1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.180 OF 2009 Date of decision:9/2/2010 For approval and signature REPORTED HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/ 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 ? (A.G. PARALIKAR) Private Secretary agp/office/180-09cra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.180 OF 2009 1. Mr.Mohd.Ansar Salik, Age: 72 years, Occ: Business, r/o. 275/A, Guruwar Peth, Pune 411 042. 2. Mr. Anwar Baig Kadar Baig, Age: 65 years, Occ: Business, r/o. 286, Ganesh Peth, Pune 42. 3. Mr.Shaikh Mehboob Fakir Mohammad, Age: 65 years, Occ: Business, r/o. 33, Ghorpade Peth, Pune 411 042. 4. Mr.Abdul Aziz Nanwa Shaikh, Age 64 years, Occ: Business, r/o.714, Guruwar Peth, Pune 411 042. 5. Hashmuddin Moinuddin Inamdar, Age: 36 years, Occ: Business, r/o.715, Nand Peth, Pune 411 042. 6. Mr.Maqbool Bhai Haji Badshah, Age 56 years, Occ: Business, r/o 629, Ravivar Peth, Pune 411 042 7. Mr.Bagwan Jamshed Malik, Age 38 years, Occ: Business, r/o. 1577, Shukrawar Peth, PunVs. Dr.B.S.Mahajane 42. ...APPLICANTS (Orig.Non Applicants 2 to 8) 3 VERSUS 1. Mr.Shaikh Hamid Babumiya Inamdar, Age: 65 years, Occ: Retired, r/o. 395, Nana Peth, Pune -2 2. Mrs. Mumtajbai Masoom Shaikh, Age 70 years, Occ: Household, r/o. 395, Nana Peth, Pune -2 3. Miss Aminabai Babumiya Shaikh, Age 75 years, Occ: Housework, r/o. 395, Nana Peth, Pune -2 4. Mr.Mohammed Hussain Masoom, Age 33 years, Occ: Service, r/o. 395, Nana Peth, Pune-2. 5. Mrs. Farida Najmulla Hussain Mulla, Age 42 years, Occ: Housewife, r/o Gulisthan, Plot No.450, 14, Khar Road (W), Mumbai 400 052. 6. Ms.Nazima Masoom Shaikh Inamdar, Age 27 years, Occ: Housework, r/o. 395, Nana Peth, Pune-2 7. Mr.Akhtar Masoom Shaikh, Age 28 years, Occ: Service, r/o. 395, Nana Peth, Pune-2. 8. Mrs. Raziya Shaikh Noormohammed, Age 38 years, Occ: Housewife, r/o. 395, Nana Peth, Pune-2. 9. Mrs. Shainaz Masoom Shaikh Inamdar, Age: 38 years, Occ: Housewife, r/o. 395, Nana Peth, Pune-2. 10. Mr.Hajiali Shaikh Budhan, Age: 50 years, Occ: Business, r/o. 395, Nana Peth, Pune-2 4 11. Mr. Riyaz Shaikh Budhan, Age 45 years, Occ: Business, r/o. 395, Nana Peth, Pune-2. 12. Ms Maimuna Shaikh Budhan, Age 40 years, Occ: Housework, r/o. 395, Nana Peth, Pune-2. 13. Ms Shakila Shaikh Budhan, Age: 34 years, Occ: Housework, r/o. 395, Nana Peth, Pune 2. 14. Mrs. Shamim Shaikh Mohammad Sharif, Age 36 years, Occ: Housewife, r/o. 503/63, Laxmi Nagar, Near Premal Hanuman Mandir, Parvati, Pune 9 15. Mrs Reshma Irfan Khan, Age 27 years, Occ: Housewife, r/o. Room No.23, Patkar Plot No.8, Mahatma Gandhi Vasahat, Opp.Patil Estate,, Shivajinagar, Pune 411 005 16. Mrs. Abedabi Bashir Shaikh, Age: 65 years, Occ: Housewife, r/o. 395, Nana Peth, Pune 2 17. Mr.Shaikh Ajaz Mohammad Bashir Inamdar, Age 38 years, Occ: Rickshaw Driver, r/o. 395, Nana Peth, Pune-2. 18. Mrs. Malika Naushad Alisukhi, Age 40 years, Occ: Housewife, r/o Shantaram Das Building 2nd Floor, Pune. 19. Mrs. Almas Mustak Patel, Age 32 years, Occ: Housewife, r/o. 437, Rasta Peth, Pune 11. 20. Mrs. Mumtaj Shaikh Abdul Aziz, Age 53 years, Occ: Housewife, r/o. 749, Guruwar Peth, Pune 42. 5 21. Miss Aminabai Babumiya Shaikh, Age: 75 years, Occ: Housework, r/o. 395, Nana Peth, Pune-2. 22. Mrs. Kausar Musthak Mohammad Hussain Shaikh, age 24 years, Occ: Housewife, r/o. 607, Darshaninagar, Bibvewadi, Pune -37. 23. Mrs. Shaikh Ashabi Babumiyah, Age 43 years, Occ: Housework, r/o. 311, Bhavani Peth, Kashewadi, Pune -42. 24. Grace Constructions, A registered partnership Firm, Registered under the Indian Partnership Act, 1930, Office at 287, Guruwarpeth, Pune, through its Partners, (a) Shaikh Salim Mehmood, Age: Adult, Occ: Business, r/o. As above. (b) Abdul Rauf Shaikh Mehmood Chindhiwala, Age: Adult, Occ: business, r/o as above. ...RESPONDENTS (Orig.Applicants No.1 to 24) 25. Maharashtra State Board of Wakfs, Through its Chief Executive Officer, Panchakki, Aurangabad. ...RESPONDENTS (Orig.non applicant no.1) ... Mr. S.V.Gangapurwala, Adv., for the petitioner. Mr.A.K.Gawali, Adv., for respondent no.24. Mr.P.M.Shah, Senior Counsel, with 6 Mr.P.S.Shendurnikar, Adv., for respondent Nos. 1 to 23. ... CORAM: K.U. CHANDIWAL, J. DATE : 9/2/2010 *** JUDGMENT: 1. Heard, by consent, finally. Rule. Counsel for Respondents waives service. 2. An application under Section 36 of Wakf Act, 1995, was moved by the applicants herein with the Chief Executive Officer, Maharashtra State Board of Wakfs ( respondent no.25) ( hereinafter referred to as "C.E.O., Wakfs"), to register the property CTS No.395/A admeasuring 15.28 R. situate at Nana Peth, Pune, as a Wakf property ( hereinafter referred to as "the property"), to be in the name and style as Raj Mohammad Takiya of Nana Peth, Pune -2. The C.E.O., Wakfs, by his order dt.24.4.2008, directed to register the said property as Wakf property, and issued a certificate of registration to that effect. 