1 CRA 128,129,130,131 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 128 OF 2010 Vijay Bhoja Shetty, Age Major, Occupation Business, Visava Restaurant, N.C. Kelkar Road, Dadar (W), Mumbai. Applicants V E R S U S (1) Maharashtra Board of Wakf, Through its Chief Executive Officer, Having office at Panchakki, Aurangabad. (2) Pir Babadi Dargah Dadar Trust, Through Trustees – (1) Ahmed Maklai, (2) Ismail Nakuda, (3) Ibrahim Abdul Gaffar Merchant, (4) Irfan Rokadiya, Office of the Trust at 165, Hasan Mansion, Yusuf Meherally Road, Opp. Zakaria Maszid, Mumbai 400 003. (3) Ali Mohammed Jodhtar, Age 50 years, Occupation Business, Tenant Shop No. 10, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (4) Abdul Razaque Sidhtar, Age 41 years, Occupation Business, Tenant Shop No.6, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (5) Izhar Shaikh s/o Sirazulhaque, Age 47 years, Occupation Business, Resident of Lakeview Flat No. 406, Naupada Road, Bandra (W), Mumbai. (6) Farid Abdul Latif Noorani, Age 65 years, Occupation Business, resident of 92-A, Heera Respondents 2 CRA 128,129,130,131 of 2010 Panna Co-op. Hou. Society, 9th Floor, Bhulabahi Desai Road, Mumbai – 026. AND (7) Sana Y. Baugwala, Residing at : Dastagir House, Flat No. 8, 3rd Flr, 4th Cluback Rd, Maratha Mandir Marg, Mumbai Central, Mumbai – 400 008. INTERVENOR (C.A.No.1849/ 2011) WITH CIVIL REVISION APPLICATION NO. 129 OF 2010 Vijay Bhoja Shetty, Age Major, Occupation Business, Visava Restaurant, N.C. Kelkar Road, Dadar (W), Mumbai. Applicants V E R S U S (1) Maharashtra Board of Wakf, Through its Chief Executive Officer, Having office at Panchakki, Aurangabad. (2) Pir Babadi Dargah Dadar Trust, Through Trustees – (1) Ahmed Maklai, (2) Ismail Nakuda, (3) Ibrahim Abdul Gaffar Merchant, (4) Irfan Rokadiya, Office of the Trust at 165, Hasan Mansion, Yusuf Meherally Road, Opp. Zakaria Maszid, Mumbai 400 003. (3) Ali Mohammed Jodhtar, Age 50 years, Occupation Business, Tenant Shop No. 10, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. Respondents 3 CRA 128,129,130,131 of 2010 (4) Abdul Razaque Sidhtar, Age 41 years, Occupation Business, Tenant Shop No.6, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (5) Izhar Shaikh s/o Sirazulhaque, Age 47 years, Occupation Business, Resident of Lakeview Flat No. 406, Naupada Road, Bandra (W), Mumbai. (6) Farid Abdul Latif Noorani, Age 65 years, Occupation Business, resident of 92-A, Heera Panna Co-op. Hou. Society, 9th Floor, Bhulabahi Desai Road, Mumbai – 026. AND (7) Sana Y. Baugwala, Residing at : Dastagir House, Flat No. 8, 3rd Flr, 4th Cluback Rd, Maratha Mandir Marg, Mumbai Central, Mumbai – 400 008. INTERVENOR (C.A.No.1851/ 2011) In CRA No. 128 of 2010 & CRA No. 129 of 2010 Mr. A.S. Bajaj, Advocate for the applicant Mr. Shaikh Javed R. Advocate for rerspondent No.1 Mr.P.M. Shah, Senior Counsel, instructed by Mr. Subodh P. Shah, Advocate for the respondent No.2 Mr. M.I. Hawa, Advocate with Mr. Syd Kalimoddin, Advocate for respondents No. 3 to 6 4 CRA 128,129,130,131 of 2010 WITH CIVIL REVISION APPLICATION NO. 130 OF 2010 (1) Ahmed Maklai, Male, Adult, Indian Inhabitant, Residing at 23, Yusuf Manzil, 4th Floor, 401, Agreepada, Dr. Nair Road, Mumbai – 400 011. (2) Ismail A. Nakhuda, Male, Adult, Indian Inhabitant, Residing at 165, 3rd Floor, Kambekar Street, Masjid, Mumbai – 3. (3) Ibrahim Abdul Gaffar Merchant, Male, Adult, Indian Inhabitant, Residing at 24/B, Hajiani Hoorbai Manzir, Near Mahim Dargah, Mahim, Mumbai – 16. (4) Irfan Rokadiya, Male, Adult, Indian Inhabitant, Occupation Business, 3, Hira Bhilding, Nawaz Plastic Centre, Lohar Chawl, Mumbai – 400 002. Applicants V E R S U S (1) Fareed Abdul Latif Noorani, Male, Adult, Indian Inhabitant, Residing at 92-A, Heera Panna Co-op, Hsg. Society, 9th Floor, Bholabhai Desai Road, Mumbai – 26. (2) Izhar Shaikh s/o Sirajulhaque, Age 47 years, Occupation Business, Residing at Lake view Flat No. 406, Naupada Road, Bandra (W), Mumbai. (3) Abdul Razaque Sidhtar, Age 41 years, Occupation Business, Tenant Shop No.6, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. Respondents 5 CRA 128,129,130,131 of 2010 (4) Ali Mohammed Jodhtar, Age 50 years, Occupation Business, Tenant Shop No. 10, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (5) Vijay Shetty, of Mumbai, Male, Adult, Indian Inhabitant, Tenant of Visawa Restaurant, situated at N.C. Kelkar Road, Dadar (W), Mumbai 400 028. (6) The Maharashtra State Board of Wakf, Through its Chief Executive Officer, Panchakki, Aurangabad. AND (7) Sana Y. Baugwala, Residing at : Dastagir House, Flat No. 8, 3rd Flr, 4th Cluback Rd, Maratha Mandir Marg, Mumbai Central, Mumbai – 400 008. INTERVENOR (C.A.No.1852/ 2011) WITH CIVIL REVISION APPLICATION NO. 131 OF 2010 (1) Ahmed Maklai, Male, Adult, Indian Inhabitant, Residing at 23, Yusuf Manzil, 4th Floor, 401, Agreepada, Dr. Nair Road, Mumbai – 400 011. (2) Ismail A. Nakhuda, Male, Adult, Indian Inhabitant, Residing at 165, 3rd Floor, Kambekar Street, Masjid, Mumbai – 3. (3) Ibrahim Abdul Gaffar Merchant, Male, Adult, Indian Inhabitant, Residing at 24/B, Hajiani Hoorbai Manzir, Near Mahim Dargah, Mahim, Mumbai – 16. Applicants 6 CRA 128,129,130,131 of 2010 (4) Mr. Irfan Rokadiya, Male, Adult, Indian Inhabitant, Occupation Business, 3, Hira Bhilding, Nawaz Plastic Centre, Lohar Chawl, Mumbai – 400 002. V E R S U S (1) Fareed Abdul Latif Noorani, Male, Adult, Indian Inhabitant, Residing at 92-A, Heera Panna Co-op, Hsg. Society, 9th Floor, Bholabhai Desai Road, Mumbai – 26. (2) Izhar Shaikh s/o Sirajulhaque, Age 47 years, Occupation Business, Residing at Lake view Flat No. 406, Naupada Road, Bandra (W), Mumbai (3) Abdul Razaque Sidhtar, Age 41 years, Occupation Business, Tenant Shop No.6, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (4) Ali Mohammed Jodhtar, Age 50 years, Occupation Business, Tenant Shop No. 10, Dargah Chawl, N.C. Kelkar Road, Dadar (W), Mumbai. (5) Vijay Shetty, of Mumbai, Male, Adult, Indian Inhabitant, Tenant of Visawa Restaurant, situated at N.C. Kelkar Road, Dadar (W), Mumbai 400 028. (6) The Maharashtra State Board of Wakf, Through its Chief Executive Officer, Panchakki, Aurangabad. Respondents 7 CRA 128,129,130,131 of 2010 AND (7) Sana Y. Baugwala, Residing at : Dastagir House, Flat No. 8, 3rd Flr, 4th Cluback Rd, Maratha Mandir Marg, Mumbai Central, Mumbai – 400 008. INTERVENOR (C.A.No.1854/ 2011) In CRA No. 130 of 2010 & CRA No. 131 of 2010 Mr.P.M. Shah, Senior Counsel, instructed by Mr. Subodh P. Shah, Advocate for the applicants Mr. M.I. Hawa, Advocate with Mr. Syd Kalimuddin, Advocate for respondent No.1 to 4 Mr. A.S. Bajaj, Advocate for respondent No.5 Mr. Shaikh Javed R. Advocate for t he respondent No. 6 In Civil Applications No. 1849, 1851, 1852, 1854 of 2011 Smt. Sana Y. Baugwala, Advocate for the applicant – in person CORAM : A.V. NIRGUDE, J. Reserved On : 11th February, 2011 Pronounced On : 23rd February, 2011 ORAL JUDGMENT : 1. Civil Applications No. 1849 of 2011, 1851 of 2011, 1852 of 2011 and 1854 of 2011, filed by Intervenor for intervention, are allowed. 2. All these four revisions can be decided by this common Judgment. 3. These revisions are filed against the Judgment and order passed by the learned Presiding Officer, Maharashtra Wakf Tribunal, 8 CRA 128,129,130,131 of 2010 Aurangabad, dated 16th July, 2010, on Application Nos. 22 of 2010 and 23 of 2010. 4. An old Sunni Wakf, Peer Bagdadi Dargah and Mosque are situated in thickly populated Dadar (West) area, Mumbai. The Wakf owns a plot of land, admeasuring over 3000 square meter. On the plot, there are 39 shops on the periphery, and in the middle of the plot, there exists a Mosque. Applicant Vijay Shetty is one of the tenants of the Wakf occupying two shops. He runs a restaurant in the shops. 5. It is common ground that in 1996, the Mosque was completely rebuilt by the Wakf with the help of donations coming from devotees. But, the surrounding shops were left untouched. The 39 shops are let out to various tenants. The rent by todays standard is paltry sum and certainly not sufficient to maintain the Wakf property as well as to propagate the objects of the Wakf. In the west corner of the circumference of the property of the Wakf, there exists a cluster of 8 shops. They are shop Nos. 1 to 7 and 14. Shops No. 1 and 2 accommodated the applicant’s restaurant. To the north of these shops, lies shop No. 14, and to the south of these shops, Shops No. 2 to 7 are situated. Earlier to 1969, these shops were constructed in brick masonry with manglor tile roofs. In 1969, in communal riots, the shops were set on fire. They were destroyed. But, soon thereafter, Shops No. 1 to 7 and 14 were re-constructed in brick masonry with RCC roof. The construction was so made that the applicant alone could have access to the terrace of these shops. The applicant or his predecessor thereafter erected a structure of terrace of shops No. 1 and 2 for accommodating the workers of the restaurant. The applicant or his predecessor started using some area on the rear side of the shops for 9 CRA 128,129,130,131 of 2010 the purpose of storage and kitchen. The shops No. 1 and 2 also have a mezzanine floor which is also being used as serving area of the restaurant. In this background, one must know as to how events occurred, which gave rise to this litigation. 