1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.33 OF 2010 WITH CIVIL REVISION APPLICATION NO.25 of 2010 Date of decision:9/3/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/25-33-10cra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.33 of 2010 1. Bhawaka s/o Bhiwa Wale, Age 68 years, Occ. Agriculture, 2. Balkrishna s/o Bhiwa Wale, Age 71 years, Occ. Agriculture. 3. Sakharam s/o Bhiwa Wale, Age 83 years, Occ. Agriculture, All r/o Rajapur, Tal.Sangamner, Dist.Ahmednagar. ...PETITIONERS VERSUS 1. Janab Feroj Nasir Khan, Age 30 years, Occ. Service, President Rajapur Masjid Trust, Rajapur, Tal.Sangamner, Dist. Ahmednagar. 2. Maharashtra State Board of Wakfs, Through its Chief Executive Officer, Panchakki, Aurangabad. ...RESPONDENTS ... Mr. V.D.Sapkal, Adv., for petitioner. Mr. Y.B.Pathan, Adv., for respondent nos. 1 and 2. ... 3 WITH CIVIL REVISION APPLICATION NO.25 of 2010 1. Liyakat Kasam Mulla, Aged 48 Yrs., Occu.Business, 2. Mohd.Ali Hussain Mulla, Aged 67 Yrs., Occu.Agri. 3. Ayyaz Yakub Mulla, Aged 62 Yrs., Occu.Pensioner. 4. Aziz Hadi Inamdar, Age 30 yrs., Occu.Business, 5. Rahimatulla Rashid Mulla, Aged 59 yrs., Occu.Pensioner. 6. Inayatulla Rahid Mulla, Aged 60 yrs., Occu.Business, All r/o village Rahimatpur, Tq.Koregaon, Dist. Satara. ...APPLICANTS (ORIG.APPLICANTS) VERSUS 1. The Chief Executive Officer, The Maharashtra State Wakf Board, Aurangabad. 2. Chaitan Shah Sayyad Hussaini Wakf Through its Mutawalli Turabshah @ Dadashah Lalshah Fakir, Aged 45 yrs., Occu.Agri., r/o Rehmatpur, Tq.Koregaon, Dist. Satara. ...RESPONDENTS (ORIG.RESPONDENTS) Mr. V.M.Kagne, Adv., for the petitioner. 4 Mr. Uday D.Dalvi, Adv., h/f Mr. M.G.Mustafa, Adv., for respondent nos. 1 and 2. ... CORAM: K.U. CHANDIWAL, J. DATE :9-3-2010 *** ORAL JUDGMENT : 1. Heard V.M.Kagne and Mr. V.D.Sapkal, Counsel for respective petitioners, Mr.Y.B.Pathan, Counsel for respondents in C.R.A. No.33/2010 and Mr.Uday D.Dalvi, Counsel, for Shri M.G.Mustafa, Counsel, for respondent nos. 1 and 2 in C.R.A.No.25/2010. 2. Rule. With the consent of Counsel for respective parties, heard forthwith. 3. Applications were made by the applicants in both the Civil Revision Applications in terms of Section 83(2) of the Wakf Act, 1995, before the learned Presiding Officer. Applications for grant of injunction, below Exh.5, were also moved. Learned Presiding Officer, while negating the contentions of the applicants herein, on Exh. 5, observed that very petition in terms of Section 83(2) of the Act is not maintainable as, according to the learned Presiding Officer, it should have been a suit as mandated under Section 54(4) of the Wakf Act, 1995. 5 4. The approach of the learned Presiding Officer, in interpreting Section 54(4), which ordains as under, is certainly at a wrong footing. Section 54(3) and (4) read as under: "54. Removal of encroachment from wakf property. "(1) .... ... (2) ....... (3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf. (4) Nothing contained in sub- section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property: Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person 6 authorised by him in this behalf." The requirement of Section 54 and, particularly, clause (3) thereof, read with Section 83, clause (2) of the Wakf Act, 1995, any person interested in a Wakf or any other person aggrieved by the order made under the Act or Rules made thereunder is competent to make an application within time frame to the Tribunal for determination of any dispute, question or other matter relating to the Wakf. The law does not mandate, that necessarily a suit is to be filed, as envisaged in terms of Section 54 of the Wakf Act, 1995. 5. Counsel for the petitioner relied on a judgment in the matter of Aliyathammada Beethathebiyyapura Pookoya Haji Vs. Pattakal Cheriyakoya and others ( AIR 1999 Kerala 289) where the learned Single Judge has referred to various provisions contained in the Act, including Section 83, which deals with the constitution of the Tribunal and has observed that the jurisdiction of the Tribunal is not restricted in terms of Section 54(4) and the application in terms of Section 83(2) of the Act, by any person or Mutawalli is maintainable. Considering the above factual position, the present Civil Revision Applications are allowed to the extent only as above. It is for 7 the learned Presiding Officer to independently decide Exh.5 moved by the respective applicants in their applications. No costs. The order of the Chief Executive Officer, which was subject in the applications and, stayed by this Court, to remain in force till the learned Presiding Officer decides Exh.5 in both the applications, pending before him. The parties shall appear before the learned Presiding Officer on the dates specified by him. Rule made absolute in above terms. [K.U. CHANDIWAL, J.] agp/25-33-10cra 8