1 WP No.7171/07 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7171 of 2007 Hazrat Baba Tajuddin Trust through Secretary and 5 others ... Petitioners versus State of Maharashtra, Dept. of Social Welfare and Anr. ... Respondents ... Mr.P.M.Pradhan with Mr.A.S.Jaiswal for the petitioner. Mr.C.R.Sonawane, AGP for respondent no.1. Mr.R.M.Momin for respondent no.2. CORAM : D.K. DESHMUKH AND N.D.DESHPANDE, JJ DATED : 27th September 2010 P.C. 1. By this petition, petitioner who are trustees of a Registered Public Trust challenge the order dated 9th January 2004 passed by Additional Collector and Chief Executive Officer, Maharashtra State Board of Aurangabad u/s.43 of the Wakf Act. 2. In Nagpur, there is a registered public trust by name Hazrat Baba Tajuddin Trust. It was initially registered under the Co-operative 2 WP No.7171/07 Societies Act under the provisions of Co-operative Societies Act on 23rd August 1935. After re-organization of the States in the year 1956, it came to be registered as a Public Trust under the provisions of Bombay Public Trust Act. The Registration Number is F-280(N). After its registration there has been a scheme framed for the administration of this Trust under the provisions of Bombay Public Trust Act. The Additional Collector and CEO of the respondent no.2 Board on 9th January 2004 made an order u/s.43 declaring that the said trust is a Wakf within the meaning of the Wakf Act 1995. It is that order which is challenged in the petition. We have heard learned counsel for both the sides. 3. Perusal of the scheme of the Act shows that section 3(r) defines the term “Wakf” and then section 4 provides that the State Government may appoint a Survey Commissioner of Wakf and Additional and Assistant Survey Commissioner of Wakf for the purpose of making survey of Wakf existing in the State of Maharashtra on the date of commencement of Wakf Act 1995. The date of commencement of the Wakf Act is 1st January 1996. The Survey Commissioner after making such enquiry as may be necessary is to submit a report to the State Government as to the number of Wakfs in the State of Maharashtra and other details. If any dispute arise during the course of such surveys, it is to be decided by the Survey Commissioner then u/s.5 of the Wakf Act, the State Government forwards the list to the Wakf Board constituted under the Act. It is thereafter that the Board examines the list and publishes in the official gazette a list of wakfs which are in existence on the date of the commencement of the Act. Thus, whether on the date of commencement of the Act i.e. 1st January 1996 whether Wakf existed or 3 WP No.7171/07 not is to be decided by the Board on the basis of the survey report submitted by the Survey Commissioner to the State Government. All that section 43 provides is that when a Wakf which is found to exist on the date of the commencement of the Act is already registered under any law for the time being in force it need not be registered under the Wakf Act. Section 43 does not give power to anybody to declare whether a particular trust or society is a Wakf or not. Obviously, therefore u/s.43 the impugned order could not have been made. That order could have been made by the Board only under sub-section (2) of section 5 but for making such order, under sub-section (2) of section 5, there has to be a survey report submitted to the Board by the State Government of the survey conducted by the Survey Commissioner. In the present case, it is an admitted position that no such thing has happened. Obviously, therefore, the order made by the Board which is impugned in the petition is not an order made in accordance with law and therefore, it will have to be set aside. 4. In the result therefore, the order dated 9th January 2004 is set aside. However, this order will not prevent the State Government and the Board taking appropriate action in accordance with law. 5. Rule made absolute accordingly with no order as to costs. (D.K.DESHMUKH, J) (N.D.DESHPANDE,J)