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Gulam Dastagir Khan S/O. Gulzar Khan, Advocate and ors. Vs. Aziz Ahmed S/O. Gulam Mohmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Rev. Application No. 551/1980
Judge
Reported in1984(2)BomCR729
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 197(1); Indian Penal Code (IPC), 1860 - Sections 34, 120, 405, 406, 409, 464, 418, 420 and 465; Wakf Act, 1954 - Sections 18, 36A and 66
AppellantGulam Dastagir Khan S/O. Gulzar Khan, Advocate and ors.
RespondentAziz Ahmed S/O. Gulam Mohmad and ors.
Appellant AdvocateK.G. Khader, Adv. for petitioner No. 6
Respondent AdvocateM.P. Harjule, Adv. for respondent No. 3, ;S.C. Bora, Adv. for respondent No. 1, ;M.D. Shinde, Adv. for respondent No. 8, ;K.G. Khader, Adv. for respondents 4, 5, 9 to 11 and ;A.M. Dabir, A.P.P., for r
Excerpt:
.....be prescribed, that any immoveable property of a wakf has been transferred without the previous sanction of the board in contravention of the provisions of section 36-a, it may send a requisition to the collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. section 65 of the act deals with the protection of action taken in good faith. according to this section, no suit or other legal proceeding shall lie against the board or the commissioner or any other person duly appointed under this act in respect of anything which is in good faith done or intended to be done under this act. but where the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by..........the scheme of the wakf act, 1954, and other details about the constitution of the marathwada wakf board.4. the wakf act, 1954, (hereinafter referred to as the 'act') was made applicable on 15-11-1955 to the ex-hyderabad state comprising marathwada, karnataka and telangana regions. the act provided for establishment of boards for each state for the administration of wakf properties situated in the said state. on 1st november, 1956, the ex-hyderabad state came to be bifurcated as a result of the implementation of the state reorganisations act of 1956 and the marathwada area came to be transferred to the then bilingual state of bombay with effect from 1-11-1956. accordingly, a special provisions for establishment of board for part of a state was enacted in sections 66-a and 66-b of.....
Judgment:

M.M. Qazi, J.

1. The present revision application arises on account of the Criminal Case No. 4645/79 filed by one Aziz Ahmed (herein-after referred to as the 'Complainant') against the petitioners and others for the offences under sections 405, 406, 409, 464, 418, 420, 465 read with sections 34 and 120 of the Indian Penal Code. The complaint was filed on 11-7-1979.

2. According to the complainant, the lands Survey Nos. 57 and 60 situated at village Khandgaon Taluka and District Latur were service Inam Lands of Jame Masjid, Lature and the same were Crown Grants for Kazi service of Jame Masjid, Latur. The complaint further recites that the last surviving Inamdar was one Niyazuddin s/o. Tamizuddin (Respondent No. 6). It was further contended that on 10th May, 1972, the said Inamdar, Shri Niyazudding executed a lease-deed for a period of 98 years in respect of Survey Nos. 57 and 60 in favour of Respondents Nos. 7 to 13 for a consideration of Rs. 60,000/- and delivered the possession thereof. According to the complainant, the lands were leased out for a paltry sum of Rs. 60,000/- when, in fact its price was about Rs. 2,90,000/-. It was further contended that the petitioners who constituted the Marathwada Wakf Board (hereinafter, referred to as the 'Board') passed a resolution, dated 10th September, 1972, and accorded sanction to the said tansaction. It was further contended that while according sanction to an illegal transaction, the petitioners and others recovered Rs. 30,000/- from the respondents Nos. 7 to 13 by way of donation. Thus, according to the complainant the members of the Board in collusion and conspiracy with the Inamdar cheated the Board and misappropriated the amount.

