John Beaumont, C.J.
1. This is an appeal by the accused against his conviction under Section 10 read with Section 6A of the Mussalman Wakf Act of 1923 (as amended by Bombay Act XVIII of 1935). The objection to the order made by the learned Magistrate is purely technical, and it arises in this way.
2. Under Section 3 of the Mussalman Wakf Act, 1923, within six months from the commencement of the Act, (and as to the community to which the present accused belongs the Act came into operation on October 16, 1931), every muta-walli shall furnish to the Court, which in this case is the Small Cause Court, Bombay, certain particulars relating to the wakf ; and under Section 5 he has to deliver certain accounts. By Section 10 failure to furnish the required particulars under Section 3, or to deliver the accounts under Section 5, shall render the mutawalli liable to conviction and to be punished with a fine. That Act was amended by Bombay Act XVIII of 1935, which added a good many sections, some of which are material. Under Section 6A it is provided that notwithstanding anything contained in Section 3, it shall be competent to the Court, on failure of a mutawalli to furnish a statement as required under the section, to require the mutawalli to furnish, within such time as the Court shall fix, a statement containing all or any of the particulars referred to in the section, including a copy of the deed or instrument, if any, creating the wakf. Section 6B enables a corresponding order to be made in respect of accounts to be delivered under Section 5. Then under Section 6C the Court is authorized to hold an inquiry to ascertain three things : (i) whether a wakf is a wakf to which the Act applies ; (ii) whether any property is the property of such wakf and whether the whole or any substantial portion of the subject-matter of such wakf is situate within the local limits of the jurisdiction of the Court; and (iii) who is the mutawalli of such wakf. Under Section 6F it is provided that the entries made by the Court in the Register of Wakfs and the findings recorded under Section 6C shall be final for the purposes of the Act. Then under Section 6L a Wakf Committee is constituted ; and under Section 6M power is given to the Court to refer at any time to the Wakf Committee or any three or more members thereof, for advice, opinion, inquiry, report or recommendation, within such time as the Court may direct, any matter relating to the registration, superintendence, administration and the control of wakfs, and in particular any matter relating to (a) the conduct of a' mutawalli or a trustee in the administration of a wakf or his fitness to continue as a mutawalli or a trustee, (b) the settlement, cancellation or alteration of a scheme for the administration of a wakf, or (c) the application of the funds of a wakf or any surplus thereof. By Section 10B it is provided that no prosecution under the Act shall be instituted except by or with the previous sanction of the Court given in the prescribed manner. The prescribed manner refers to Rule 26 of the Rules made under the Act.
3. The appellant is alleged to be the mutawalli of a wakf, which comprises immoveable property in Falkland Road, Bombay, and admittedly he has not filed any particulars or accounts in the Court under Section 3 or Section 5 of the Wakf Act. On January 19, 1938, he was served with a notice on behalf of the Chief Judge of the Small Cause Court, which is headed ' Notice under Section 10B and Rule 26,' which required the appellant to show cause why he had failed to furnish statement of particulars under Section 3 and statement of accounts under Section 5 of the Wakf Act, and why proceedings against him should not be taken under Section 10 of the Act. That notice was not served until September 27, 1938. On the notice the accused appeared, and put in an affidavit stating that the property was not wakf property, and had been gifted to His Holiness the Mullaji Saheb. On that affidavit being put in, the learned Chief Judge referred to the Wakf Committee for investigation and report the question whether the property was wakf property, and, if so, for what purpose. With all respect to the learned Judge, I think he had no jurisdiction to refer that question to the Wakf Committee. The question whether property is wakf property is one of the matters which the Court can inquire into under Section 6C, but is not a matter which can be referred to the Wakf Committee under Section 6M. The Committee held an inquiry, and eventually made a report to the Court saying that the property was wakf property, of which the accused was a mutawalli. Then the matter came before the acting Chief Judge of the Small Cause Court on July 31, 1939, and he delivered a judgment in which he agreed with the conclusions of the Wakf Committee. Ha does not appear himself to have heard any evidence. No doubt, some of the documents relied on were public documents which he could look at, but no documents were proved; and I cannot help thinking that the learned Judge did very little more than accept evidence which had been filed before the Committee and agreed with the conclusion which the Committee had arrived at, and that procedure was undoubtedly wrong. Evidence given before the Committee is not made evidence in proceedings before the Court, and the learned Judge ought to have heard the accused and taken evidence. The report of the Committee went, in my opinion, beyond what the Committee was entitled to inquire into. That, no doubt, was the fault of the learned Chief Judge in having referred to the Committee a matter which was outside the jurisdiction of the Committee. Undoubtedly there was irregularity occasioned by the action taken by the learned Chief Judge in not deciding the matter himself. However, the learned acting Chief Judge recorded his findings as follows :-
In the result, I hold that the wakf in this case is a wakf to which the Mussalman Wakf Act applies; that the property in respect of which this notice has been issued is the property of such wakf and that the same is situate within the local limits of the jurisdiction of this Court and that the respondent is the mutawalli of the wakf.
