1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.122 OF 2004. 1) Farrukh Mehmood s/o Late Haji Mehmood Khan and Another. - PETITIONERS VERSUS 1) Maharashtra State Wakf Board, Through its Chief Executive Officer, and Ors. - RESPONDENTS ***** WITH CIVIL REVISION APPLICATION NO.149 OF 2004. 1) Mujataba Mehmood s/o Late Haji Mehmood Khan and Ors. - PETITIONERS VERSUS 1) Maharashtra State Wakf Board, Through its Chief Executive Officer, and Ors. - RESPONDENTS ***** Mr.AD Kasliwal,Advocate for Petitioner; Mr.JH Deshmukh, Adv. h/for Mr. SM Godsay, Adv. for Respondent No.1; Mr.AS Bajaj, Adv. for Resp.Nos.2, 3 and 4. ----- CORAM : K.U.CHANDIWAL,J. DATE : 14th DECEMBER,2010. 2 PER COURT: 1) The Civil Revision Applications were admitted by order dated 30.09.2004. A short question crept in is, whether the learned Presiding Officer of the Wakf Tribunal, could dispose of the proceedings for want of a notice under Section 89 of the Wakf Act, 1995, in a challenge to action under Section 54 of the Wakf Act.. 2) The revision applicant sought a declaration that order dated 4.12.2003 recorded of the learned Chief Executive Officer of the Respondent No.1-Wakf Board in terms of Section 54 of the Wakf Act, was illegal, null and void. Perpetual injunction was also sought, restraining the CEO from taking possession of property described in the plaint. 3) Section 89 of the Wakf Act concur as under, - “89. Notice of suits by parties against Board, -No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence 3 of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.” 4) The controversy needs to be seen in the context of the nature and scope, envisaged under Section 54 of the Wakf Act, which commensurate with the title, removal of encroachment from wakf property. The Section ordain and illustrate, if the Chief Executive Officer considers that there has been an encroachment on any land, which is a wakf property and registered as such, he shall cause a notice to be served upon such encroacher calling upon him to show cause before a date to be specified in such notice, and then after hearing, requiring him to remove the encroachment. It provides that there should be a full-fledge inquiry and subjective satisfaction of the Chief Executive officer that the property in question is a wakf property and that there has been encroachment on wakf property. Section 54(4) of the Act conceive,- “ 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.” 4 5) Reading Section 54 of the Wakf Act and putting the prayers or the cause raised in the petition in juxtaposition, it is evident, it was challenged by declaration to the action of the Chief Executive officer in terms of Section 54 of the Act, branding it as illegal, null and void. 6) Insistence by the learned Presiding Officer of the Wakf Tribunal for issuance of a notice should not have been coined, as the rules for preferring an appeal against the order in terms of Rule 50(3) provide a time frame of sixty days. If one has to adhere to the time schedule of sixty days from the order, naturally, he would not be in a position to serve a notice giving sixty days time in terms of Section 89 of the Wakf Act. It may be that Rule 50 (3) would not be relevant in terms of section 89 of the Wakf Act. However, at this stage of the matter, it cannot be said that the overlapping effect of Rules to Section 89 should be condoned. When the statute provides a specific period to challenge the CEO’s order, insistence for issuance of notice under Section 89 was uncalled for. CEO did not call upon the applicant for removal of encroachment of wakf property, but it was to the challenge of the order recorded by the Chief Executive Officer exercising powers in terms of Section 54 of the Wakf Act, 1995. Common sense 5 should not be kept in cold storage as the language of Section 54 and 89 depicts different situation and the petition should not be crucified for want of notice. 7) The survey illustrate that the learned Presiding officer could not have rejected the petition taking recourse to order VII Rule 11 of CPC and should not have kept the issue of want of notice alive. 8) The insistence for notice against Chief Executive officer's order would afflict the justice system at initial stage. The order of the learned Presiding Officer of the Maharashtra Wakf Tribunal, Aurangabad dated 31.12.2003, therefore, calls for interference. The order is set aside. The wakf suit No. 42 and 43 of 2003 are restored to original position. Both the parties shall appear before the Presiding Officer, Wakf Tribunal on 13th January, 2011. 9) Civil Revision Applications are allowed to the extent indicated above. No costs. sd/- (K.U.CHANDIWAL) JUDGE bdv/