1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CIVIL REVISION APPLICATION NO. 242 OF 2007 01 Syed Abdul Razzak Aminuddin, Malang Badshah Quadri, age 70 years,occ. Spiritual Preacher and also the Chairman of the Wakf Hazrat Gaiban Shah Baba, Tape, J.P.Road, Dhake Colony, Andheri West, Mumbai 400 053, 02 Hazrat Gaiban Shah Baba Syed Aminuddin Malang Badshah Quadri, Dargah, G.P.Road, Dhake Colony, Andheri West, Mumbai 400 053 Through its Chairman Syed Abdul Razzak Aminuddin Malang Badshah Quadri, c/o as above. ...Petitioners (Orig. plaintiffs) VERSUS 01 Maharashtra State Board of Wakfs Head Office Panchakki, Aurangabad (M.S.) through its Chief Executive Officer, c/o as above, 02 Azam Shaikh, age major, occ. Business, Aminuddin Malang Badshah Quadri Dargah, G.P.Road, Dhake Colony, Andheri West, Mumbai 400 53, 03 Shabbir Khan, age major, occ. Business, Aminuddin Malang Badshah Quadri Dargah, G.P.Road, Dhake Colony, Andheri West Mumbai 400 053, 2 4 Mobin Khan, age major, occ.business, c/o as above Respondent Nos. 2 to 4 deleted in trial court. 05 Nashad Ahmed Mustafa Khan, age major, occ. Business, c/o as above, 06 Mohd Yusuf Abdul Gani, age major, occ. Business, r/o Tere Galli, Patel, Apartments, Juma Masjid, Room No. 11,Versova, Andheri, Mumbai 61, 07 Raja Balram Vizin, Age major, occ. Business, Geeta Prakash Society, 62 Plot No.;742, J.P.Road, Four Bungalow, Andheri, Mumbai 61, 08 Abdul Sattar Khan s/o Abdul Gaffar Khan, age major, occ. Business, Talialala Chal, Near Janta Stone, Jogeshwari, Mumbai 102, 09 Roshan Khan, age major, occ. Business, Chitta Camp, D-Sector, Sector 12, Chembur, Mumbai 98, 10 Deelip Shivram Some, age major, occ. Business, r/o Savera Co-operative Housing Society, Veera Desai Road, Andheri, Mumbai 53, 11 Nelson Albert Decouz, age major, occ. Business, r/o Denis Vela, Veera Brothers, 3 Compound Veera Desai Road, Andheri West, Mumbai 53, 12 Jumma Abdul Khan, age major, occ. Business, r/o Abdul Khan Chal, Veera Brothers Compound, Veera Desai Road, Andheri, Mumbai 53, 13 Farook Osman Shaikh, age major, occ. Business, Jamat Khana, Gaon Devi Dongari, Andheri, Mumbai 58 14 Naryan Shankar Agori, age major, occ. Business, Dhoke Colony, Talip Dargah Varsova Road, Andheri, Mumbai 53, 15 Mohd Husain Abbas Khandwani, age major, occ. Business, r/o Shantram Chaal, Pandu Patil, Lane, Kaka Patil, Near Andh Ashram Andheri West, Mumbai 58, 16 Muzafar Ali Miskin Khan, age major, occ.business, r/o Gulshan Nagar, Sultanabad 15/203, Colony, Jogeshwari West, Mumbai 400 102, 17 Niyaz Ahmed Noor Mohd. Shaikh, age major, occ.business, Dhoke Colony, Tape Dargah, Varsova Road, Andheri, Mumbai 53. ...Respondents (Orig. Defendants) ..... Shri S.V.Gangapurwala, advocate for the petitioners Shri J.R.Shaikh, advocate for respondent no.1 Shri A.P.Bhandari, advocate for respondent nos. 15 and 16 Shri P.V.Mandlik, Senior advocate instructed by 4 Shri Mujtaba Gulam Mustafa, advocate for respondent no.17 ..... Coram : SHRIHARI P.DAVARE, J. Date of reserving the judgment : 06.07.2009 Date of pronouncing the judgment : 18.07.2009 J U D G M E N T : 1 Perused. 2 The challenge in the present Civil Revision Application is to the correctness and legality of the order passed below Exh. 46 in Suit No. 109 of 2007 by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad on 1.12.2007, thereby rejecting the plaint against defendant no.1 therein under Order 7 Rule 11(d) of the Code of Civil Procedure r/w Section 89 of the Wakf Act, 1995. 3 Briefly stated, the factual matrix of the matter are that the present petitioners (original plaintiffs) had filed Suit No. 109 of 2007 against the present respondents before the Maharashtra Wakf Tribunal, Aurangabad for declaration that resolution dated 28.4.2005 and notification dated 29.11.2005 be declared as null 5 and void and be quashed and also for the perpetual injunction and requested to restrain defendant nos. 2 to 11 and 17 from causing the obstruction and interference in the day to day management and supervision of the Wakf institution Dargah Hazrat Gaiban Shah Baba Syed Aminuddin Malang Badshah Quadri, Tape, J.P.Road, Dhake Colony, Andheri West, Mumbai. 