The main legal point established in the judgment is the interpretation of Section 68(2) of the Wakf Act, 1995, and the determination that the duty exercisable under this section is only by an Executive Magistrate.

The petition is filed under Section 482 Cr.P.C. to call for the records in S.T.C.No.111 of 2008 on the file of the learned Judicial Magistrate No.I, Trichy and quash the same.

2.The brief averments made by the petitioner is follows:

The petitioner is the Ex-Managing Trustee of the Wakf, which is known as “Hazrath Nabi Sallallahu Alaihi Vasallam Fathiha Wakf” Kuppangulam, Madurai Road, Trichirapalli (herein after called as “Wakf”). The Tamil Nadu Wakf Board had appointed the respondent as the Managing Trustee, which is challenged by the petitioner herein. The appointment of the Trustee of the said Wakf is the subject matter, which is now pending before the Supreme Court in S.L.P.No.3969 of 2008. When the Apex Court has seized of the matter, the respondent has been claiming as if he is the Managing Trustee. He had approached the learned Judicial Magistrate No.I, Trichirapalli, under Section 68 of the Wakf Act, 1995, for delivery of possession of the Wakf property. However, the learned Judicial Magistrate has no competency to receive a complaint, which is the subject matter before the Apex Court and also not correct in taking cognizance under the Wakf Act. The learned Judicial Magistrate who is referred to under Section 68 of the Act is only the Executive Magistrate and therefore, the complaint filed under Section 68(2) which was taken on file in S.T.C.No.111 of 2008 by the learned Judicial Magistrate No.I, Trichy is liable to be quashed. Therefore the petition is filed under section 482 0f Cr.P.C to quash the same.

3. The learned counsel for the petitioner would submit that the petitioner is the Managing Trustee for the above said Wakf and he continues to be the Trustee. The learned counsel further poited out that the Tamil Nadu Wakf Board had appointed three persons as Trustees, which is being challenged by the petitioner and the same is the subject matter in the Special Leave Petition before the Supreme Court and as such the respondent is not entitled to interfere with the possession of the Wakf properties, which is under the possession of the petitioner. The learned counsel pointed out that the Wakf Board has no authority over the private Wakf (Wakf-Aulad) and therefore, the appointment of the respondent as Managing Trustee by the Wakf Board is not valid and it is also being challenged and in the meanwhile, the respondent has approached the Judicial Magistrate for handing over possession which is illegal. The learned counsel also pointed out that the Judicial Magistrate mentioned under Section 68 (2) of the Wakf Act is only an Executive Magistrate and not a Judicial Magistrate and therefore, the Judicial Magistrate No.I, Trichy cand not take cognizance.

4. The learned counsel for the petitioner relied on an unreported judgment in Crl.R.C.No.526 of 2006 (Jaffer Maideen and Another Vs. Vallam Jumma Pallivasal Commitee) wherein a Single Judge of this Court has held that the Magistrate mentioned under Section 68(2) is not Judicial Magistrate and it is an Executive Magistrate and only under Section 68(3), the parties can approach the Judicial Magistrate for punishment. In the said case, this Court has held as follows:

“14.The definition given under Section 3(32) of the General Clauses Act for the term “Magistrate” will apply only in a case, where there is nothing repugnant in the subject or context in the relevant Act. As already pointed out, the conjoint reading of Section 68 and Section 61 of the Wakf Act, 1995 would indicate that the Executive Magistrate of the first class has the power to pass an administrative order, directing the delivery of charge and possession of records to the successor Mutawalli or the Committee. Any violation of such order, which is punishable under Section 68(3) of the said Act shall be tried by a Metropolitan Magistrate or a Judicial Magistrate of the first class on a complaint made by the Board or an officer duly authorized by the Board.”

5.The learned counsel for the petitioner also r