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Nasarullah Vs. S. Wajid Ali and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad
Decided On
Reported inAIR1932All362
AppellantNasarullah
RespondentS. Wajid Ali and anr.
Excerpt:
.....its character is clearly determined by an order of the commissioner passed in 1843. the learned district judge has referred to the terms of that order which satisfied him that the property in question was wakf for the support and upkeep of a mosque and incidental purposes, including the maintenance of a muazzin who is to be selected from among the descendants of the original muttawali the applicant's ancestor. section 10 makes failure to furnish particulars as required by section 3 or to file statements of accounts as required by section 5 punishable with fine which may extend to rs. admitted or are established by evidence, if denied, section 10 is equally applicable, if a muttawali has failed to comply with section 3. if a muttawali has complied with the provisions of section 3, no..........the terms of section 10. section 3 requires every mutta wali to furnish particulars of the wakf property in his possession. section 5 requires him, if he has furnished particulars under section 3, to file a statement of account within three months after 31st march following the passing of act 42 of 1923 and thereafter within three months after 31st march of each year. section 10 makes failure to furnish particulars as required by section 3 or to file statements of accounts as required by section 5 punishable with fine which may extend to rs. 500. it has been argued before us that act 42 of 1923 is applicable only to cases in which a muttawali accepts his position as such and furnishes particulars required by section 3. this contention is correct so far as the muttawali's omission.....
Judgment:

Pullan, J.

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. Wajid Ali : AIR1930All81 . 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.

4. As regards the first question, Section 10 makes an omission to do what is required of a muttawali by Section 8 or Section 5 of the Act to be punishable. As both these sections make use of the words 'muttawali' and 'wakf,' we must consider, at the threshold of the case, whether the applicant is a muttawali and the property in question in the present case is wakf. 'Wakf' has been so defined in Act 42 of 1923, Section 2(e), as to include all endowments other than those to which the Mussalman Wakf Validating Act (6 of 1913) applies. In other words, all wakfs other than wakfsalal aulad are within the purview of Act 42 of 1923. The property in dispute in this case has been in possession of the applicant and his predecessors for a considerable length of time, and its character is clearly determined by an order of the Commissioner passed in 1843. The learned District Judge has referred to the terms of that order which satisfied him that the property in question was wakf for the support and upkeep of a mosque and incidental purposes, including the maintenance of a muazzin who is to be selected from among the descendants of the original muttawali the applicant's ancestor. Nothing has been said on behalf of the applicant which can induce me to differ from the view taken by the learned District Judge as regards the character of the property in possession of the applicant. I am therefore in entire agreement with my learned colleague that the property in question is wakf and not dedicated for the personal benefit of the descendants or family of the wakf. The applicant himself professed to act as muttawali and thereby admitted his position as such, in furnishing particulars of the property in his possession, as required by Section 3, Act 42 of 1923. It follows from what has been said already that the property in question is wakf within the meaning of that Act and the applicant is the muttawali thereof.

5. It is necessary to refer to two sections of Act 42 of 1923 before examining the terms of Section 10. Section 3 requires every mutta wali to furnish particulars of the wakf property in his possession. Section 5 requires him, if he has furnished particulars under Section 3, to file a statement of account within three months after 31st March following the passing of Act 42 of 1923 and thereafter within three months after 31st March of each year. Section 10 makes failure to furnish particulars as required by Section 3 or to file statements of accounts as required by Section 5 punishable with fine which may extend to Rs. 500. It has been argued before us that Act 42 of 1923 is applicable only to cases in which a muttawali accepts his position as such and furnishes particulars required by Section 3. This contention is correct so far as the muttawali's omission to file a statement of accounts under Section 5 is concerned, because he has to file such statement only if he has already furnished particulars under Section 3. It is however incorrect to say that a person is not liable to be punished under Section 10 at all unless he admits certain property in his possession to be wakf and himself to be the muttawali thereof Section 10 makes; omission to furnish particulars as required by Section 3 also punishable. All that; is needed to bring home an offence under Section 10 read with Section 3 to a defaulting muttawalli is to establish by evidence that he is a muttawali in respect of property which is wakf within the meaning of Act 42 of 1923. Whether the character of the property as wakf and his own position as muttawali are; admitted or are established by evidence, if denied, Section 10 is equally applicable, if a muttawali has failed to comply with Section 3. If a muttawali has complied with the provisions of Section 3, no question as to; whether he denies the wakf or admits, it can arise because by his conduct in furnishing particulars of the wakf property he must be deemed to have admitted the wakf and his own positions as muttawalli.