4 Respondent no.17 (original defendant no.17) moved an application Exh.46 and thereby contended that petitioners/plaintiffs have not issued notice to defendant no.1 under Section 89 of the Wakf Act and as such the said suit filed by the plaintiffs was not maintainable and, therefore, prayed that the said suit be dismissed for want of notice under Section 89 of the Wakf Act. The present petitioners have filed say at Exh.48 and thereby opposed the said application. Considering the rival contentions, the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad allowed the said application, and thereby rejected the plaint against defendant no.1 under Order 7 Rule 11 (d) of the Code of Civil Procedure r/w Section 89 of the Wakf Act, 1995 and further directed that the suit shall proceed against the other defendants, since they are private parties, as per the provisions of the Code of Civil Procedure vide order passed on 1.12.2007. 6 5 Being aggrieved and dissatisfied by the said order dated 1.12.2007 passed in Suit No. 109 of 2007 by learned Presiding Officer, Wakf Tribunal, Aurangabad, the petitioners herein have challenged its correctness and legality in the present Civil Revision Application. 6 The main attack of the petitioner in present Civil Revision Application, is that since the petitioner is complaining of the illegal acts on the part of the defendants and since the said illegal acts are not in consonance with law and are per se illegal, no notice under Section 89 of the Wakf Act is required. In other words, it is the contention of the petitioners that notice under Section 89 of the Wakf Act would not be necessary if the petitioners succeed in demonstrating that the act challenged of the defendants are not in consonance with the provisions of the Wakf Act, 1995. It is also canvassed by the learned counsel for the petitioners that the notification dated 29.11.2005 has been issued by the Additional Collector and the Chief Executive Officer of Maharashtra State Board of Wakf, Aurangabad and not by the Maharashtra State Board of Wakf, Aurangabad, and, therefore, issuance of notice under Section 89 of the Wakf Act, 1995 is not mandatory prior to institution of the suit. 7 7 It was further canvassed that the very scheme of Order 7 Rule 11 of the Code of Civil Procedure in respect of rejection of plaint nowhere contemplates the rejection of the plaint in part as happened in the instant case. 8 Learned counsel Shri Gangapurwala for the petitioner further submitted that defendant no.1 Board has not taken any objection of non-issuance of the notice under Section 89 of the Wakf Act, but respondent no. 17 has taken the said objection, who has no locus standi therefor. It is also submitted that since defendant no.1 has not raised the said objection, it amounts to deemed waiver of the said notice and therefore, there was no impediment in entertaining and proceeding with the suit, and accordingly, the impugned order of rejection of plaint against defendant no.1 is bad in law. 9 The learned Senior counsel Shri P.V.Mandlik appearing for respondent no.17 submitted that the main relief sought in the suit no. 109 of 2007 is against the Maharashtra State Board of Wakf and, therefore, the said relief is against the authority and not against it’s Chief Executive Officer and, therefore, it is submitted that the notice under Section 89 of the Wakf Act, 1995 8 prior to filing of suit no. 109 of 2007 by the plaintiffs herein is mandatory and due to non-issuance of notice before institution of the said suit no. 109 of 2007 is fatal to the case of the petitioners. 10 It is further submitted that there is no analogy between notice under Section 89 of the Wakf Act, 1995 and notice under Section 80 of the Code of Civil Procedure, since there is provision of sub-section (2) of Section 80 of the Code of Civil Procedure that suit may be instituted with the leave of the court, if the court is satisfied, but such provision is not there under Section 89 of the Wakf Act, 1995, which leads to the position that concept of deemed waiver of the notice under Section 89 of the Wakf Act cannot be imported. It is further canvassed that there is no prohibition to reject the plaint partly against some of the defendants and rejection of the plaint against defendant no.1 by impugned order under Order 7 Rule 11 of the Code of Civil Procedure is not illegal. It is also pointed out that there is no illegality or perversity in the impugned order which is the very scope of the Civil Revision Application and, therefore, it is submitted that there is no substance in the present Civil Revision Application, since no illegality is found therein. 