6. In 2003-2004 or thereabout, the Wakf had financial difficulties. The Mutawalis of the Wakf, during that period, had grievance against the applicant, that he had encroached on the eastern portion of open space belonging to the Wakf to his shops for accommodating his kitchen and storage etc. But, they realized that evicting the applicant from such area would take long time and the litigation would also entail expenses. On the other hand, the applicant approached the Mutawalis with a request that he could be permitted to rebuild his shops and enlarge them vertically. Having regard to the circumstances that prevailed in 2004, the Mutawalis and the applicant arrived at an agreement. They executed an agreement, which is known as ‘development agreement’. This was executed on 3rd May, 2004 on a stamp paper. The Mutawalis considered the suggestion made by the applicant and agreed to allow the applicant to re-construct his shops in such a fashion that he would have additional area constructed on terrace of shops No. 1 to 7 and 14. They further agreed that in the construction process, the F.S.I. available on the Wakf property to the extent of 2326 square feet would be utilized. The Mutawalis further agreed that the applicant would erect the construction at his cost and would occupy the same as tenant. On the other hand, the applicant agreed to pay the Wakf a lump sum of Rs.35 lacs and increased the rent per month. It was also agreed between the parties that the Mutawalis would not be entitled to terminate the tenancy rights of the 10 CRA 128,129,130,131 of 2010 applicant in respect of the entire tenanted premises except on the ground of default in paying the rent as per the provisions of the Maharashtra Rent Control Act, 1999. It was further agreed between the parties that the applicant as a tenant would be entitled to sub-let or under-let the area in his occupation and allow other persons to conduct their business on grant of licence etc. Soon after this agreement, the applicant and the Mutawalis entered into second agreement on 22nd April, 2005. This time, the applicant was given permission to use additional F.S.I. of 1737 square feet for construction of an additional floor (2nd floor), and in turn, the applicant agreed to pay additional sum of Rs.25,75,000/- to the Wakf. With the result of the additional agreement, the applicant was authorized to construct a building in place of his old shops utilizing F.S.I. of 4100 square feet. Soon the applicant obtained municipal permission for the the development and in May-June of 2006, the applicant started the construction work. 7. On 24th June, 2006, a devotee of Dargah made a complaint to the Wakf that the applicant had made encroachment on the Wakf property on the eastern side. The complainant approached the Chief Executive Officer of the Wakf Board. On 19th July, 2006, the said officer directed the applicant to stop the work. On 16th September, 2007, one of the Mutawalis Shri Noorani sent a letter to the other Mutawali that for certain reasons mentioned in the letter he had withdrawn his consent for the agreements. However, on 13th October, 2008, the Chief Executive Officer of the Board refused to intervene and rejected the complaint. The remaining Mutawalis of the Wakf continued their support to the agreements and actively supported the applicant. On 31st December, 2008, the complainant challenged the order of the Chief 11 CRA 128,129,130,131 of 2010 Executive Officer by a filing Writ Petition in this Court. Upon hearing both the sides, the Division Bench of this Court on 25th November, 2009 directed the parties to approach the Board and directed the Board to examine the proposal etc. On 1st March, 2010, the Board passed a resolution and thereby held that having regard to the facts and circumstances of the case, especially the fact that the Municipal Corporation has also accorded sanction for re-development of the property, the proposed transaction between the applicant and Wakf was legal and is also beneficial to the Wakf. It also took note of the fact that during pendency of the hearing, the applicant agreed to pay Rs. 39,00,000/- as additional consideration, and further agreed to pay rent @ Rs.20,000/- per month. It resolved unanimously that the transaction was legal and valid. Against this resolution, two applications were moved under Section 83 of the Wakf Act, 1995, (one filed by one of the Mutawalis Shri Noorani and the other filed by three persons claiming that they were interested in the Wakf) before the Maharashtra Wakf Tribunal, Aurangabad. The learned Presiding Officer of the Tribunal heard the parties, took documents on record including affidavits of the parties and passed the impugned Judgment and order. The learned Presiding Officer allowed both these applications and held that the development agreements were void and illegal and ordered to their cancellation. He even set aside the resolution of the Board dated 1st March, 2010. He lastly directed the parties to restore the status quo ante that prevailed before the agreement. 