cra50.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION NO.50/2011 ANWARBEE NIZAM MUJAWAR AND ORS. ..PETITIONERS. VERSUS SHIVAJI SHANKAR SHELAR AND ANR. ..RESPONDENTS. ... Mr.A.S. Shaikh, Advocate for petitioners. Mr.Y.B. Pathan, Advocate for respondents. ... CORAM : S.S. SHINDE, J. Dated: July 08, 2011 PER COURT: 1. Heard learned Counsel for the parties. 2. Rule, returnable forthwith. By consent of the parties, taken up for hearing. 3. The learned Counsel for the petitioners submits that the Presiding Officer, Maharashtra State Wakf Tribunal, at Aurangabad while deciding the application for condonation of delay, even commented on the merits of the cra50.11 2 matter and also observed that an alternate remedy is available to the petitioner. The learned Counsel further submitted that once the application for condonation of delay is filed before the forum, the said forum has to decide the said application and find out whether sufficient cause has been disclosed in the said application and only after condonation of delay, the matter has to be decided on merits. However, in the instant case, the Presiding Officer not only rejected the application for condonation of delay but, at the same time, commented on merits of the matter. It is further submitted that if the Presiding Officer was of the opinion that there is alternate remedy, in that case the Presiding Officer should have first allowed the application for condonation of delay and thereafter, should have decided the appeal on merits. He submitted that it was not open for the tribunal to comment on merits of the matter while rejecting the application for cra50.11 3 condonation of delay. 4. On the other hand, the learned Counsel for the respondents submits that no sufficient cause was disclosed in the application for condonation of delay and the Presiding Officer was justified even in making comments on merits and further observing that there is alternate remedy available to the petitioner. He invited my attention to the affidavit filed by respondent No.1, which is part of the compilation from page No.27 to 31. Relying on the said affidavit, the learned Counsel, therefore, submits that there is no jurisdictional error committed by the Presiding Officer and, therefore, no interference is called for in the present revision application. 5. I have heard the learned Counsel for the parties and considered their submissions. The operative part of the order of the tribunal cra50.11 4 reads, thus: "ORDER Heard Shri Shaikh Aftab Adv. for applicants. None present for respondents. Perused record. The application for condonation of delay in filing appeal challenging order of registration u/s 36 of Wakf Act, 1995. The ground given is that, the applicants are resident of Satara, and while registering Wakf no notice is served upon them. However, they came to know through other sources. According to them, they are hereditary mutawalli and heirs of Mujawar. The Wakf was already registered as public Trust and is an old wakf. It is admitted that, the names of applicants never appeared in the Schedule-I of Trustees or heirs of Trustees. The Wakf is registered under deeming provision of Section 43 of Wakf Act, 1995. By formal registration the right of parties are not decided. The rights and claims can be decided under Sec.63 of Wakf Act, 1995. When the applicants name nowhere appeared in Schedule-I as persons Managing the wakf notice was not necessary to them. Therefore, lack of any fictitious notice cannot be said to be reasonable or satisfactory ground for condonation of delay. The applicants have other cra50.11 5 efficacious remedy and has no right, object formal registration of Wakf U/s 43 of Wakf Act. Hence I do not find the so called reason which caused delay as sufficient or satisfactory. Hence application stands rejected." 6. Upon perusal of the operative part, it is clear that not only the Presiding Officer commented on the delay but, has even observed that the petitioner has efficacious alternate remedy available. In my opinion, such a course was not permissible to the Presiding Officer. If the Presiding Officer was of the opinion that no sufficient cause has been disclosed in the application for condonation of delay, in that case, he should have rejected the application and there was no question of further making comments on merits of the matter. If at all the Presiding Officer of the tribunal was of the opinion that there is alternate remedy, in that case, the Presiding Officer should have stopped cra50.11 6 saying so and there was no question of further adjudication of the matter. 7. Therefore, in my opinion, such order is not sustainable. Hence, it is quashed and set aside. The Misc. Application No.16 of 2009 in Wakf Appeal is restored to its original file. The Presiding Officer, Maharashtra State Wakf Tribunal, Aurangabad is directed to decide the said application, in accordance with law, within one month from today and depending upon the fate of that application, further decide the appeal. It will be open for the parties even to agitate the ground of efficacious alternate remedy. Parties are directed to appear before the Presiding Officer on 15th July, 2011. All the contentions are kept open. Civil Revision Application is allowed to above extent and stands disposed of. [ S.S. SHINDE ] JUDGE. PLK/*