Syed Ismail Sahib alias Syed Tahsildar Sahib and Another vs Ethikasha Sarguru alias Syed Chandu Sahib and Another

Burn, J.—This is an application to revise the order passed by the learned District Judge of Madura in O. P. No. 60 of 1938. That original

petition was filed u/s 10 of the Mussalman Wakf Act, XLII of 1923, desiring the lower Court to punish the respondents by way of fine for failure

to discharge their duties under the Wakf Act in connection with a darga called Hazarat Mohaiat Shaw Darga at Anuppanady village, near Madura.

The respondents denied that any such wakf existed, and pleaded that it was only a Criminal Court that could impose the fine indicated u/s 10 of the

Act. The learned District Judge thought that it was the District Court that had the jurisdiction to impose the fine, but held that since the wakf itself

was denied, it was not competent for him to hold an enquiry into that matter.

With regard to the first point, I am of opinion that the learned District Judge has not come to the correct conclusion. He relied upon the

decisions in Nasrullah v. Wajid Ali I.L.R.(1932) All. 475 Kalekhan v. Karim (1934) 37 Bom.L.R. 207 and Abdul Hadi v. Abdul Latiff AIR 1937

Nag. 135. But in all these decisions it is noticeable that the learned Judges have pronounced their decisions rather with reference to what they

consider to be ""the scheme of the Act"" than with reference to the wording of its provisions. In Section 2 of the Mussalman Wakf Act, XLII of

1923 ""Court"" is defined as:

The Court of the District Judge or, within the limits of the ordinary original civil jurisdiction of a High Court, such Court, subordinate to the High

Court, as the Local Government may, by notification in the local official Gazette, designate in this behalf.

The arguments which weighed with the learned Judges in the cases referred to was that the District Court is burdened with all the duties under

this Act and therefore the District Court must be the Court which can impose the fine provided in Section 10. This, however, with all respect, is in

my opinion not sound. Section 10 of the Act simply says that any person who is required to perform certain duties shall, if without reasonable

cause, he fails to perform those duties, be punishable with fine which may extend to Rs. 500 or in the case of a second or a subsequent offence

with fine which may extend to Rs. .2,000.

Now u/s 4 of the Code of Criminal Procedure ""Offence"" means any act or omission made punishable by any law for the time being in force. It is

clear therefore that Section 10 of the Wakf Act creates an offence, and indeed it says in so many words that the omission described is an offence.

Section 29 of the Code of Criminal Procedure runs as follows:

(1) Subject to the other provisions of this Code any offence under any other law (that is any law other than the Indian Penal Code) shall, when any

Court is taentibned in this behalf in such law, be tried by such Court.

(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which

such offence is shown in the eighth column of the second schedule to be triable.

There is no mention in the Wakf Act of any Court as a Court which shall impose the punishment provided in Section 10. In other words there is

no Court mentioned as the Court which shall try offences u/s 10. It follows therefore that the Court which can try those offences is the Court

indicated in the Criminal Procedure Code.

I may say that in my opinion, it would be contrary to all principle that the Court of the District judge should have the power to punish offences

u/s 10 of the Wakf Act with fine. In any such case the Court of the District Judge would be virtually in the position of prosecutor and Judge at the

same time. I find myself therefore, with all respect, unable to agree with the learned Judges who decided the cases already quoted. I would prefer

to follow, with respect, the decision of a Full Bench of the Lahore High Court in Shia Youngmen''s Association, Punjab v. Fateh Ali Shah ILR

(1941) Lah. 395. The Full Bench there answered in the negative the question whether, in case the muttawalli has not complied with the provisions

of the Act, the District Judge is empowered himself to impose a fine on him.

In the same judgment the Full Bench of the Lahore High Court decided that in proceedings u/s 10 of Act XLII of 1923, the District Judge has

no jurisdiction to hold an enquiry into the nature of the property where the alleged muttawalli denies the existence of the wakf. This is important

support for the view taken by the learned District Judge in the order which I am asked to revise. But it is not necessary for me to discuss that

question at length since learned Counsel for the petitioners agrees that if a decision on the other point is against the petitioners, the application to

the District Court must be considered to have been rightly dismissed.

This application to revise the order of the learned District Judge therefore fails and is dismissed with costs.