11 Learned Senior counsel Shri P.V.Mandlik for respondent 9 no. 17 also submitted that the objection regarding non-issuance of mandatory notice under Section 89 of the Wakf Act pertains to law point. It is not necessary that only defendant no.1 Board can raise the said objection as contended by the learned counsel for the petitioner. The objection can be raised by any of the defendants and so was raised by defendant no.17 in Suit No. 109 of 2007 and there is no illegality therein. Besides, learned Senior counsel Shri P.V.Mandlik also further submitted that silence of defendant no.1 in not raising objection regarding non-issuance of mandatory notice under Section 89 of the Wakf Act will not amount to deemed waiver of the said notice, as canvassed by the learned counsel for the petitioner, since there is no provision of deemed waiver of the said notice under Section 89 of the Wakf Act, 1995, as there is no similarity and analogy between the notice under Section 89 of Wakf Act, 1995 and notice under Section 80 of the Code of Civil Procedure. 12 Shri J.R.Shaikh, learned counsel appearing for respondent no.1 submitted that as per language used in Section 89 of the Wakf Act, 1995, the court shall not allow the institution of the suit against the Board unless notice under Section 89 of the Wakf Act in writing has been delivered and as per Section 26 of the Code of Civil Procedure, every suit shall be instituted by 10 presentation of the plaint or in such other manner as may be prescribed and since the word “shall” is used in Section, such presentation of the suit cannot be permitted by the court unless notice under Section 89 of the Wakf Act is delivered to the Maharashtra State Wakf Board under Section 89 of the Wakf Act, 1995. 13 It is also submitted the learned counsel for respondent no.1 that the Code of Civil Procedure is a general Code; whereas the Wakf Act, 1995 is a special Act, which will override the provisions of the general Code and the provision like sub-section (2) of Section 80 of the Code of Civil Procedure for dispensing with the notice is not provided under Section 89 of the Wakf Act, 1995 and hence notice under Section 89 of the Wakf Act, 1995 cannot be waived like waiver of notice under section 80 of the Code of Civil Procedure. It is further submitted that the provisions of Order 1 Rule 3 of the Code of Civil Procedure permit the separate trial and, therefore, there cannot be any bar for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure partly. Hence, it is canvassed that there is no perversity and illegality in the impugned order and accordingly respondent no. 1 supported the impugned order. 11 14 Considering the rival submissions made by the learned respective counsel for the parties, at the out set Section 89 of the Wakf Act, 1995 is reproduced hereunder for the reference purpose :- “ 89. Notice of suits by parties against Board :- No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. “ 15 Keeping in mind the very language of the said Section and coming to the resolution dated 28.4.2005 and the notification dated 29.11.2005, which were under challenge in the Suit No. 109 of 2007 before the learned Presiding Officer, Maharashtra State Wakf Tribunal, Aurangabad, it is clear that the said resolution dated 28.4.2005 was passed in the meeting of the Maharashtra State Board of Wakfs held on 28.4.2005, and accordingly, said resolution was passed by the Board and not by the Chief Executive Officer of the said Board, as tried to be canvassed by the learned counsel for the petitioners. True it is that the said resolution has been signed by the Chief Executive Officer, but it is 12 not the resolution of the Chief Executive Officer in his personal capacity and he signed on the said resolution for and on behalf of the Board and it is the resolution of the Maharashtra State Board of Wakfs, Aurangabad. 