8. The learned Presiding Officer of the Tribunal quoted following clauses of the agreement in his Judgment : 12 CRA 128,129,130,131 of 2010 Clause 7 : It is hereby agreed that on completion of the proposed construction work on the said terrace/first floor/Ground floor, the Tenant shall continue to be the monthly tenant of the Landlords in respect of the existing as well as the newly constructed premises including the external and internal staircase, subject to condition that the tenancy of the newly constructed premises of the first floor shall be separate and distinct from the tenancy of Shop Nos. 1 and 2 of the ground floor. Clause No. 8 : As agreed between the parties, the rent of the newly constructed premises is hereby fixed at Rs. 1,500/- (Rupees one thousand five hundred only) per month and the maintenance charge are fixed at Rs.1,800/- (Rupees one thousand eight hundred only) per month. The rent has been fixed on the basis of the rateable value that may be levied by the Municipal corporation of Greater Mumbai, the rent so fixed is binding on both the parties. Notwithstanding anything contained in any law, the Landlord shall not increase the rent save and except to the extent of increase in rate, cess, charges, taxes, land assessment, ground rent or any other levy or any fresh levy on land or on the building, the Landlord have agreed not to enhance the rent in view of the fact that the tenant has agreed to pay to the Landlord the said amount of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) for permitting him to construct the said proposed new construction and that too at tenant’s own cost. Clause No. 10 : In view of the fact that the tenant has agreed to pay the said amount of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) to the Landlords and also agreed to carry out the construction work at his own cost as aforesaid, it is hereby agreed by and between the parties herein that the 13 CRA 128,129,130,131 of 2010 Landlords shall not be entitled to terminate the tenancy right of the tenant nor shall they be entitled to obtain vacant possession from the tenant of the premises including the terrace at the first floor level and the staircases (both internal and external) or on the newly constructed area under any of the grounds mentioned in the Maharashtra Rent Control Act 1999 or the Transfer of Property Act 1882 save and except on the grounds of arrears of rent as provided in the Rent Act. Clause No. 11 : The Landlords hereby irrevocably grant their consent to the tenant for alternation or any other works including that of a permanent nature in or to the ground floor premises or the first floor premises or the terraces, including applying for and obtaining additional electric meters/capacity and water connection, bringing in/installing/creating therein or any part thereof (including on the terrace of the ground floor or the first floor, and external walls) all necessary furniture, fixtures, fittings, cooling towers, air-conditioning machinery, water tanks, kitchen equipment and such equipment and paraphernalia as thought fit by the tenant for effectively carrying on his business/businesses presently run or as changed from time to time. The tenant is also entitled to erect/install in the premises or any part thereof (including on the terrace of the first floor which is for the exclusive use of the tenant or external walls), signs and signboards including but not limited at neon signs, back-lit signs etc., of such size and type as required by the tenant or such other articles or things with liberty to the tenant to change remove the same without any objection from the Landlords. The neon signs and back lit signs shall not require any further permission from the Landlords. The Landlords also hereby agree to sign and 14 CRA 128,129,130,131 of 2010 execute all such writings as may be required by the tenant for obtaining the permission, if any, from the Municipal corporation of greater Mumbai and/or any other concerned authorities as and when requested to do by the Tenant or as maybe required by the concerned authorities. Clause No. 12 : The Tenant is entitled to change his businesses carried on in/from the premises on the ground floor and/or first floor or part thereof, or start more than one business in the premises and erect partition walls. However, the tenant shall not run a bar or disco parlour or carry out any immoral business or act in view of the sanctity the adjoining mosque, the Landlords further hereby agree that the tenant is entitled to sub-let, or under-let