3. The petitioners filed applications dated 20-6-1980 and 24-6-1980 contending that the complaint was not maintainable inter alia, on the ground that there was no sanction as required under section 197 of the Criminal Procedure Code. The trial Court, however, rejected the applications and held that the complaint was tenable. It is this order which is being challenged before this Court. In order to appreciate the contentions raised in the petition it would be expedient to consider the scheme of the Wakf Act, 1954, and other details about the Constitution of the Marathwada Wakf Board.

4. The Wakf Act, 1954, (hereinafter referred to as the 'Act') was made applicable on 15-11-1955 to the Ex-Hyderabad State comprising Marathwada, Karnataka and Telangana Regions. The Act provided for establishment of Boards for each State for the administration of Wakf properties situated in the said State. On 1st November, 1956, the Ex-Hyderabad State came to be bifurcated as a result of the implementation of the State Reorganisations Act of 1956 and the Marathwada Area came to be transferred to the then bilingual State of Bombay with effect from 1-11-1956. Accordingly, a special provisions for establishment of Board for part of a State was enacted in sections 66-A and 66-B of the Act by an Amending Act 30 of 1959, whereby the former Board of the Ex-Hyderabad State continued to function through the regional Committees upto the formation of the State of Maharashtra in the years 1960. The Board for the Marathwada Area was for the first time formed in 1961 A.D. under the name 'Marathwada Wakf Board'. Section 9 of the Act provides for the establishment of the Board for the State which shall be a body corporate having perpetual succession while section 10 provides for the composition of the Board which shall consists of eleven members and the Chairman to be nominated by the State Government from amongst the members appointed under section 11 of the Act. Section 11 lays down the category of persons out of whom the members of the Board are to be appointed. It further shows that the members of the State Legislature or members of Parliament representing the State may be appointed as members of the Board or such other persons having knowledge of administration, finance etc.; may also be appointed as members of the Board. Section 12 lays down that the members of the Board shall hold office for five ears and that a member shall notwithstanding the expiration of his term of office, continue to hold office until the appointment of his successor is notified in the Official Gazette. Section 15 lays down the functions of the Board. The general superintendence of wakfs in a State shall vest in the Board and it shall be the duty of the Board to exercise its powers under this Act as to ensure that wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs are created or intended. Section 18 gives powers to the State Government to remove the Chairman or any member of the Board if he is or becomes subject to any disqualifications specified in section 13 of the Act. Section 21 deals with the appointment of Secretary and other officers of the Board. There shall be a Secretary to the Board who shall be a Muslim and shall be appointed by the State Government, in consultation with the Board. According to sub-section (2) of section 21 of the Act the Secretary shall be the Chief Executive Officer of the Board and shall be under its administrative control. Section 36-A deals with the transfer of immoveable property of wakfs. There can be no transfer of any immoveable property of a wakf by way of sale, gift, mortgage or exchange; or lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building unless it is sanctioned by the Board. According to section 36-B if the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immoveable property of a wakf has been transferred without the previous sanction of the Board in contravention of the provisions of section 36-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. Section 46 deals with the annual contributions payable to the Board. According to this section, the mutawalli of every wakf shall pay annually to the Board such contribution not exceeding six per cent of the net annual income accruing in the State to the wakf as the Board may, subject to the sanction of the State Government from time to time determine. It further provides that no such contribution shall be payable by the mutawalli of a wakf of which the net annual income does not exceed one hundred rupees. The Board has also been given powers to reduce or remit such contribution for such time as it thinks fit. Section 48 of the Act deals with the Wakf Fund. According to this section, all monies received or received or realized by the Board under this Act and all other monies received as donations, benefactions and grants shall be deposited and accounted for under a separate sub-head and the same shall form a fund to be called the Wakf Fund and subject to any Rules that may be made by the State Government in this behalf, the Wakf Fund shall be under the control of the Board. Section 65 of the Act deals with the protection of action taken in good faith. According to this section, no suit or other legal proceeding shall lie against the Board or the Commissioner or any other person duly appointed under this Act in respect of anything which is in good faith done or intended to be done under this Act. According to section 66, the Commissioner, every auditor, every Officer and servant of the Board and every other person duly appointed to discharge any duties imposed on him by this Act or rules or orders made thereunder shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code. Section 67 of the Act enables the State Government to make Rules to carry out the purpose of this Act. It also enables the State Government to prescribe conditions and restrictions, subject to which the Board may transfer any property. Section 68 enables the Board with the previous sanction of the State Government to make regulations not inconsistent with this Act or the rules made thereunder for carrying out its functions under this Act. Section 69 is about appeal and savings.

