learned Judicial Magistrate No. 2, Thanjavur has no authority to pass any order under Section 68(2) of the Wakf Act, 1995. The respondent has to approach only the jurisdiction Executive Magistrate to pass necessary orders under Section 68(2) of the said Act."
5. Similar provision is found in Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI, Act") and the same reads as follows:
"14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him.
(a) take possession of such asset and documents relating thereto; and
(b) forward such asset and documents to the secured creditor.
(2) For the purpose of securing compliance with the provisions of Sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.
(3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority."
6. Before the
7. In Indian Overseas Bank v. Sree Aravindh Steels Ltd. (supra), the Division Bench of the Madurai Bench held that so far as the Wakf Act is concerned, the term "Magistrate" as employed in Section 68 of the Act means only Executive Magistrate and not Judicial Magistrate. But, so far as Section 14 of the SARFAESI Act is concerned, the Division Bench has held that the term "District Magistrate" includes the Chief Judicial Magistrate. Thus, the Division Bench in Indian Overseas Bank v. Sree Aravindh Steels Ltd. (supra), affirmed the view taken by the learned Single Judge of the Madurai Bench of this Court in Jabar Maideen v. Vallam Jumma Pallivasal Committee (supra), so as to hold that the term "Magistrate" as employed in Section 68 of the Wakf Act means only an "Executive Magistrate" and not a "Judicial Magistrate".
8. The story does not stop with this. In a similar case under the Wakf Act, when Jabar Maideen v. Vallam Jumma Pallivasal Committee (supra), case was relied on by a party, yet another Honourable Judge sitting in Madurai Bench expressed his inability to agree with the view taken in the said case. Therefore, he referred the same to a Division Bench. The Division Bench sitting in Madurai Bench of this Court in
9. But, unfortunately, the judgement in Indian Overseas Bank v. Sree Aravindh Steels Ltd. (supra), wherein the earlier Division Bench had taken the view that the term "First Class Magistrate" as employed in Section 68(2) of the Wakf Act would mean only an "Executive Magistrate", was not brought to the notice of the later Division Bench. Thus, there were two Division Bench judgements which are conflicting in nature.
10. In yet another case under Section 14 of the SARFAESI Act, when the judgement in Indian Overseas Bank v. Sree Aravindh Steels Ltd. (supra), case was cited, another Division Bench found the judgement of Bombay High Court taking a quite contrary view. Therefore, the said Division Bench presided over by the then Hon''ble Chief Justice Mr. R.K. Agrawal (as he then was) referred the matter to a Full Bench.
11. The Full Bench of the Madurai Bench of this Court in
12. Thus, now, there are three judgements on this subject under Section 68(4) of the Wakf Act. The Division Bench presided over by the Hon''ble Ms. Justice K. Suguna in A.K. Kalifullah v. M. Abdul Khader and Another (supra), has held that the term "First Class Magistrate" as used in Section 68(4) of the Wakf Act would mean only a "Judicial Magistrate". The earlier view taken in Indian Overseas Bank v. Sree Aravindh Steels Ltd. (supra), by yet another Division Bench presided over by the Hon''ble Mr. Justice Elipe Dharma Rao was that the term "First Class Magistrate" used in Section 68(4) of the Wakf Act would mean only an "Executive Magistrate" and not "Judicial Magistrate".
13. The Full Bench presided over by the Hon''ble Mr. Justice N. Paul Vasantha Kumar has taken the view that the term "District Magistrate" without qualifying the word "Magistrate" would mean only an "Executive Magistrate".
14. From the Full Bench judgement, it is crystal clear that the judgement in A.K. Kalifullah v. M. Abdul Khader and Another (supra), stands impliedly overruled and the same has lost his life. Therefore, as per the judgements of this Court as referred to above, the term Magistrate as employed in Section 68(4) of the Act would mean only an "Executive Magistrate" and not the "Judicial Magistrate". More so, because, the function of the Magistrate under Section 68 of the Act does not involve any adjudication.
15. Because there were conflicting views taken by various Courts, while interpreting the unamended provision of Section 68 of the Wakf Act, the Parliament thought it fit to amend Section 68 of the Wakf Act so as to remove the ambiguity, if any.
16. Now, as per the Wakf Amendment Act, 2013, dated 20.09.2013, Section 68 has been amended and after the amendment, the words "Magistrate of First Class, Magistrate and Sub Divisional Magistrate" have been deleted and the same have been substituted by the words "District Magistrate", "Additional Magistrate" or their equivalent. This amendment has been made only to remove the ambiguity so as to declare once for all that the term "Magistrate" referred to in Section 68 of the Wakf Act means only an "Executive Magistrate" and not a "Judicial Magistrate".
17. Thus, as has been held by the Full Bench of this Court, the term "District Magistrate" as employed in Section 68 of the Act, refers only to the "Executive Magistrate". Thus, it is crystal clear that no judicial Magistrate has power under Section 68 of the Wakf Act to pass any order. The party aggrieved has to approach only the appropriate "Executive Magistrate" for relief. In such view of the matter, I am inclined to quash the proceedings in C.C. No. 764 of 2009 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai.
18. The learned counsel for the respondent would submit that liberty may be given to the Wakf to approach the "Executive Magistrate" for necessary relief. In my considered opinion, whoever is the present Mutawalli of the Wakf will be entitled to approach the Executive Magistrate Court, provided he has got legal right to do so. In the result, the Criminal Original Petition is allowed and the case in C.C. No. 764 of 2009 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai is quashed.
