W.P. 5336/2007 1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5336/2007 MOHASIN AHMED S/O BASHIR AHMED, Age : 22 years, Occu. Business and President of Bashir Masjid Committee, R/o Bashir Colony, Roshan Gate, Aurangabad. ..Petitioner. Versus MAHARASHTRA STATE BOARD OF WAKFS and others. ....Respondents. Mr. A.P. Bhandari, for the petitioner. Mr. Afzal Hussain h/f Mr. Amol Gandhi, for respondent No.3. Mr. M.A Khan, for respondent Nos. 1, 9, 10 & 12. CORAM : A.V. NIRGUDE, J. DATED :25th April, 2011. PER COURT : 1. This writ petition filed under Article 227 of the Constitution of India, challenges the order dated 5th August, 2006 passed by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad on Exh. 41 in appeal No. 8/2005. The petitioner was appellant before the lower Court. The appeal was pending for quite some time. On 5th August, 2006 the petitioner / appellant made the present application seeking liberty to withdraw the appeal with a liberty to file a fresh one on the same cause of action. The learned presiding officer rejected the application partially whereby he refused granting of liberty to file fresh appeal. But he nonetheless dismissed the appeal. W.P. 5336/2007 2 2 The facts leading to filing of the appeal in short can be stated as under. The petitioner / appellant said that he is one of the founder of the mosque which is situated in locality known as Nagsen colony at Aurangabad. He said, since 1998 he and his neighbours- certain residents of Nagsen colony- brick by brick constructed the mosque. He said, since beginning he, as Chairman of the managing committee of the Mosque, maintained the mosque. He said, suddenly the Wakf board took cognizance of its existence and initiated proceeding under section 83 of the Wakf Act and ultimately the learned Chief Executive Officer of the Wakf board passed an order directing the formation of new committee for managing the Wakf. This order denied the petitioner’s right to manage the Trust. The petitioner thereafter filed appeal No. 6/2005 against the said order before the Presiding officer of the Maharashtra Wakf Tribunal, Aurangabad. While this appeal was pending for quite time, on 27/07/2006, the petitioner moved an application seeking withdrawal of the appeal with a liberty to file fresh one on the same cause of action. The application was opposed and by the impugned order, the presiding officer held that there is no provision in law permitting withdrawal of the appeal with giving liberty to file a fresh one. So, on one hand, he refused to grant liberty to file a fresh appeal but dismissed the appeal, as withdrawn. The question is whether this order is correct? The answer is in negative. 3 The learned Presiding Officer erred in ignoring the fact that the application seeking withdrawal of the appeal was contingent. He would withdraw the appeal only if he was granted liberty to file a fresh one. If by any chance such liberty is not permissible, the petitioner would not withdraw his appeal and continue the same on merits. The learned Presiding Officer therefore, could have refused to grant liberty to file a fresh appeal but should have directed the petitioner / appellant to continue with the appeal on merits. W.P. 5336/2007 3 So, following order would suffice the ends of justice. ORDER a) The impugned the order dated 5th August, 2006 passed by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad on Exh. 41 in appeal No. 8/2005, is set aside. b) The appeal is restored to file and the same shall be decided on merits. c) Writ petition disposed of. [A.V. NIRGUDE, J.] ts k/2011/April25/wp5336.07/ok