3. This order was challenged by present respondent nos. 1 to 23 by an application bearing No.28/2008 before the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad. The present applicants submit, said proceeding was an 7 abuse of process of law as the respondent staked claim to the said property as ancestral property in spite of earlier judgment of this Court. An application Exh.33 invoking provisions of Order VI Rule 16 and Order VII Rule 11-A of C.P.C. was moved, thereby praying for striking of the pleadings and rejecting application no. 28/2008. The learned Presiding Officer of the Wakf Tribunal, by order dt.17.4.2009, rejected said application. The Civil Revision Application moved before this Court ( No.41/2009) is disposed of by this Court, keeping all points open. 4. Learned Presiding Officer, after hearing both the sides has, by order dt.24.9.2009, rejected registration of the property to be a Wakf property under the Maharashtra Wakf Act, said order is now impugned. 5. Mr. Gangapurwala submits that the learned Presiding Officer erred in ignoring and negating the effect of earlier litigation between the parties, arising out of First Appeal No.469/1977 dt.17.10.1989, confirmed in LPA Court ( No.39/1992). The learned Presiding Officer should have considered that the C.E.O., Wakfs, has justifiably directed registration. Law will have to be interpreted to achieve object of the Act. There is distinction between a right and obligation. There was an obligation to 8 register the property as a Wakf in terms of final adjudication in LPA, treating the property as Wakf. The fact situation, according to him, also needs consideration, since 1933 A.D. no burials are taken place in the property, still its character as a Wakf will not be lost. It was a ministerial act after the judgment in the L.P.A. to carry registration under the Bombay Public Trusts Act. The applicants are third parties, they have no personal gains in the property but are interested in it being belonging to the same sect. The Section 36(8) of Wakf Act will not apply as the property is Wakf by user. He stressed, by placing reliance to the judgment in the matter of Sayyad Ali and others Vs. A.P.Wakf Board, Hyderabad ( 1998 (2) SCC 642), once a Wakf, always a Wakf. 6. Mr. Shah, Senior Counsel, contended, in terms of Section 36(8) of the Wakf Act, there operates a bar of limitation for registration and no power vests in the Board to relax the limitation. There is no enabling provision to relax the limitation. He stressed, Section 36(8) is pari materia to Section 25-A of the Wakf Act, 1954. 7. The status of the property to be Wakf is conclusively indicated in F.A.No.469/1977, confirmed in LPA No.39/1992. Its registration 9 under the Bombay Public Trusts Act was a ministerial act. However, its such status will not get a recognition of the registration under the Wakf Act, 1995, in terms of the legal hurdles indicated hereinbefore. The contention of applicant that once a Wakf always a Wakf needs to be considered in the background of the above discussed facts. It is settled, as indicated in the matter of Sayyad Ali and others, a Wakf is a permanent dedication of the property for purposes recognized by Muslim Law as pious, religious or charitable and the property having been found as Wakf, always retains its character as a Wakf. 8. The definition of the "Board" in Section 3(c) indicates, a Board of Wakfs established under sub-section (1) or, as the case may be, under sub-section (2) of Section 13 and shall include a common Wakf Board established under Section 106. "13. Incorporation. (1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the notification. (2) Notwithstanding anything contained in sub-section (1), if the Shia wakfs; in any State constitute 10 in number more than fifteen per cent., of all the wakfs, in the State or if the income of the properties of the Shia wakfs in the State constitutes more than fifteen per cent., of the total income of properties of all the wakfs in the State, the State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Sunni wakfs and for Shia wakfs under such names as may be specified in the notification. (3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued." Section 14 contemplates composition of the Board. 9. The orders referred above in the First Appeal is of 17.10.1989 while of the LPA Court is dt.26th Feb.,1993 in LPA No.39/1992. The establishment of the Board is dt.4th Jan.,2002. The application under Section 36 of the Wakf Act by the applicant is dt.21.2.2008 while the order of the C.E.O., Wakf, is dt.24.4.2008, directing registration. By virtue of effect of Section 36(8), the application should have been made within three months from the date of creation of the Wakf, or within three months from the date of 11 establishment of the Board. 