5. From the complaint and the petition it is obvious that Niyazuddin had leased our the fields on 10-5-1972 prior to the Constitution of the present Board. Ordinarily the term of the present Board would have expired on 11-5-1977 after the expiry of five years but it continued in view of the provision to section 12 of the Act. While the Board was still functioning, the State Government served the members of the Board with a notice dated 6-11-1978 asking them as to why the Board should not be superseded in view of certain charges mentioned in the notice. The members of the Board denied the charges and contested the right of the Government to supersede the Board. They further requested vide their reply dated 18-12-1979 that they should be heard before passing of any final order. No hearing was given and the Board was superseded vide Notification dated 3-3-1979 without passing any speaking order. The administrator was appointed vide order dated 7-3-1979. The order of suppression was challenged before this Court by way of a writ petition which came to be registered as Writ Petition No. 833/79. While the writ petition was still pending, the criminal complaint (referred to supra) came to be filed on 11-7-79. The writ petition came up for hearing on 1-3-1980 and this Court was pleased to quash the Notification dated 3-3-1979 passed by the State Government superseding the Board. In view of the order of this Court the Board continued to hold office since no new Board was constituted by the State Government and the State Government should have at once revoked its order dated 7-3-1979 appointing the Administrator but instead of this, it issued a notification dated 5th March, 1981 under which the term of the Administrator was further extended until further orders.

6. It is necessary to state one more fact which was noticed in the course of arguments. The State of Maharashtra issued a Government Resolution bearing No. WKF 1883/56/CR 2/83, dated 29th January, 1983, (Wakf Cell), under which one Shri Zakaria Latif Aghadi was appointed as Chairman of the Wakf Board. This order was challenged before this Court by way of writ petition which came to be registered as Writ Petition No. 106/83. That writ petition has already been admitted by this Court on 21st February, 1983, and the stay was also granted preventing Shri Aghadi from taking over as Chairman of the Board.

7. According to Mr. Khader, learned Counsel, in view of the decision of this Court in Writ Petition No. 833/79 decided on 1st March, 1980, the complaint was not tenable. According to him, as soon as the order of supersession was reversed by the High Court, the Board revived and continued to function and it shall remain in force till the new Board is constituted. Mr. Khader further submitted that the members of the Board are public servants as per section 66 of the Act, and unless the sanction as required by section 197 of the Criminal Procedure Code is obtained they could not be prosecuted. It is essentially on these two grounds that he has pressed for quashing of the proceedings pending before the trial Court.

8. This Court in its judgment dated 1-3-1980 observed that it was indeed difficult to know why the Government thought of framing the charges when it was easier for it to appoint a fresh Board after the expiry of statutory period of five years was over and if the Government thought that the members were really guilty of any criminal offences it was open to the Government to take action against each one of them for any such lapses, if any, under the ordinary law of the land. This Court expressed its anguish and surprise as to why the Government did not proceed to constitute a fresh Board instead of leveling charges against the members of the Board to make out a case for supersession. The Court further observed that no speaking order was passed by the State Government while superseding the Board. The attitude of the Government was deprecated in the strongest possible language and inspite of that the Government did not proceed to constituted the new Board which was entirely within its province. The Court also recorded a finding that the charges leveled against the members of the Board were wholly without any basis. The Court gave an indication that the Government could appoint a fresh committee forthwith to avoid the impact of the proviso of section 12 of the Act. It is surprising that in spite of this judgment, the State Government did not proceed to constitute the Board as required by sections 10 and 11 of the Act. Instead, it followed this order only in its breach by issuing a notification dated 5th March, 1981, where under it had further extended the term of the Administrator until further orders. There is no dispute that the Administrator still continues to function under the notification dated 5th March, 81 and no Board is reconstituted. Section 12 of the Wakf Act reads as under :---

