Abdeali Kadarbhai Vora vs District Government Pleader

John Beaumont, Kt., C.J.—This is an application in revision against an order made by the District Judge of Kaira fining the applicant Rs. 250 u/s 10 of the Mussalman Wakf Act of 1923. An application was made by the Government Pleader of Kaira to the District Court alleging that the present applicant had failed to render accounts u/s 3 of the Wakf Act and asking that he might be dealt with u/s 10 of the same Act. On that application the District Judge directed notice to issue, and subsequently he heard the application. The present applicant made two applications for adjournment in1 order to put in a written statement, and those applications were granted; but he put in no written statement, and ultimately his pleader withdrew on the ground that he had no instructions. Conduct of that sort does not enlist my sympathy, but the point raised on this application is that the District Court had no jurisdiction to deal with the matter.

u/s 3 of the original Wakf Act of 1923, accounts have to be rendered by the mutwalli of the wakf, and u/s 4(2) the Court may be directed to serve an order on the mutwalli requiring him to furnish further particulars and so forth. Section 10 provides that if any person who is required by or u/s 3 or Section 4 to furnish particulars fails and does various other acts specified, he shall be punishable with fine, but the Act does not say by what The Court whose sanction is to be obtained is clearly the Court as defined in Kalekhan v. Karim (1934) 37 Bom. L.R. 207, following two decisions of the Allahabad High Court, though, I think, with some hesitation, that the Court by which penalties could be imposed u/s 10 was the Court as defined u/s 2 of the Wakf Act, viz., the District Court. Now if the present case had arisen under the Wakf Act of 1923, I should have followed that decision, but since that decision was given, the legislature has passed the Mussalman Wakf (Bombay Amendment) Act of 1935, under which there is inserted in the principal Act, after Section 10, certain new sections, including Section 10B. Sub-section (1) of Section 10B provides that "no prosecution under this Act shall be instituted except by or with the previous sanction of the Court given in the prescribed manner." The Court whose sanction is to be obtained is clearly the Court as denned in Section 2, that is to say, the District Court. Sub-section (2) of Section 10B provides "that no criminal Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try an offence under this Act." That must involve that a criminal Court which is not inferior to that of a Presidency Magistrate or of a Magistrate of the First Class can try an offence under the Act. And if a criminal Court of that nature can try an offence under the Act it seems to me clear that the offence cannot also be tried by a District Court which is not a criminal Court. The basis of Mr. Justice Broomfield''s decision in Kalekhan v. Karim was that the only Court referred to in the Act was the District Court, but that basis no longer exists. In my judgment the effect of the two Acts as they now stand is that any prosecution u/s 10 of the principal Act must be with the sanction of the District Court and must be tried by a criminal Court not inferior to that of a Presidency Magistrate or of a Magistrate of the First Class. I think, therefore, that the proceedings must be quashed, and the parties will have to start de novo.

The fine, if already paid, will have to be refunded.

Opponent to pay costs of the applicant.