1 CRA NO.52/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.52 OF 2011 Muslim Panch Managing Dargah Rasool Shah Miya Takya, Garveyard and Nagar Khana, Paithan, Tq. Paithan Dist. Aurangabad. through its President Gulam Samdani s/o Gulam Jeelani age 53 yrs. occ. service r/o Bhoiwada, Paithan Tq.Paithan District Aurangabad. ...PETITIONER (Ori.Plaintiff) VERSUS 1. Shaikh Saleem s/o Sk.Babu Babulal, age 40 yrs. Occ. Business r/o Bhoiwada, Paithan, Dist. Aurangabad. 2. Chief Executive Officer, MSB of Wakfs, Aurangabad. 3. Nagar Parishad Paithan through its Chief Officer, Paithan, Tq. Paithan, Dist. Aurangabad. ...RESPONDENTS (Ori.Defendants) ... Mr. G.D.Shaikh, Adv., for the petitioner. Mr.J.H.Deshmukh, Adv., for respondent no.1. Shri M.B.W.Khan, Adv., for R.2. Shri S.W.Munde, Adv., for respondent no.3. ... CORAM: K.U.CHANDIWAL, J. DATE : 22/11/2011 *** 2 CRA NO.52/2011 ORAL JUDGMENT: 1. Heard Respective Counsel. Rule. With consent of learned Counsel for the parties, Rule is made returnable forthwith. Heard finally. 2. The revision applicant asserted to be Panch and Managing Dargah Rasool Shah Miya Takya at Paithan. In the said capacity, he challenged appointment of respondent no.1 as a temporary Mutawalli appointed by order dated 6th May, 2000, by the Secretary, Wakf Board, based on an application of respondent no.1 dated 27.4.2000. 3. Learned Counsel for the revision applicant says, it was imperative for the Wakf Board to have placed before this Court the application dated 27.4.2000 or the report dated 2.5.2000 of Jalil Ahmed, Clerk of the Marathwada Wakf Board, or of the meeting held by the authorities, for taking the decision to appoint respondent no.1 as a temporary Mutawalli by the order dated 6th May, 2000, by exercise of powers under Section 63 of the Central Wakf Act. The nomination of respondent no.1 as a temporary Mutwalli of the Wakf institution - Dargah Rasool Shah Miya Takiya at Paithan, dist. Aurangabad, is illegal. 3 CRA NO.52/2011 4. It was canvassed by the revision applicant that they are rendering services to the Dargah since time immemorial and mutation entry is also surfacing in the City Survey record and even in the Government gazette. 5. Indeed, these aspects are elaborately considered by the learned Judge/Presiding Officer of Marathwada Wakf Tribunal, Aurangabad, judiciously in his order dated 29.4.2008, passed in Suit No.50/2004. 6. A Regular Civil Suit No.3/2004 was also filed by the revision applicant before the Court of learned Civil Judge, Junior Division at Paithan for identical relief and it came to be dismissed on 23rd June, 2004, since it lacked jurisdiction. 7. Respondent No.1 informed that earlier the care and protection of the Dargah was carried by Shaikh Ahemad till 1984, who was carrying out such services since 40 years prior thereto as Mutawalli he was cleaning, sweeping, lighting and rendering service in the premises of the institution. Learned Judge accepted this position, however, there could not be a cogent and coherent evidence to demonstrate uninterrupted service by said Shaikh Ahmed 40 4 CRA NO.52/2011 years before 1984. 8. Be that as it may, the rights staked by respondent no.1 after Shaikh Ahmed, are entertained by Wakf Board in a rather illusory manner without affording proper opportunities to the persons interested, and in particular, the revision applicant. There was nothing before the Wakf Board to demonstrate acceptability of respondent no.1, while issuing order dated 6th May, 2000, to nominate him as a temporary Mutawalli. Again, a cloud is created in the action of the Wakf Board since after said order dated 6.5.2000 till this date, there is no verification and re-visiting the facts and clarification as to what made it to continue with such order of temporary Mutawalli. The role of the Wakf Board, respondent no.2, in identifying itself to cause of respondent no.1 is not free from blame. No proper inquiry is caused nor interested persons were notified of contemplated application and decision. 9. Civil Revision Application is dismissed to the extent of findings of Presiding Officer. However, if any representation is made to respondent no.2 by either respondent No.1 or the villagers, who are having interest in the well being of the subject institution, the Wakf Board shall entertain the same on its own merits in the 5 CRA NO.52/2011 prescribed period of time; that too, without influenced by past appointment of respondent no. 1. The Wakf Board will, keep well being of institution as the goal than safeguarding individual whims. Rule discharged. No costs. (K.U.CHANDIWAL) JUDGE ... AGP/52-11cra