CRA 48/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 48/2010 1 Jamal Shah Takiya Trust, 366, Mahatma Phule Peth, Ganjpeth, Pune 411 002. 2 Altaf s/o Hussain Sundake, Age : 60 years, Occu. Business, R/o 284, Guruwarpeth, Pune. ...Applicants. Versus 1 Muneer s/o Ibrahim Khan, Age : Major, Occu: Business, R/o 63 Ganeshpeth, Pune 411 002. 2 Superintendent of Land records within the precinct of Collectorate, Pune 411 002. 3 Maharashtra State Board of Wakfs through its Chief Executive Officer, Panchakki, Aurangabad. ...Respondents. Mr. G.D. Shaikh with Mr. A.M. Pathan, for applicants. Mr. S.S. Chapalgaonkar h/f Mr. S.P. Chapalgaonkar, for respondents no.1. Mr. S.A.G. Qadri, for respondent No.3. Mr. V.A. Shinde, for respondent No.2 absent. CORAM : A.V. NIRGUDE, J. Date : 5th January, 2011. PER COURT:- 1 Heard. 2 This application is filed for challenging the order dated 19/11/2009 passed by the learned Presiding Officer, Maharashtra WAKF Tribunal, Aurangabad in application No. 06/2009. 3 The facts leading to the application can in short be narrated as under. In 1965 under the provisions of Section 19 of the Bombay CRA 48/2010 2 Public Trust Act, the Assistant Charity Commissioner registered a public trust known as Jamal Shah Takiya (P.T.R. No. B-230, Pune) holding that the land C.T.S. No. 366 of Ganj Peth at Pune, was trust property, and the respondent No.1’s grand father Riazuddin was the Trustee. It was also held that the mode of succession was by inheritance. Riazuddin continued as trustee for quite some time. This position continued even after Riazuddin’s death. His successor, it seems, did not approach the Assistant Charity Commissioner for with change report for mutation of the relevant entries etc.. Some time in 1988, the present applicant No.2 and others made an application to the Assistant Charity Commissioner and requested him to frame the 'scheme' for the Trust. They said that they were persons interested in the public trust. The learned Assistant Charity Commissioner, proceeded to decide their application and held that a scheme was required for better management of the Trust. He further held that the mode of succession of Trustee should be changed. He held that five persons who are interested in the public trust, should be appointed as trustees every five years. The present respondent No.1 and his family members who were claiming that they were the legal representatives of the original trustee Riazuddin, opposed this change, specially the mode of succession of trustee. They went before the District Court but failed. They thereafter in 1991 filed first appeal before this Court and the appeal was admitted. They also obtained an interim order preventing the so called board of trustees comprising of five interested persons in the trust, from day to day management of the trust. The first appeal is still pending and the interim order is still in force. This continued for some time. CRA 48/2010 3 In 2002, the Maharashtra Wakf Board was constituted as per provisions of the Wakf Act, 1995. On 17/03/2007, the so called trustees who were respondents in first appeal, made an application under section 43 of the Wakf Act, 1995 to the Maharashtra Wakf Board and sought registration of a Wakf. The learned members of the Wakf Board allowed the application and registered the public trust also as the Wakf. They mentioned the names of the applicants No.2 and others as the Mutawalis of the Wakf and also mentioned that the property of the trust was the property of the Wakf. It is admitted fact that this order of the Wakf Board was passed behind the back of the respondent No.1 and his family members and their concern and claims to the trust and its property was completely ignored. Obviously, they challenged this order passed by the Wakf board before the Wakf Tribunal. The learned Presiding Officer of the Tribunal thereafter heard their application and passed the impugned order. He set aside the impugned order passed by the Wakf Board. The main reason why he allowed the application was that the respondent No.1 and his family members were not given notice by the Board and that the order passed by the High Court were not brought to the notice of the Board. 4 This order has been challenged in this revision. The question that arose in this revision is whether the impugned order deserves any correction and to what extent. Shri Chapalgaonkar, the learned advocate appearing for the respondent no.1 conceded that his client and his client’s family members cannot have any opposition to the registration of the Wakf but he rightly contended that the Wakf board should not have named the applicant No.2 and others as Mutawalis of the Trust. Shri Dastgir the learned advocate appearing CRA 48/2010 4 for applicant No. 2 conceded that the interim order of the High Court passed in the first appeal should prevail. I think even if the Wakf is registered, the position that prevailed due to interim order passed by the High Court, should prevail. In view of this, following order would suffice the ends of justice and would dispose of this litigation for ever. ORDER a) The order passed by the Wakf Board registering the Wakf and holding that the above mentioned property belongs to the trust, does not require interference and is not disturbed. b) As far as the mode of succession is concerned, the question shall be kept open till the decision in the first appeal. c) The Wakf board shall also take note of the pendency of the first appeal as well as the interim order that was passed and which is in force. d) In view of this, civil application No. 18382/2010 stands allowed. [A.V. NIRGUDE, J.] ts k/ok