1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.59 OF 2010 Date of decision:30/11/2010 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/59-10 cra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.59 OF 2010 Committee Khuddamin Dargahjat Hadd-E-Kalan, Khultabad, through Its Chairman/President Abdul Rahaman Sultan Baksh Age 60 years, Occu. Business, r/o. Khultabad, Dist. Aurangabad. ...PETITIONER VERSUS 1. Maharashtra State Board of Wakfs Through its Chief Executive Officer, Panchakki, Aurangabad. 2. Chief Executive Officer, Maharashtra State Board of Wakfs, Panchakki, Aurangabad. ...RESPONDENTS ... Mr. S.B.Talekar, Adv., for the petitioner. Mr. S.A.G.Qureshi, Adv., for respondent nos. 1 and 2 / caveators. ... CORAM: K.U.CHANDIWAL, J. DATE :30/11/2010 *** ORAL JUDGMENT: 1. Heard finally. The orders dt.3.3.2010 in Application No.72/2009, recorded by the learned Presiding Officer, Maharashtra Wakf 3 Tribunal, Aurangabad, and also Resolution No. 42/2009 recorded by the Mharashtra State Board of Wakfs in its meeting held on 26th July, 2009 and notification published in Government Gazette dt. 29.10.2009 by Maharashtra State Board of Wakfs are sought to be quashed and set aside. 2. The petitioner is a Committee of Khuddamin Dargahajat Hadd-E-Kalan, Khultabad, dist.Aurangabad ( hereinafter referred to as "the Committee), In Charge of managing the affairs of the said Dargah and the properties attached to it. This Committee is constituted under a Scheme then prevailing for better administration and management of institutions, pursuant to the judgment and order dt.20th Sept.,1968, in Special Civil Application No.200/1996 passed by this Court, approved by the then Marathwada Wakf Board ( predecessor of present Board). The said Committee, apparently, is administering and managing its affairs. There is nothing to suggest, Petitioner Committee has disposed off immovable properties of the Dargah. 3. Complaints were entertained from interested persons in regard to management of the affairs of the petitioner and, consequently, a notice was issued, dt.6/20th Oct.,2007. This was replied by the petitioner. Inquiry Officer was appointed by order dt.28.2.2008 who served a 4 chargesheet on the petitioner. However, Shri Sayyad Faiz was substituted, by order dt. 15.4.2009. 4. The Inquiry Committee did not record adverse finding against the petitioner nor Respondent allowed to complete its process in the area of operation. 5. The grievance of the petitioner is, the Resolution in the Meeting scheduled to be held on 26.7.2009 vide Subject No.9, Resolution No.42, itself is bad and the subsequent notification, dissolving the Committee with immediate effect and assuming direct management in pursuance to Section 65 of the Wakf Act is also uncalled for. 6. The directions of the Executive Officer were questioned before the Maharashtra Wakf Tribunal and, as stated earlier, he did not agree to the petitioner and passed the impugned order rejecting the petition holding, it lacks jurisdiction as the order impugned is under Section 65 of the Wakf Act and in-built remedy is provided before the State Government. 7. Mr. S.B.Talekar, learned Counsel, apart from criticizing the vaccume in the resolution referred above, dt.26.7.2009 and Government notification, giving reference to Resolution No. 5 43 dt.29.10.2009, has criticized to the very composition of the Board as eight members were required to be on the Wakf Board but the resolution was passed by only one member. He pointed, the resolution is to be passed by two third majority of the members. 8. Mr.S.A.G.Qureshi, learned Counsel for the respondent, submits that the resolution dt. 26.7.2009 by one member was in tune to Section 22 of Wakf Act hence the resolution would not be vitiated. According to him, the status of the petitioners itself is under cloud, they are not legally appointed Mutawallis nor a duly constituted body. Consequently, Petitioner cannot function to manage the affairs of the Dargah. Mr.Qureshi submits that the inquiry could not be completed due to hindrances and the blocks created by petitioners by filing several suits. 9. In the affidavit in reply, it is pointed out in paragraph no.5 by the affiant Shri Sayyad Sadik Ali that the inquiry under Section 70 of the Wakf Act is still pending against the petitioner, inquiry is not abandoned. 10. In the above backdrop of the matter, it is explicit, Petitioners function as a managing committee is under a valid approval from the then 6 Wakf Board and for upsetting the same, requires a procedure to be followed, enumerated in Section 64 of the Wakf Act. 11. Taking recourse to Section 65 is illegal and beyond the scope of the powers vested in the learned Chief Executive Officer as Section 65 comes into play in an altogether different situation. Such powers are available only if there is no Committee or Mutawalli. As stated earlier, there being the Committee/ the petitioner, to repeat, the powers under Section 65 could not have been put in acceleration to chop off the subsisting rights of the petitioner. 12. Several complaints and the chargesheet may be illustrating mismanagement by the petitioner, however, for correcting the situation, clearing the cloud, a legal system under the Wakf Act strictly needs to be adhered. The authorities are not expected to be dictated with whims and surmises to take action under Section 65 which, indeed, did not project such situation. 13. There was no injunction for the authorities to conduct regular inquiry under Section 64, in tune with Section 70 and Section 71 of the Wakf Act. The bungling by the Chief Executive Officer is further multiplied having 7 surreptiously dropped the inquiry though chargesheet ( Exh.31) was slapped to the petitioner and new Inquiry Officer ( Page No.32) was appointed. The action under Section 64 is appealable under Section 83. Since the back- door entry of Section 65 was whipped off by the learned Chief Executive Officer, it should have been taken into consideration by the learned Presiding Officer of the Tribunal. The learned Presiding Officer did not venture to look into legal status and existence of the petitioner Committee, being elected by the members of Khudamins whose list is also with the Board. No opportunity of traversing with allegations was offered to the petitioner, suddenly the inquiry was dropped and unlateral action, referred above, was initiated. 