'12. Term of office - The members of the Board shall hold the office for five years; provided that a member shall, notwithstanding the expiration of his term of office, continue to hold office until the appointment of his successor is notified in the Official Gazette.'

9. In my view, the Board which was constituted on 11-5-72 still continues and shall continue till the new Board is constituted by the State Government as required by sections 10 and 11 of the Act. Though Mr. Dabir tried to justify the appointment of Administrator by the State Government but he could not lay his hands on any of the provisions under which the Administrator could be appointed by the State Government particularly after the order of supersession was quashed by this Court. Even if it is assumed in favour of the State that the initial appointment of Administrator on 7-3-1979 was legal, but it came to an end immediately after the passing or order by this Court on 1-3-1980 when the order of supersession was quashed. It cannot be over-emphasised that in the present case the Government has acted in a most casual manner and has disregarded the order passed by this Court and over and above, issued notification dated 5th March, 1981, extending the term of Administrator until further orders. Justice Branduiars of the United States said :

'If the Government becomes the law-breaker, it only breeds contempt for law.'

It was expected of the State Government to have issued the necessary instructions to the Administrator for the withdrawal of the complaint immediately after the passing of order by this Court on 1st March, 1980. The criminal complaint remained pending thereafter till this day and no steps were taken by the State Government for the withdrawal of the said complaint or for that matter for the constitution of the new Board. I have already referred to section 11 of the Act which lays down the category of persons from which the members of the Board are to be appointed. It is presumed that the members so appointed are respectable citizens who enjoys certain status. It is unfortunate that such persons should be subjected to prosecution in a case which is wholly untenable.

10. There is no dispute that in the present case the petitioners are being charged of conspiracy and of other offences in respect of the transaction dated 10-5-1972 which took place between the Inamdar Shri Niyazudding and respondents Nos. 7 to 13. It is difficult to appreciate as to how any liability can be fastened on the members of the Board in respect of the transaction dated 10-5-1972 when the Board itself was formed for the first time vide notification dated 11-5-1972. The Board must have taken charge some time after 11-5-1972. However, there is no exact date available on record as to when they took over the charge. Be that as it may, it is beyond one's comprehension as to how they can be held responsible as members in respect of the transaction which has admittedly taken place prior to their becoming members. Thus, even on merits I have no doubt that the complaint is without any substance.

11. Now, coming to the question of sanction, Mr. Khader has invited my attention to section 66 of the Act which reads as under :---

'The Commissioner, every auditor, every officer and servant of the Board and every other person duly appointed to discharge any duties imposed on him by this Act or Rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).'

Reading of this section leaves no doubt that the members duly appointed to discharge any duties imposed upon them under the Act shall be deemed to be public servants within the meaning of section 21 of the Penal Code. Mr. Khader has also invited my attention to the averment in the complaint which runs as under :---

'The accused Nos. 1 to 12 being entrusted with property of the Marathwada Wakf Board and having dominion over the property in the capacity of public servant committed breach of trust and are guilty of section 409.'

Thus in view of this admission in the complaint coupled with section 66 of the said Act, there can hardly be any doubt that the member of the Board are public servants within the meaning of section 21 of the Penal Code. According to section 18 of the Act the State Government may by notification remover the Chairman of the Board or any member thereof. Thus, there can be no doubt that it is the State Government which can appoint or remove the Chairman of the Board or any member thereof. Section 197 of the Criminal Procedure Code which is relevant for our purposes reads as under :---

'197 (1) When any person who is a Judge or Magistrate or a public servant not removable form his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharged of his official duty, no Court shall take cognizance of such offence except with the previous sanction---

a) in the case of person employed or as the case may be was at the time of commission of the alleged offence employed in connection with the affairs of the State Government.'