the premises or any part thereof, or allow any persons to conduct his business/es with or without the premises, grant a license of his business/premises, open/change a franchise segregate the premises/erect partition walls, as the Tenant at his sole discretion deems fit and without any objection or hindrance from the Landlords, the Landlords hereby agree and record that by this Agreement they have granted their irrevocable consent to the tenant to change his business, sub-let, under- let, open a franchise, grant a licence, give on conducting basis thereof as the tenant may deem fit, the Landlords hereby also agree and undertake to transfer the rent receipts of the premises or such part thereof in the name of any member of his family as requested by the Tenant without any objection or delay and without any payment/compensation in respect thereof. Clause No. 13 : At the request of the Tenant, the Landlords hereby permit the Tenant at his costs to construct an extra staircase from within the tenanted premises and 15 CRA 128,129,130,131 of 2010 make necessary changes/alterations/additions to the structure for the said purpose, the Landlords also hereby grant permission to the Tenant to sink a bore well within the tenanted premises of the tenant at the costs and expenses of the tenant alone, at such place as deemed necessary by the tenant and to use the water therefrom. and held that (i)The Mutawalis had created new tenancy in respect of the additional floor area that would be constructed above their existing shops. (ii)The Mutawalis could not have given up right to increase rent and to recover possession of the tenanted premises on any other ground except on the ground of default in payment of rent. Such giving up of the right, according to the learned Presiding Officer, was illegal. (iii)The learned Presiding Officer also held that the new tenancy agreement had created a permanent lease giving permission to tenant to carry on permanent alteration in the premises, create several rooms and cabins therein, change any business, induct any other person to run business etc are illegal terms foisted upon the Wakf. (iv)He held that the name given to the agreement as “monthly tenancy” is merely a camouflage. In fact it is a permanent lease which is illegal. (v)The learned Presiding Officer then held that the agreement of tenancy defeated the provisions of the Wakf Act. (vi) The learned Presiding Officer then took notice of the fact that for obtaining municipal permission, the area of Wakf abutting the mosque is shown to be the parking area. He held that providing parking inside the mosque area would not be permissible, and thus would create a serious impediment in the Wakf’s enjoyment of the property. (vii)He then held that since the agreements are now registered ones, there can be no change in the terms and conditions unless all the parties to it execute another registered agreement for correction in the original deed. 16 CRA 128,129,130,131 of 2010 (viii)The learned Presiding Officer also held that the applicant had played fraud on the Wakf and even on the Wakf Board. He held further that the agreements of lease are violative of provisions of Section 56 of the Wakf Act. (ix) He lastly held that the resolution of the Wakf Board since it did not examine the nature of the transaction from the view point of Section 56 of the Act, the same deserves to be set aside. 9. It is these findings of the learned Presiding Officer that are challenged in these revisions. The above quoted terms, mentioned in the agreements, certainly creates an impression that the tenant is given permanent lease of the area which is rented out to him. The question is, whether such terms in agreement for lease would be valid in the context of Section 56 of the Wakf Act. Section 56 reads as under : 56. Restriction on power to grant lease of Wakf property. (1) A lease or sub-lease for any period exceeding three years of any immovable property which is Wakf property, shall notwithstanding anything contained in the deed or instrument of Wakf or in any other law for the time being in force, be void and of no effect. (2) A lease or sub-lease for a period exceeding one year and not exceeding three years of immovable property which is Wakf property shall, notwithstanding anything contained in the deed or instrument of Wakf or in any other law for the time being in force, be void and of no effect unless it is made with the previous sanction of the Board. (3) The Board shall, in granting sanction for lease of sub-lease or renewal thereof under this section review the terms and conditions on which the lease or sub-lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct. Since the Wakf is apparently giving up its