14. Learned Counsel, has relied to the judgment of the Division Bench of this Court reported in 2010 (5) Mh.L.J. 484 ( Qamber Jeevaji Vs. State of Maharashtra). Paragraph no.20 therein deals with following situations: "22. Vacancies, etc., not to invalidate proceedings of the Board.No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof." It is obvious that said section is not an enabling provision but a saving one. It can not and does not mean that Wakf Board with defective composition and vacancies is allowed to proceed to decide and parliament has given it a license to do so. After 4/9/2008 notification 8 there were 9 members on Wakf Board and at present its strength is only 4. Precedents cited by learned Senior counsel, in this regard does not show any such leave to decide despite knowledge of defect. Hon'ble Apex Court in Gulzari Lal Agrwal vs. Accounts Officer, (supra) found that National Commission functioning under Consumer Protection Act,1986 set aside concurrent orders of District Forum and State Commission on the ground of jurisdiction as president of Commission was not party to decision and it was passes by only two members. In para 11, Section 29A of that Act worded like Section 22 of Wakf Act is noticed and then in para 17, Hon'ble Apex Court has gathered intention of legislature not to to render State Commission non functional in absence of president and it is found that in his absence, seniormost member is to function as president. Facts in Akhil Bharat Gosewa Sangha vs. State of A.P. and others (supra) reveal that the Chairman and MemberSecretary of A.P. Pollution control board (APPCB) did not posses necessary qualifications and Hon'ble Apex Court noticed that High Court did not address specific breach of statutory requirements in this respect though it noticed that some of its members were scientific experts. In this background the Hon'ble Apex Court considers Section 11 of the Water Act, which provides in terms that "No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Board or such committee, as the case may be." Therefore, applying Section 11 of the Act which clearly provides that no act or proceeding of APPCB or any committee thereof shall be called in question, Hon'ble Apex Court concluded that even if there was some defect in the composition of the APPCB, that would not invalidate the consent order issued by it. Observations of Learned Single Judge of Hon'ble Delhi High Court in Trilochan Singh Rana vs. Joginder Singh Bajwa (supra) are cited to explain interpretation of Section 22 of Delhi Sikh Gurudwaras Act,1971. That Section is in same words as Section 22 of the Wakf Act. The act of manging committee in coopting a person to fill up vacancy of coopted member without first filling in vacancy of elected member is found to be saved by Section 22 of said Delhi Act, 1971. All these judgments consider challenge to completed actions or decisions and aggrieved parties there did not try to stop the process midway as is attempted by petitioners before us. It is clear in present facts that Section 22 can not be invoked by State Government to urge that it can not be asked to fill in vacancy of shia member. Such provision also does not 9 help it to argue that respondent 2 Board can decide with its existing composition when number of elected members is less than nominated one and such decision will be valid. Section 22 of the Wakf Act carries with it an important rider that invalidation is not possible "by reason only of " existence of vacancy or defect in constitution. Hence, if invalidation is sought only on one ground the protection under Section 22 will be available to completed actions. But when more number of elected members is mandated by parliament with idea of infusing more democratic element or shia member on Wakf Board is prescribed to give the people of that sect an effective voice in Wakf Board affairs, the omission to have such more elected members or a shia member may prejudice the decision of Wakf Board. It can not be ignored that Wakf Board has to decide by majority and presently more than 50% of its posts are vacant. The object of parliament behind providing such type of arrangement and representation stands defeated. It is equally important to note that State Government is not coming up with any explanation or reason for not filling in these vacancies or for permitting the Wakf Board as it is. If interpretation of respondents is accepted, there can not be any challenge at any time to composition of Wakf Board and State would be free to violate scheme of Section 14 of Wakf Act. Section 22 is not intended as license to it to perpetuate such defects in composition or continue with such vacancies and thereby render other provisions of Wakf Act nugatory and irrelevant. We are not in position to accept the arguments of Shri Bhangde, learned Senior Counsel at least in present writ petition that purpose of Section 22 is dual ie to validated the acts and proceedings of Board and to keep the Wakf Board functional despite defects in composition or vacancies in it. " 15. The judgment in the matter of Qamber Jeevaji (supra) is illustrative of importance of composition of a full-fledged Wakf Board or the strength should be such that the provisions of Wakf Act should not be allowed to be put in cold storage or obliterated, to be meaningfully used by the officials concerned, being implacable to the procedure. 10 16. A spiral booklet shows several Resolutions are taken by the Wakf Board in single sitting. Even if it warrants criticism for the haphazard manner in which it has been acted upon, however, I do not wish to further condemn it as the Resolution under challenge itself is set at rest. 17. The observation of the Tribunal that in Terms of Section 65 the State Government is alone having revisional power though may be correct, however, that by itself would not take away the jurisdiction of the Tribunal to determine the dispute between the parties within the bracket of the Wakf Act. It is more so as the Tribunal's powers are illustrative to be wide enough to cover the situation. The Tribunal, apparently, failed to decide the application on merits by refusing to exercise its jurisdiction. This is violative of Section 83 of the Wakf Act. 18. In the result, Civil Revision Application allowed, Rule made absolute, (i) the order of learned Presiding Officer, rejecting the application No.72/2009 is set aside. (ii) Resolution dt.26.7.2009 and subsequent notification dt.29.10.2009 are set 11 aside. (iii) The respondents are at liberty to initiate action against the petitioner, pursuant to the complaint/representations, from the stage where it has stopped the inquiry and, (iv) The other legal remedies available to the respondents under the Wakf Act remain un- briddled and operative. Dt:30.11.2010 (K.U.CHANDIWAL) JUDGE AGP/59-10cra