1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.122/2009. (Abdul Latif Abdul Gani Hakim and Anr. Vs. Bhandarshah Dargah Masjid and Ors.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.PM Shah, Sr.Counsel h/for Mr. AK Gawali, Adv. for petitioners; Mr.AP Bhandari, Adv. for Resp.Nos. 1 to 4; Mr.GD Shaikh, Adv. for Resp.No.5 Mr.SAG Qureshi, Adv. for Resp.No.6; *** CORAM : K.U.CHANDIWAL ,J. DATE : 14 th DECEMBER, 2010. ... 1) Heard finally. 2) Rejection of application Exhibit-116 moved by the petitioner in terms of Order VII Rule 10 CPC is questioned. 3) Having gone through the order of the learned Presiding officer of the Wakf Tribunal, it is explicit, he was tramble and influenced by time schedule fixed by this Court in CRA No.172/2008 by order dated 29.2.2009, than to transact on merits in the objection raised, vide Exh. 116. 4) The learned Presiding officer was expected, while traveling in the arena of Exhibit-116 to be guided by the 2 pleadings of the respondents herein, which in unequivocal terms illustrate in paragraph 7, - “Here it is stated that the plaintiffs are also approaching the Wakf Bord, i.e. the defendant No.13 for registration of all properties including suit properties under the Wakf Act, 1995. Even under Section 43 of the Wakf Act, 1995, the deemed registration is there and all the properties as per the object and its purpose are the Wakf properties.”, This could have eased the situation, in context to jurisdiction. 5) The other aspect in the matter is, of maintainability. The petitioners have been pleading that the properties, subject of litigation, was their private properties being CST No.386/1-A, 386/2-A and CTS No.386/A-1 (old survey No. 195) was in absolute ownership of Smt. Noorbee and after her death, the same devolved upon her daughter Smt. Badrunnisa. It was informed, no trust or Wakf exist in respect of the suit property, to which reference is made in the pleadings. 6) During the course of submissions, it is informed, even if when the trust was registered, the property in controversy was not subject of reference in the Index-I. This aspect also needs consideration by the learned Tribunal. 3 7) Mr.Shah, learned Sr. Counsel, has taken recourse to the judgment of the Apex Court in the matter of Official Trustee, W.B. and Ors. Vs. Sachindra Nath Chatterjee and Anr. reported in AIR 1969 SC 823, explaining the powers of the Court and how clauses in the trust-deed are to be interpreted. Reliance is also placed to the judgment in the matter of Begum Sabiha Sultan Vs. Nawab Mohd. Mansur Ali Khan and Ors., (2007) 4 SCC 343, dealing with the provisions of Order VII Rule 10, Sections 16(b), (d) proviso and Section 20 of CPC. 8) The learned Sr.Counsel also relied upon the decision in the matter of M.P.Wakf Board Vs. Subhan Shah (Dead) By Lrs. and Ors. Vs. (2006) 10 SCC 696, dealing with the provisions of Section 83, 7(5), 6 and 32(1) & (2)(d) & (e) of Wakf Act, 1995, informing what are the powers of the Tribunal, wherein it was held that the powers do not extend to framing of a scheme for managing the affairs of the wakf. Such powers are vested only with the Board. The Apex Court has also illustrated the scope of powers of statutory authorities and jurisdiction and explained, since there is legal bar, the powers vesting to the Board are to be exercised by Board alone. The learned Sr. Counsel further placed 4 reliance on T.N.Wakf Board Vs. Hathija Ammal (Dead) By Lrs and Ors. (2001) 8 SCC 528, dealing with the notification under Section 5(2) by Wakf Board and dispute if crept in between the parties. 9) The learned Presiding Officer was expected to consider Exhibit-116 of its own merits and even if he had any apprehension of contempt of the directions in CRA, he could have appropriately moved for extension. 10)In this context the illogical observations of the learned Judge are set aside. 11)The learned Presiding Officer shall decide Exhibit-116 afresh on its own merits notwithstanding the directions of this court dated 25.2.2009. 12)Parties to appear before the learned Presiding Officer of the Tribunal on 18th December, 2010. 13)CRA allowed to the extent indicated above. (K.U.CHANDIWAL) JUDGE bdv/