1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO.1524 OF 2010 Syed Sadiq Ali Quadri ... APPLICANT VERSUS The State of Maharashtra . ... RESPONDENT ..... Shri J.R. Shaikh, Advocate for the applicant Mrs. Vaishali More, A.P.P. for the respondent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 30h April, 2010 PER COURT: 1. Heard Mr. J.R. Shaikh, learned counsel for the applicant as well as heard Mrs. Vaishali More, learned A.P.P. for the respondent. 2. This is an application preferred by the applicant, seeking anticipatory bail, apprehending his arrest under C.R. No.112/2010, registered at Cantonment Police Station, Aurangabad for the offences punishable under Sections 420, 413, 421, 427, 465 and 468 of the Indian Penal Code. 2 3. The applicant is the Chief Executive Officer of Maharashtra State Wakf Board, situated at Aurangabad. It appears that, the offence has been registered against him on the basis of complaint lodged by the complainant namely Javed Yar Khan s/o Mahemood Khan on 2.4.2010, alleging that the property bearing City Survey No.223 under the Wakf Board belongs to Dargah Hazrat Wahaboddin Rh. and the said land is given on lease after calling the tenders therefor by the Wakf Board. However, prior to giving the said land on lease by Wakf Board, Government sanction is necessary. It is also alleged that, on 5.3.2010, the Chief Executive Officer of Maharashtra State Wakf Board, Aurangabad, namely S.S. Ali Quadri called the tenders, but without scrutinising the said tenders, false and forged tender of his brother-in-law namely Mohd. Mushfikoddin was approved and the aforesaid land was given on lease to him. 4. On the aforesaid background, the learned counsel for the applicant submitted that resolution No.137 was passed in the meeting of Maharashtra State Wakf Board held on 8.2.2010 that the tenders be called for three years lease and to finalise the same for aforesaid land. Accordingly, learned counsel for the applicant submitted that, tender notice was given in local newspaper on 18.2.2010 and in all 22 persons including the allottee namely Mohd. Mushfikoddin purchased the tender forms and the said allottee 3 gave the highest bid for the lease i.e. Rs.3,72,000/- for first year, Rs.3,90,000/- for second year and Rs.4,00,000/- for third year and, therefore, letter was sent to him to enhance the said bid amount for the lease and accordingly, the said bidder gave letter on 11.3.2010 and enhanced the said amount of lease to Rs.3,80,000/- for first year, Rs.4,20,000/- for second year and Rs.4,70,000/- for third year, and lease deed was executed in his favour and the possession of aforesaid land was handed over to him on lease accordingly. Thus, the learned counsel for the applicant submitted that, the tender of highest bidder was accepted and there is no illegality therein as alleged and, therefore, submitted that, present application be allowed. 5. Mrs. Vaishali More, learned A.P.P. opposed the present application vehemently and submitted that, as per section 56(2) of Wakf Act, 1995, for the lease exceeding one year and not exceeding three years of immovable property, which is Wakf property, attracts previous sanction of the Board. It is also canvassed that, by Government Resolution dated 1.11.2003, the prior Government sanction is necessary for execution of lease deed of Wakf property for the period from one year to three years and the said prior sanction has not been obtained in the present case. It is also canvassed that, name of the applicant has been categorically stated in the present complaint and specific role has been attributed 4 to him and, therefore, there is no false implication of the applicant in the present case. 6. As regards the aforesaid Government Resolution dated 1.11.2002, the learned counsel for the applicant submitted that, the applicant was not aware about the said Government Resolution and, therefore, prior sanction of the Government could not be obtained before execution of the lease deed in question. 7. Considering the rival submissions advanced by both the learned respective counsel for the parties, Section 56(2) of the Wakf Act, 1995 is clear whereby a lease or sub-lease for a period exceeding one year and not exceeding three years of immovable property which is Wakf property, shall, notwithstanding anything contained in the deed or instrument of Wakf or in any other law for the time being in force, be void of no effect unless it is made with the previous sanction of the Board. Moreover, by Government Resolution dated 1.11.2002, issued by Revenue and Forest Department, Government of Maharashtra, it is prescribed that, the Wakf Board has the authority to execute a lease deed of immovable property on lease for a period exceeding one year and not exceeding three years, but as per Rule 97 of Wakf Rules, 1995, the prior sanction of Government is necessary before execution of such lease deed and if such lease deed is executed without prior 5 sanction of the Government, it shall be void. 8. Admittedly, on the aforesaid scenario, the applicant herein has executed lease deed for the period of three years in favour of allegedly highest bidder namely Mohd. Mushfikoddin and possession of the said immovable property has been already handed over to him that too without obtaining prior sanction of the Government, as per Government Resolution dated 1.11.2002. In the said context, it is the contention of the learned counsel for the applicant that, the applicant was not aware about the said Government Resolution dated 1.11.2002 and, therefore, the lease deed for the period of three years came to be executed in favour of allottee without obtaining prior sanction of the Government. However, such explanation is not acceptable since the applicant is Chief Executive Officer of Wakf Board and apparently, there is mistake/ fatal error in executing the lease deed in favour of the allottee which cannot be construed as bonafide mistake since the vital pre-requisition prior to execution of lease deed has not been complied with. 9. Besides that, the name of the applicant has been reflected in the contents of complaint as well as specific role has been attributed to him and, therefore, apparently, there is no possibility of false implication of the applicant in the present 6 offence. Moreover, considering the nature and gravity of the accusations made against the applicant in the present complaint, custodial interrogation of the applicant is necessary for the further progress in the investigation in proper perspective and, therefore, present application deserves to be rejected. 10. In the result, present application bears no substance and same is devoid of any merits and, therefore, same stands dismissed. Interim protection stands vacated. 11. Needless to say that the above observations are prima facie in nature and shall not come in way of any Court while deciding the matter on merits. 12. Learned counsel for the applicant submitted that, interim protection was granted by learned Additional Sessions Judge-5, Aurangabad from 3.4.2010 to 12.4.2010 and from 12.4.2010 to 15.4.2010 and thereafter this Court granted interim protection from 15.4.2010 which is effective till today. The learned counsel for the applicant requested that, same be extended to enable the applicant to approach the Hon’ble Supreme Court. It is also submitted that applicant is Government servant and, therefore, the interim protection needs to be extended as aforesaid. 7 13. The learned A.P.P. opposed the said prayer and submitted that the said prayer be rejected. 14. Considering the rival submissions, although interim protection was granted by this Court and although same is effective till today, the applicant herein committed fatal error /mistake, which does not appear to be bonafide as stated above, and, therefore, the prayer for extension of interim protection stands rejected. (SHRIHARI P. DAVARE) JUDGE fmp/cri159810