6. The applicant in this case furnished particulars of the property in question under Section 3. He cannot therefore be convicted of an offence under Section 10 read with Section 3. Nor has the learned District Judge convicted him of such offence. But, having furnished particulars required by Section 3, he was also under an obligation to file a statement of account in terms of Section 5. He omitted to do so. Section 10 makes such omission to be as much punishable as the noncompliance with the provisions of Section 3, the penalty in either case being the same. In these circumstances, I do not think there is anything wanting in the case before us to complete an offence under Section 10, Act 42 of 1923, and so far as the applicant's liability to pay the penalty provided for by Section 10 is concerned, there can be no doubt.

7. The next question which is not free from difficulty, relates to the Court empowered to enforce the penal provision contained in Section 10. I was a member of the Bench which decided Nasarullah Khan v. Wajid Ali : AIR1930All81 , which is, in fact an earlier stage of the case before us, The only question which called for decision in that case was whether Section 5, Act 42 of 1923, apart from laying an obligation on a muttawali to furnish a statement of account, also contemplated regular proceedings being taken before the District Judge for the determination of the question whether a certain property is wakf or whether a certain person is a muttawali in respect thereof. It was held that Section 5 did not empower the District Judge to decide these questions in a proceeding taken by interested parties under Section 5. The Court went on to observe that the determination of such questions may be necessary if the muttawali is prosecuted for an offence under Section 10, and the alleged muttawali denies facts which establish his offence and which have to be enquired into. As regards the forum, it was assumed rather than decided that the District Judge can enforce the penal provision contained in Section 10. Any remark therefore as to whether the District Judge could impose the fine provided for by Section 10 is in the nature of an obiter dictum. The question has directly arisen in the present case and must be decided though, I may note that it was not argued before us that any Court other than that of the District Judge, could impose a fine under Section 10. The applicant's contention was that no Court had jurisdiction to do so in the circumstances of the case. We cannot however refuse to take notice of the narrower question, namely, whether the District Judge as such can take cognizance of a case under Section 10.

8. On the one hand it can be reasonably contended that Section 10 contains merely a penal provision which declares a certain omission to be an offence punishable with fine, that the manner in which and the Court by which the penalty is to be enforced are outside the purview of Act 42 of 1923 and that the muttawali should be punished by a regular criminal Court in accordance with the provisions of the Criminal Procedure Code. There are many enactments, besides the Indian Penal Code, which declare certain act and omissions to be offences, though the trial for those offences is regulated not by those Acts but by the general criminal law. On the other hand, the whole scheme of Act 42 of 1923 suggests that the District Judge is the proper authority to impose the penalty provided for by Section 10 in respect of certain duties enjoined by that Act. Section 11 requires the Local Government to make rules 'to carry into effect the purposes of this Act,' This seems to include rules prescribing the forum and the procedure for enforcement of the penalty laid down in Section 10. No rules have however been framed by the Local Government in this behalf. In this state of things, I am inclined to the view, though not without hesitation, that the District Judge is the proper authority to enforce the provision contained in; Section 10, Act 42 of 1923. For these reasons, I concur with my learned brother in dismissing this revision.

9. We dismiss this application. The parties shall bear their own costs.


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