(1) The short point to be decided in this petition is whether the Mysore Muslim Wakf Board is to be brought on record as a necessary and proper party interested in the proceedings under the provisions of Section 145 Cri. P.C.
(2) The facts leading up to this petition are briefly as follows: A mosque in Gulbarga town called the Jail Road Mosque and the properties attached thereto, it is undisputed, are the Wakf properties. The members of the Party I before the trial Magistrate alleged that they are in actual possession, management and control of the Mosque and its properties and as such, are entitled to continue in the said management, while the members of Party II contend that it is they who have got the actual control and management of the Mosque and its properties having been appointed by the Mysore Muslim Wakf Board.
The third party in the intervene and that party is none other than the Muslim Wakf Board itself. It filed a petition before the trial Magistrate requesting that it should be impleaded as a party to these proceedings. That application is dated 27-4- 1960. Members of Party II have absolutely no objection for the intervene to be brought on record. It is only the members of Party I who object to the Wakf Board being made a party to these proceedings. The learned Magistrate, after hearing both the parties, came to the conclusion that the petition made by party 3 should be rejected. In his opinion they were not person interested in the Wakf and hence have no locus standi to come in, in the dispute between members of party I and II. Against the said order, the Wakf Board has come up in revision to this Court.
(3) It may be mentioned here that due to Re-Organization of States a number of changes have taken place in the Wakf Board. The application that was filed before the Magistrate was by the Hyderabad Wakf Board. Due to the Reorganisation of States, Gulbarga formed part of the Mysore State. Hence if at all, the proper party would be, in case the contention of the third party succeeds, the Mysore Wakf Board. An application Cr. Petition No. 341 of 1961 has been filed in this Court for substituting the Mysore Wakf Board in the place of the Hyderabad Wakf Board. That petition was filed before this court on 25-7-1961.
In my opinion, this petition is entitled to succeed because of the fact that according to the provisions of the States Reorganisation Act as well as by virtue of Rule 9 of the Rules approved by the Central Government under the Mysore Board of Wakfs and Muslims Wakf Board (Dissolution) Order, 1961, the new Board shall be deemed to be substituted as a party to any pending proceedings to which the existing Board was a party. The existing Board at that time was the Hyderabad Wakf Board that is to substituted is the Mysore Wakf Board.
(4) Reverting to the main contention of the parties, great reliance is placed by Sri Krishna Murthy appearing for the third party viz., the Mysore Wakf Board, that the order of the learned Magistrate is wrong and it is to be set aside because of the fact that taking into consideration the relevant provisions of the Indian Muslim Wakf Act, 1954 which is the Act applicable to Wakfs after the Reorganisation of States, the third party was to be impleaded as a party to the proceedings. Reliance is placed on the provisions of Section 59 of the said Act which runs as follows:
' 59 Board to be In any suit or proceeding in made a party to a respect of a wakf or any wakf suit or proceeding property by or against a stranger regarding a wakf on to the wakf or any other person, its application. the Board may appear and plead as a party to the suit or proceedings.
A perusal of this section gives the opinion to the Board to be impleaded as a party to any pending suit or proceeding. There can be no doubt that the proceedings under Section 145 of the Code of Criminal Procedure are proceedings to which also this section applies. If so, in case the third party desires to be made a party to these proceedings it can approach the court during the pendency of those proceedings. It is urged by Sri Sheriff, the learned Advocate for the First party that the expression that is used in Section 59 is that 'the Board may appear.' The section, according to the interpretation put by the learned counsel does not give a right to the Board to appear in any proceeding. A close scrutiny of this section indicates that in case it is suit or a proceeding, the Board has a right to the Board either to exercise that right or not.
(5) In this, connection, it would be relevant to refer to one or two other sections of the said Act. Section 15 of the Act deals with the functions of the Board. Section 15 (1) runs as follows:
' 15 (1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established for the state ; and it shall be the duty of the Board so to exercise its power under this Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof duly applied to the objects and for the purposes for which such wakfs were created or intended.'
In other words, this section vests the overall superintendent and control in the Wakf Board and that is done for purpose of ensuring that those wakfs are properly managed and the income thereof are applied to the objects for which it is meant and for which wakfs have come into existence. In fact this is an important section inasmuch as is gives a practical shape to the very purpose for which the Wakf Act has come into existence. As per Section 2 of the Act , the Act applies to all wakfs whether created before or after the commencement of the Act. Under sub- section 2 of Section 15 several functions are entrusted to the Board. As per 2 (c) it can give direction for the administration of wakfs; as per 2 (k) it can institute and defend suits and proceedings in a Court of law relating to wakfs; and under 2 (o) it is given general powers to do all such acts as may be necessary for the due control, maintenance and administration of wakfs.
(6) The machinery through which this Act works is mentioned in Section 16 which states that the Board may, whether it considers necessary establish generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs. For different areas different committees are appointed. These are, in short, the relevant provisions that are to be considered to determine whether party 3 is to be made a party to the proceedings before the Magistrate or not. When Section 59 empowers such a party to appear and be impleaded as a party to a proceeding, it is well within the scope of party 3 to approach the Court before whom the proceedings are pending to be made a party thereto. Thus far there is much force in the contention that as per the provisions of the Wakfs Act , the Board if it so likes, could be made a party to a proceeding, more so because it is vitally interested in the upkeep of the wakf and its proper management and proper functioning.
(7) However the matter lies with the Court to finally decide whether party 3 should be intervened in the proceedings or not. A brief consideration of Section 145 (5) Cri. P. C. Is necessary, and that section runs as follows :
' 145 (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed but, subject to such cancellation, the order of the Magistrate under sub- section (1) shall be final.'
According to this section the Magistrate has got the jurisdiction to implead any person 'interested' in the proceedings. By a reference to the relevant provisions of the Wakf Act, I have stated that party 3 is a party which is interested in the proper working of the wakf. It is not denied that these property in respect of which attachment is sought for is a wakf property. Hence it would be in the fitness of things and most proper an order to have been made that party 3 be impleaded as a party interested in the proceedings. The learned Magistrate however has taken the view that in the application itself this party should have indicated and showed that no dispute exists or has existed '. That to my mind appears to be placing the cart before the horse. It is only when the party has been impleaded can he take the plea as envisaged under Section 145 (5) Cri. P . C. Hence, the order of the learned Magistrate in this regard is to be set aside and it is so ordered. Party 3 viz., Mysore Muslim Wakf Board is directed to be impleaded as a party to the proceedings . Accordingly the Criminal Petition No. 341 of 1961 is allowed, so also Criminal Revision Petition No. 186 of 1960.
(8) Petitions allowed.