10. Section 36 of the Wakf Act, 1995, relevant for the purposes of the present application, is reproduced as under: "36. Registration. (1) Every wakf, whether created before or after the Commencement of this Act., shall he registered at the office of the Board. (2) Application for registration shall be made by the mutawalli: Provided that such applications may be made by the wakf or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs. ... ... ... (7) On receipt of an application for registration, the Board may, before the registration of the wakf make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the wakf property, the Board shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall hear him if he desires to be heard. (8) In the case of wakfs created before the commencement of this Act, 12 every application for registration shall be made, within three months from such commencement and in the case of wakfs created after such commencement, within three months from the date of the creation of the wakf: Provided that where there, is no board at the time of creation of a wakf such application will be made within three months from the date of establishment of the Board. " Mr. Gangapurwala submits, reading Section 36(1) with Section 36(8), it was an obligation cast on the Board to register the property to be a Wakf. The strict limitation in terms of Section 36(8) would be applicable when any person stakes right to the property. It will not be applicable for a matter where it is an obligation. In order to stress his point, learned Counsel relied to the judgment in the matter of Garware Chemicals Limited V. Board of Industrial and Financial Reconstruction and another ( 2004(2) Mh.L.J. 707). The Division Bench observed in para 11 that Section 15(1) of the Sick Industrial Companies ( Special Provisions) Act ( SICA Act) does not lay down any period of limitation although it creates an obligation upon the Board of Directors to approach the Board for Industrial and Financial Reconstruction within the time stipulated by the Section and failure to discharge the obligation may entail penal consequences as provided by 13 Section 33(1) of the Act. The Division Bench also observed, "however, we may hasten to add that Board is within its rights to reject the reference where the Board finds that the Directors are guilty of supine indifference or there is lack of bona fides on the part of the Directors or where the only purpose of making reference is to take shelter of the protection given by the Act. In such cases the Board would be undoubtedly justified in rejecting the reference on the ground of delay and laches". 11. The above judgment will not be applicable in the present case as there is no provision under the Wakf Act striking penal consequences for non registration of the obligation to register a Wakf. The application for registration is in the shape of original proceedings before C.E.O., hence no room left for extending exemption to the Statute. Section 36(1) and (8) read together speaks of registration of Board by the Mutawalli. Present case is within the bracket of proviso to sub-section (2) of Section 36 which contemplates that such application may be made by the Wakf or any Muslim belonging to the sect to which the Wakf belongs. 12. It is evident, the legislation did not 14 contemplate relaxation and condonation of limitation in making an application for registration by any Muslim belonging to the sect concerned. The law mandates, the rigour of limitation will prevail to be strictly adhered to - no cognizance could be taken in the eye of law if there is bar in terms of Section 36(8) of making the application. Thus, power of relaxation of the period of limitation, is not indicated anywhere. The creation of statute is naturally unknown to common law. 13. Mr. Shah, learned Senior Counsel, referred to M.P.Wakf Board Vs. Subhan Shah ( 2006 (10) SCC 696). Section 25(1) of the Wakf Act, 1954, which is as under, is apparently in pari materia to the Section 36(8) of the Wakf Act, 1995. "25. Registration. (1) Every wakf whether created before or after the commencement of this Act shall be registered at the office of the Wakf Commissioner. (2) Application for registration shall be made by the mutawalli : Provided that such applications may be made by the wakif or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs. ... ... ... 15 (7) On receipt of an application for registration, the Wakf Commissioner may, before the registration of the wakf, make such inquiries as he thinks fit in respect of the genuineness and validity of the application and the correctness of any particulars therein and when the application is made by any person other than the person administering the wakf property, the Wakf Commissioner shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall hear him if he desires to be heard. (8) In the case of wakfs created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of wakfs created after such commencement, within three months from the date of the creation of the wakf." In the matter of M.P.Wakf Board, One Hazrat Sha Walli was a Peer. On his death, a Dargah was established in his memory. Erstwhile