4. Now, these are all matters covered by Section 6C, and the learned Judge then made an order in these terms :
Under the circumstances, I order the respondent to furnish within thirty days from to-day a statement of particulars under Section 3 (in the form in Schedule D) and a statement of accounts under Section 5 (in the form! in Schedules Aland B) of the Mus-salmanl Wakf Act in respect of the wakf property at Falkland Road, C. S. No. 170 of Tardeo Division. In default, sanction under Section 10B(I) will be given for the prosecution of the respondent for an offence under Section 10 of the Wakf Act.
5. The accused did not comply with that order, and accordingly a prosecution was launched.
6. Before the learned Magistrate the accused desired to contest his liability to conviction on the ground that the property was not wakf property, and that he was not a mutawalli; but the learned Magistrate held, that he was precluded from going into that question by Section 6F of the Amending Act on the ground that those matters had already been covered by an inquiry under Section 6C; and the only question before us at the moment is whether that decision is right.
7. As I have pointed out, the notice served on the accused did not specify that it was an inquiry under Section 6C, and, apart from the irregularity arising from the reference to the Wakf Committee, I think it is open to the accused to say that he had no idea that an inquiry under Section 6C was being held, and that, although the learned acting Chief Judge recorded findings in respect of matters which would be covered by an inquiry under Section 6C, the accused did not know that the learned Judge was going to adopt that course ; and it may be that if he had known that an inquiry was being held under Section 6C, the result of which would be final, when the matter came before the Magistrate, he would have adopted different tactics to those which he did adopt.
8. On that ground we must send the matter back to the learned Magistrate to be dealt with on the; basis that there has not been any recorded finding under Section 6C.
9. There is one other matter, which I desire to mention. Experience seems to show that the Dawoodi Bohra community are very reluctant to accept this Act, and rnutawallis of wakfs created by that community are reluctant to render accounts. We are not, of course, concerned with the merits of any question of that sort. All that the Court has to do is to see that the law is enforced. Now, here we have a special order made apparently under Section 6A directing certain particulars and accounts to be delivered by the accused within a certain fixed period. That order has been disobeyed. On the face of it that seems to show that the accused has been guilty of contempt of the Court of Small Causes, and that is a matter which this Court may deal with under the Contempt of Courts Act, 1926. The matter has, of course, not been considered up to the present moment; but we propose to serve notice upon the accused and upon the Public Prosecutor to show cause why the accused should not be committed to prison, or otherwise dealt with, under the Contempt of Courts Act, for his contempt in having disobeyed the order made by the acting Chief Judge of the Small Cause Court on September 4, 1939, directing him to furnish within thirty days from the date of the order a statement of particulars under Section 3 (in the form in Schedule D) and a statement of accounts under Section 5 (in the form in Schedules A and B) of the Mussalman Wakf Act in respect of the wakf property at Falkland Road, C. S. No. 170 of Tardeo Division.
10. The conviction of the accused is set aside, and the fine, if paid, to be refunded.
N.J. Wadia, J.
11. I agree.