16 So is the position with the notification dated 29.11.2005, which was under challenge in the said suit and although it was signed by the Additional Collector and the Chief Executive Officer of the Maharashtra State Board of Wakfs, Aurangabad, ex facie it is seen that it is the notification of the Maharashtra State Board of Wakfs, Aurangabad and not of the Additional Collector and the Chief Executive Officer in his personal capacity and he signed for and on behalf of the Board thereon. 17 In view of the said position, the resolution dated 28.4.2005 and the notification dated 29.11.2005 which were under challenge in the said suit, are the documents issued by the Maharashtra State Board of Wakfs, Aurangabad i.e. The acts done by the Board and, therefore notice under Section 89 of the Wakf Act, 1995 is mandatory prior to institution of the suit against the said Board in respect of the said acts. 18 In the said context, the contention of the learned 13 counsel for the petitioners, that if the petitioners succeed in demonstrating that the acts challenged of the defendants are not in consonance of the provisions of the Wakf Act, 1995 then notice under Section 89 of the Wakf Act, 1995 would not be necessary, would amount putting the cart before the horse, and hence, there is no substance in the said argument. Moreover, it is also seen that the main relief sought in Suit no. 109 of 2007 is against the Maharashtra State Board of Wakfs, Aurangabad and, therefore, the said relief is against the said authority and not against its Chief Executive Officer and therefore also, as rightly pointed out by Shri P.V.Mandlik, learned Senior counsel for respondent no.17 notice under Section 89 of the Wakf Act, 1995 prior to institution of Suit No. 109 of 2007 by the petitioners/plaintiffs herein is mandatory and the said non-issuance of mandatory notice under Section 89 of the Wakf Act, 1995 prior to institution of Suit No. 109 of 2007 is certainly fatal to the case of the petitioners. 19 It is also rightly pointed out by the learned Senior counsel Shri P.V.Mandlik for respondent no.17 that there is no similarity and analogy in notice under Section 89 of the Wakf Act, 1995 and notice under Section 80 of the Code of Civil Procedure, and both the said provisions are not akin to each other, since the provision of sub-section (2) of Section 80 of the Code of Civil Procedure of institution of the suit with the leave of the court 14 is not available under Section 89 of the Wakf Act, 1995. Hence, there is no concept of deemed waiver of notice under Section 89 of the Wakf Act and same cannot be imported thereunder, as canvassed by the learned counsel for the petitioners, due to silence on the part of defendant no.1 in raising the objection in respect of non-issuance of said notice before filing Suit No. 109 of 2007. 20 Moreover, the very language of Section 89 of the Wakf Act, 1995 clarifies that the said Section begins with non obstante clause and word used therein is “shall” and, therefore, the said notice under Section 89 of the Wakf Act, 1995 is mandatory and admits no exception. Accordingly, issuance of notice under Section 89 of the Wakf Act, 1995 is a condition precedent to the institution of the suit itself and the suit like this in hand instituted without issuance of notice in accordance with Section 89 of the Wakf Act, as in the present case, clearly fall under Order 7 Rule 11(d) of the Code of Civil Procedure, since the said notice is express and explicit and no deemed waiver is contemplated thereof, as canvassed by the learned counsel for the petitioners. 