The Allahabad High Court while rejecting an application held that the protection of Section 197 of CrPC is not available to the Waqf Board for prosecuting a mutawalli. In this section, the permission of the government is necessary before prosecuting public servants.

The Single-Judge Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application filed by Abu Talib Husain and Another.

The 482 Cr.P.C. application has been filed to quash the entire proceedings of case under Sections-323, 504, 506, 354 I.P.C, Police Station-Kotwali Nagar, District- Saharanpur as well as summoning order dated 3.9.2022 passed by the Additional Chief Judicial Magistrate, Saharanpur and is pending before the first Additional Civil Judge (Jr Div)/Judicial Magistrate, Saharanpur.

Contention of the counsel for the applicants is that the impugned FIR was lodged and charge sheet was filed after conducting investigation on which cognizance was also taken by the Court but as per Section-101 of Wakf Act, 1995, mutawalli of waqf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860. Applicant no1 is mutawalli of waqf Karbala, Nai Basti, Behat Road, Saharanpur, therefore, as per Section-197 Cr.P.C, cognizance is bad by the Court because no sanction from appropriate Government was taken before taking such cognizance.

It is further submitted that applicant no 2 is father of applicant no1 and also assisted the applicant no 1 in discharge of public duty.

On the other hand, AGA has opposed the above submission and submitted that Section-101 of the Act, 1995 is a deeming provision for the discharge of duty and Section-197 Cr.P.C is applicable only on public servant who cannot be removed without sanction of the State Government whereas for the removal of applicant no 1, sanction of State Government is not required and Section-197 Cr.P.C is not applicable in the case.

The Court observed that,

Considering the submission of the counsel for the applicant as well as AGA for the State, the sole question arises if the mutawalli was deemed to be public servant under Section-101 of the Act, 1995, then merely because he is deemed to be public servant is also entitled to protection under Section-197 CrPC.

From perusal of the above section of the Act, 1995, it appears that not only mutawalli of waqf but every member of Managing Committee of waqf are also deemed to be a public servant within the meaning of Section-21 IPC. But despite the above deeming provision mutawalli can be removed by the waqf board as per Section-64 of the Act, 1995.

For applicability of Section-197 Cr.P.C, following three conditions must be satisfied: (a) accused is a public servant; (b) that the public servant can be removed from the post by or with the sanction either of Central or the State Government as the case may be; (c) the act giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his duty.

Therefore, for applicability of Section-197 Cr.P.C even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government.

The Apex Court in the case of Manish Trivedi Vs State of Rajasthan reported in (2014) 14 SCC 420 observed that if any act creates a legal fiction to a particular category of employee by adopting the condition of Section-197 Cr.P.C then those employees are entitled to get the protection of Section-197 CrPC.

In the above mentioned judgement, Section-87 of Rajasthan Municipalities Act, 1959 created legal fiction that members of municipal board will be deemed to be public servant as per Section 21 IPC but the word ‘Government’ mentioned in Section 197 Crpc was deemed to be substituted by municipal board and for that reason member of municipal board Rajasthan was declared as public servant for the purpose of Section 197 CrPC.

“In the case, though by a deeming provision of Section 101 of the Act, 1995 mutawalli was declared as public servant but to satisfy the second condition of Section 197 Cr.P.C, the word ‘Government’ was not replaced by waqf board, therefore, despite the fact that mutawalli was declared to be public servant by Section 101 of the Act, 1995. All conditions for applicability of Section-197 Cr.P.C are not fulfilled, therefore mutawalli of waqf board despite being deemed to be a public servant are not entitled to protection under Section 197 CrPC”, the Court further observed while rejecting the application.

The Rajasthan High Court has held that  the Chief Executive Officer has no power under the Wakf Act, 1995 to issue any declaration of a property to be a Wakf property.

The Division Bench of Chief Justice Pankaj Mithal and Justice Sandeep Mehta allowed a PIL seeking removal of illegal possession and encroachment on Oran land of Patwar Area Asada, Tehsil Jasol, District Barmer by the respondent No. 4 (Rajasthan Board of Muslim Wakfs) and to question the legality and validity of the letter/ communication dated 08.01.2019 issued by the Chief Executive Officer of the Wakf Board to the District Collector, Barmer to register/enter the said khasra as Wakf property by exercising powers under Section 37 of the Wakf Act, 1995.

It is observed by the Bench that a prayer was made by certain villagers of Village Asada to the Wakf Board to declare the Khasra comprising of 38 bighas as Wakf property in 2013. Along with the  application, a copy of Jamabandi was presented, wherein total land of 33 bighas is shown in the Khasra and is entered as Gair Mumkin Oran. Certain photographs were also filed along with this application.

The Chief Executive Officer forwarded notices to the Tehsildar concerned for publication in the village. The matter pertaining to the land in question was reported to be lis pendense before the Rajasthan Wakf Tribunal wherein, a status quo order was passed and thus, the decision was deferred.

A noting dated 22.03.2017 was recorded on the file that no objections had been received despite publication of notices with intent to declare the property in question as Wakf property.

Matter relating to the land in question was pending before the Tribunal and thus, legal opinion was sought. On 24.03.2017, it was noted that 33 bighas of land of the Khasra in question was reported to be Kabristan and accordingly, an order was passed on 28.03.2017 by the Chief Executive Officer entering the land as Kabristan in the register maintained under Section 37 of the Wakf Act, 1995 and the decision was conveyed to the Tehsildar, Pachpadra for consequential changes in the revenue record.

On a perusal of the original record received from the Wakf Board, the Court noted that the direction to enter the land  as Wakf property in the register maintained under Section 37 of the Wakf Act, 1995 was given without finding out   the fate of litigation which was reportedly pending before the Wakf Tribunal.

“Under Section 32 of the Act of 1995, only the Wakf Board has been given the power to declare any property to be a Wakf property and to administer the same. Apparently thus, the Chief Executive Officer has no power under the Wakf Act, 1995 to issue any declaration of a property to be a Wakf property.”
 

On a perusal of the original record, the Bench further noted that no meeting whatsoever was ever held of the Wakf Board for the purpose of declaration of the land in question to be Wakf property.

Furthermore, the so-called enquiry made by the Chief Executive Officer and the minutes recorded therein do not give any indication that the Chief Executive Officer had any plausible evidence regarding the entire chunk being used as a Kabristan.

Apparently thus, the direction given by the Chief Executive Officer to the Tehsildar concerned conveying its decision to enter the land  as Wakf land is totally illegal and without jurisdiction , the Court held.

Law is well settled by a catena of judgments of the Supreme Court and the High Court that nature of land entered as forest in the revenue records cannot be altered. The High Court referred to regular directions given by the Supreme Court in the case of In Re T.N. Gondavarman Thirumulpad vs Union of India (WP (Civil) No.202 of 1995).  

Consequently, the Court is of the firm opinion that apart from the fact that there is no valid decision of the Wakf Board justifying the attempted declaration of land in question to be a Wakf property, in addition thereto, no such direction is permissible in view of the directions given by Supreme Court in the case of T.N. Gondavarman Thirumulpad (supra).

The communication dated 08.01.2019 forwarded by the Chief Executive Officer, Wakf Board to the Tehsildar Pachpadra is illegal and without jurisdiction and hence the same is quashed. Consequently, the respondents are restrained from making any effort to enter the land  as Wakf property. 

At the same time, the Court observed that land and measuring 2.1 bighas referred to in the factual report annexed with the additional affidavit of the District Collector, Barmer shall be continued to be used as a burial place.

“These directions would not preclude the right of the Muslim population of the village Asada to make a request for a dedicated burial ground”, clarified by the High Court.