1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 372/2007 (Sheikh Maqbul S.K. Abdul Gaffar VERSUS Naginabi wd/o Shaukat Ali & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri S.Deshpande with Shri Md.Ateeque, counsel for the petitioner. Shri Ramesh Darda, counsel for the R-1. Shri F.T. Mirza, counsel for the R-2. CORAM : SMT. VASANTI A. NAIK, J. DATE : OCTOBER 15, 2008. By this petition, the petitioner impugns the judgment passed by the Principal District Judge, Nagpur on 17.10.2006 in Miscellaneous Civil Application (Wakf) No.1/2006, by which the judgment and order passed by the Chief Executive Officer, Maharashtra State Wakf Board, Aurangabad on 26.12.2005 was set aside and the matter was remanded to the Chief Executive Officer, Maharashtra State Wakf Board, Aurangabad, for fresh inquiry. Certain other observations are also made in the operative part of the judgment dated 17.10.2006. The petitioners had filed an application under Section 69 of the Wakf Act, 1995 for framing a scheme for proper management and administration of Shakkar Bawali, Edlabad, a Trust, registered under the 2 provisions of Bombay Public Trust Act and deemed to be registered under Section 43 of the Wakf Act. It is not in dispute that the respondent no.1 Naginabi was managing the trust since the year 1965 till a scheme was framed by the Chief Executive Officer, Maharashtra State Wakf Board by the order dated 26.12.2005. The respondent no.1 was aggrieved by the order passed by the Chief Executive Officer on 26.12.2005 and, therefore, filed an appeal before the Principal District Judge, Nagpur under Section 69(3) of the Act of 1995. It was the case of the respondent no.1 that the respondent no.1 was appointed and recognised as a Manager (Mutawalli) of the Dargah. She had submitted in the appeal under Section 69(3) of the Act of 1995 that she had appeared in the proceedings before the Chief Executive Officer through her Advocate and had also filed a reply in the said proceedings opposing the framing of the scheme suggested by the petitioners. It was the case of the respondent no.1 that the petitioners wanted to take control of the management of the Dargah and to seek the ouster of the respondent no.1 by filing the 3 proceedings before the Wakf Board. According to her, false allegations of mismanagement were made against her and no oral evidence was tendered before the Board to point out the alleged mismanagement. On hearing the parties, the Principal District Judge, Nagpur, by the impugned judgment dated 17.10.2006 held that the order passed by the Chief Executive Officer on 26.12.2005 was not just and proper and it was necessary to grant an opportunity to the respondent no.1 to contest the proceedings before the Chief Executive Officer. The Principal District Judge, Nagpur further held that an Officer in the Office of the authority, Wakf Board, had received the reply filed by the respondent no.1 on 04.03.2005 but, the same was not available on record. The Principal District Judge, Nagpur further held that since the reply was not available on record, it was not considered by the Chief Executive Officer while considering the application filed by the petitioners under Section 69 of the Act of 1995. The Court further held that the Chief Executive Officer mainly relied on the observations made by the authorities under the Bombay Public 4 Trusts Act while passing the impugned order dated 26.12.2005. According to the Principal District Judge, Nagpur, and rightly so, when the order of the Joint Charity Commissioner was set aside by the District Court, the observations made by the Assistant Charity Commissioner or the Joint Charity Commissioner could not have been considered by the Chief Executive Officer while passing the judgment dated 26.12.2005. The Principal District Judge, Nagpur further observed in paragraph 10 of the impugned judgment that it appeared from the documents produced by the respondent no.1 on record that three First Information Reports showing the registration of offences against petitioner Sheikh Maqbul, were in existence. According to the Principal District Judge, Nagpur, the Chief Executive Officer ought to have called the police reports in respect of the petitioners against whom, the offences were registered. The submission made on behalf of the petitioner that the respondent no.1 is also one of the trustees on the Board of Trustees and, therefore, she should not have any grievance about the order passed 5 by the Chief Executive Officer, is liable to be rejected for the reason that the respondent no.1 was solely managing the trust for more than 40 years and the reply submitted by her with the Officer in the Wakf Board was not considered by the Chief Executive Officer before passing the judgment dated 26.12.2005. In the aforesaid background, the District Judge thought that it was necessary to grant an opportunity to the respondent no.1 to contest the proceedings filed by the petitioners, specially because she was aggrieved by the appointment of the petitioners as trustees. At this juncture, it is fairly submitted on behalf of the respondent no.1 by Shri Darda that the respondent no.1 does not have any serious objection for framing of the scheme but, would want to have her say in the mode and manner in which it is framed. It is submitted on behalf of the respondent no.1 that the respondent no.1 would also raise her objections in regard to the appointment of the petitioners as trustees. The respondent no.1 would, therefore, be entitled to raise all objections except an objection to the framing of the scheme. 6 No fault can be found with the judgment passed by the Principal District Judge, Nagpur on 17.10.2006 remanding the matter to the Wakf Board for a fresh inquiry and also in giving the ancillary directions in the operative part of the judgment. Since the matter is an old one, the Wakf Board is hereby directed to decide the application filed by the petitioners under Section 69 of the Act of 1995 as early as possible and positively within a period of four months from the date of the first appearance of all the parties before the Wakf Board. The parties undertake to appear before the Wakf Board on 04.11.2008. Since there was an interim order granted by this Court on 25.01.2007 and the judgment passed by the Principal District Judge, Nagpur was stayed, in the interest of justice the interim order is continued only till the Wakf Board decides the application filed by the petitioners. It is needless to mention that the parties should cooperate with the Wakf Board and see that the matter is disposed of as early as possible. 7 For the aforesaid reasons, the writ petition is disposed of with no order as to costs. JUDGE APTE