Mr. Khader has also invited my attention to the decision of this Court reported in Vithalrao Madhorao Walke v. Gulabrao Balimraji Barai and another 1977 Mh.L.J. 862. Mr. Dabir has referred to the decision of the Supreme Court in Baijnath v. State of Madhya Pradesh, : 1966CriLJ179 . The majority view is expressed by V. Ramaswami, J., and the relevant portion of the majority view is as follows :---

'It is not every offence committed by a public servant that requires sanction for prosecution under section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but where the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. What is important is the quality of the act and the protection contemplated by section 197 of the Criminal Procedure Code, will be attracted where the act falls within the scope and range of his official duties. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. If it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.'

Thus, the test laid down by the Supreme Court is whether there is nexus between the act complained of and the official duties of the public servant. If the act falls within the scope of the official duty or in excess of it, the protection would be available. The sum and substance of the complaint appears to be that the petitioners entered into conspiracy with Shri Niyazudding on 10-5-72 and thus, they misappropriated the sum of Rs. 60,000/- by according sanction to the transaction which was per se illegal.

12. Sub-section 2(i) of section 15 of the Act authorises the Board to sanction in accordance with the Muslim law, any transfer of immoveable property of a wakf by way of sale, gift, mortgage, exchange or lease. In this context, section 36-A of the Act is also relevant which reads as under :---

'Notwithstanding any thing contained in the wakf deed, no transfer of any immoveable property of a wakf by way of---

(i) sale, gift, mortgage or exchange, or

(ii) lease for a period exceeding three years in the case of agricultural land or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board.'

Legally, the Inamdar, Shri Niyazudding could lease out the agricultural land at the most for three years. In the present case the Inamdar has created a lease for 98 years. This is obviously outside his powers, and therefore, the question of sanction by the Board becomes relevant. In the present case, Mr. Dabir and Mr. S.C. Bora have strenuously argued that the commission of an offence cannot be said to be the part of the official duties of the public servant. According to Mr. Dabir, prima facie there is enough material to show that the petitioners are guilty of the offences charged. They contended that by according sanction without following the procedure laid down under the Act and rules made thereunder the petitioners have committed an offence which is outside their official duty and hence, no sanction was necessary. It is true that it is no part of the duty of any public servant to commit an offence. If we extend this analogy too far then it would be difficult to imagine any case in which a sanction may really be necessary. If on the face of it, it appears that the act complained of had some connection with the discharge of official duty of the public servant, then in my view, the protection of section 197 of the Criminal Procedure Code would be available and whether the public servant has exceeded his authority or not or whether it constitutes an offence or not would be a matter of evidence and the defence. On this point the law is now well settled. If the circumstances show that the public servant exceeded his authority while committing the offence the protection of section 197 of the Criminal Procedure Code would be available. In the present case I have no doubt that the petitioners accorded sanction in the discharge of their official duties. Whether that would constitute an offence or not would be a different matter with which we are not concerned at this moment. But in view of provisions contained in section 15(2)(j) and 36-A of the Act there can be no doubt that the petitioners were competent to accord sanction.

The question of sanction goes to the very root of the case. Granting of sanction is not an empty formality. This is protection which has been wisely provided by the legislature so that the public servants are not unnecessarily harassed.

13. I accordingly hold that the complaint is not tenable for want of sanction as required by section 197 of the Criminal Procedure Code.

14. I allow the revision application and quash the proceedings in Criminal Case No. 4645/1979 pending before the Judicial Magistrate, First Class, Aurangabad. Rule made absolute.


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