Maharaja Holkar Darbar, granted Mafi Inayat Land to the Dargah. Allegedly, the land in question was held to be not forming a part of Wakf in terms of the provisions of the Wakf Act, 1954. One Munna Bai filed an application for getting her name mutated in respect of the property in question. It was 16 dismissed on 4.2.1967. She thereafter filed an application under Section 25 of the 1954 Act for registering the Dargah as a Wakf. A notice was issued to Subhan Shah and others who were the heirs of the said Hazrat Sha Walli. They filed their cause denying and disputing that the property in question was a Wakf property. It is observed in paragraph No.12: " Maintainability of the suit, therefore, is not in question. The property was dedicated to the Dargah, if any, a long time back. An application for registration of the said property as a Wakf property in terms of Section 25 of the 1954 Act, therefore, could have been filed only within the period specified thereunder, viz., nine months from the date of coming into force of the said Act. Registration of Wakfs whether created before or after the commencement of the said Act is governed by Section 25. A copy of the Wakf deed was also required to be enclosed with such an application. Sub-section (7) of Section 25 of the 1954 Act provides for making of an inquiry into the correctness or otherwise of the contents of the said application." Paragraph No.18 is as under: "18. Title to a property has a definite connotation. It is not the same as user. The Tribunal failed to deal with the question as to whether the Board had the requisite 17 jurisdiction to entertain the application filed by Munna Bai being barred by limitation, insofar as period of limitation provided for under sub-section (8) of Section 25 is merely three months, Munna Bai filed an application after 12 years after coming into force of the 1954 Act. " Mr. Shah submits, the law laid down by the Apex Court applies with same force in the present matter. There should not be any controversy to accept this proposition. 14. These details, unmistakably, indicate that the initiation of the proceedings dt. 21.2.2008 in terms of Section 36 of the Wakf Act by the applicant and the order thereon dt. 24.4.2008 by the C.E.O., Wakf, is barred by Section 36(8) of the Wakf Act, 1995, in view of establishment of Board on 4th Jan.,2002. I hold Section 38(8) of the Wakf Act, 1995, stipulates limitation of making application and no relaxation thereto is provided in the Statute. Its rigour needs to be mandatorily adhered to. 15. The development of the properties by the builder/developer, respondent nos. 24 (a) (b) though is apparent, however, it will not 18 change the scenario, as the development and construction, if any, will be subject to outcome of rights of parties, decided in earlier proceedings F.A.469/1977. 16. Another facet of the matter is: while dealing with applications under Section 36 for registration of the Wakf, Section 36(7) obligates the C.E.O. for making such enquiries about the genuineness and validity of the application, correctness of the particulars therein. When the application is made by any person other than the person administering the Wakf property, the Board shall before registering the Wakf, give notice of the application to the person administering the Wakf property and shall hear him if he desires to be heard. 17. Respondents herein are the persons administering the Wakf property being descendants of Raj Mohammad Takiya of Nana Peth, Pune-2. Before causing any inquiry, the C.E.O. Wakf was duty bound to verify the genuineness and validity of the application, which he apparently did not. Most of the columns in the application are left blank. C.E.O. blindly acted on incomplete application. In verification, a incorrect statement on oath is made, showing the applicants to be managing or in charge of property, or, nobody else is looking after the property in 19 question. This affidavit/declaration appearing at page no.193 of the paper book, under signature of applicant Mohd.Ansar Salik is contrary to the fact as he was never a person of any committee appointed to look after the Wakf. The learned C.E.O. Wakf did not bother to call upon the respondent herein to hear them before such registration. 18. The learned C.E.O., Wakf, was duty bound to have taken into consideration to the development of the property legally effected by respondent and application of the Maharashtra Slums Area (Improvement, Clearance and Redevelopment) Act, 1971, as it was under a special scheme the property was developed. 19. There is no illegality in the order of the learned Presiding Officer, Wakf Tribunal as the order is in tune with the available record and law. The maintainability of the application for registration itself being under cloud, it was rightly rejected by the learned Presiding Officer. Civil Revision Application lacks merit. Rejected. Rule discharged. (K.U.CHANDIWAL) JUDGE ... agp/180-09cra