21 Coming to the next contention raised by the learned counsel for the petitioners regarding raising objection of non- 15 issuance of notice by defendant no.17, I am of the view that the objection regarding non-issuance of notice under Section 89 of the Wakf Act, 1995 pertains to law point and, therefore, objection can be raised by any of the defendants and it is not necessary that defendant no.1 only can raise the said objection and silence of defendant no.1 in not raising objection regarding non-issuance of notice under Section 89 of the Wakf Act will not amount to deemed waiver, since as mentioned above, the concept of deemed waiver of Section 89 of the Wakf Act, 1995 cannot be imported thereunder, as the very language of the said provision is express, explicit and mandatory, since the Wakf Act, 1995 is a special Act. 22 That takes me to the further argument canvassed by the learned counsel for the petitioners that the very scheme of Order 7 Rule 11 of the Code of Civil Procedure is unknown of rejection of plaint partly. In the said context, it is to be noted that Order 1 Rule 3 of the Code of Civil Procedure permits the separate trial and further there is no prohibition/bar for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure partly, since the very provision of Order 7 Rule 13 of the Code of Civil Procedure does not preclude the plaintiff from presentation of fresh plaint after rejection in respect of the same cause of action 16 and hence, the said contention of the petitioner also does not bear any substance. 23 Reliance can very well be placed on the observations made by the Honourable Supreme Court in the case reported at (2001) 2 AP LJ 489, A.P.State Wakf Board v. Tati Venkata Sheshagiri Rao [E.Dharma Rao, J.], which are as follows :- “ No suit shall be instituted against the Wakf Board in respect of any act purporting to be done by it in pursuance of the Act or any Rules made thereunder unless two months notice is issued prior to the filing of the suit. The section further contains that notice in writing containing the cause of action, the name of plaintiff and description and place of residence and the relief sought for should be left at the office of the Board. Thus sub-s. (2) of S.80 of the Code requires issuance of notice before institution of the suit against the Government of Public servant, but it can dispense with the same for passing any urgent or immediate order against the Government. This exception is not present in S.89 of the Act. The Legislature in its wisdom has not given any option to the plaintiff intending to file a suit against Wakf Board to file a petition to dispense with the issuance of 60 days notice. Therefore, as seen from the language imported in the Section, it is mandatory on the part of any person who claims to institute any suit against the Wakf Board in respect of any act purported to be done in pursuance of the Act or Rules made thereunder, have to issue 60 days notice with the particulars contained in the section. “ 17 24 Reliance also can be placed on the observations made by the Madras High Court in the case reported at AIR 1982 MADRAS 202, Rahmath Bi v. State Wakf Board [Ratnam, J.], in respect of erstwhile Section 56 of the Wakf Act, which are as follows :- “ The court cannot make exceptions or qualifications to the explicit terms of S.56 on account of consideration of hardship and absence of prejudice or detriment. A defect, as in the present case, cannot be equated to a formal defect contemplated by O.23, R.1 (3) Civil P.C. It is a radical defect going to the root of the claim of the plaintiff (petitioner). S.56 is express,explicit, mandatory and admits of no exceptions. Therefore, the issue of a notice under S. 56 is a condition precedent to the institution of the suit itself. Cases where suits have been instituted without the issue of a notice in accordance with S. 56 as in the instant case, are cases which clearly fall under O. 7 R. 11 (d) C.P.C. “ 25 In the circumstances, it is amply clear that there is no illegality and/or perversity in the impugned order passed by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad in Suit No. 109 of 2007 below Exh.46 on 1.12.2007 and, therefore, no interference therein is warranted under the revisional jurisdiction. 26 In the result, present Civil Revision Application bears 18 no substance and same is devoid of any merits and, therefore, same fails and accordingly same stands dismissed. In the facts and circumstances, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) dbm/cra242.07