1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6480 OF 2009 1. Mohammed Sikandar s/o Mohammed Shaukat, Age 35 years, Occ. Business, R/o Imambada Chowk, Qureshi Nagar, Tq.Mehkar, District Buldhana. 2. Shaikh Abrar Shaikh Sheru Qureshi, Age 50 years, Occ. Business, R/o as above. 3. Mohammed Shammim Mohammed Aziz Qureshi, Age 40 years, Occ. Business, R/o as above. 4. Mohammed Javed Mohammed Yusuf Panwala, Age 34 years, Occ. Business, R/o as above. 5. Ashraf Abdul Sattar, Age 45 years, Occ. Business, R/o as above. ... PETITIONERS VERSUS 1. Maharashtra State Board of Wakfs, through its Chief Executive Officer, Panchakki, Aurangabad. 2. Chief Executive Officer, Maharashtra State Board of Wakfs, Panchakki, Aurangabad. 3. Abdul Sami Khan Abdul Hamid Khan, Age 40 years, Occ. Business, R/o Mehkar, Taluka Mehkar, District Buldhana. . ... RESPONDENTS ..... Shri P.M. Shah, Senior Counsel, instructed by Shri G.D. Shaikh, Advocate for the petitioners Shri S.A.G. Qureshi, Advocate for respondent No.2. Shri A.D. Kasliwal, Advocate for respondent No.3. ..... 2 CORAM : K.U. CHANDIWAL, J. DATE : 27th October, 2010 ORAL JUDGMENT : 1. Rule was issued on 30.9.2010 and ad-interim relief in terms of prayer clause (D) was granted, thereby the order under challenge, dated 29.6.2009 was stayed. A Civil Application was moved by respondents and precisely respondent No.3, before this Court, being Civil Application No.12054/2009. This Court, on hearing the learned counsel for respondent No.3, and since the counsel for petitioners, in spite of notice, remained absent, passed following order : “1. Heard learned Advocate Mr. Kasliwal, for the applicant. None appears for the respondents i.e. original petitioners. It appears that interim relief is granted in terms of prayer clause (D) when the present applicant was not heard. It also appears that though there is alternate remedy available, yet the same was not availed. Consequently, the interim relief stands vacated. C.A. allowed.” 2. Thereafter, on Civil Application No.4356/2010, moved by petitioners, this Court directed the parties to maintain status quo which is prevalent as on today. 3. Several questions are urged by learned Senior Counsel for the petitioners and the learned counsel for the 3 respondents. The existence of the Trust, and respondent No.3 being the sole surviving trustee of the trust is not in controversy. The powers, mode and the manner of appointing the trustee is also illustrated in clause (9), which reads as under : “9. Mode and manner of appointing new Trustees:- Whenever any of the trustees either original or substituted under the scheme shall die or be absent for six consecutive months from India without leave or absence from Assistant Charity Commissioner, Akola Region, Akola or be convicted of criminal offence involving moral turpitude or discharged from or released or becomes unfit or incapable to act as a trustee or trustees, the suriviving or continuing trustees for the time being shall appoint any other person or persons to be trustee or trustees, in the place of trustee or trustees so dying or being convicted as aforesaid or desiring to be discharged refusing or becoming unfit or incapable to act as aforesaid nevertheless, the number of trustees shall not be less than three or more than seven. If any such vacancy occurs and no appointment in writing of a new trustee or trustees shall be made within three months from the happening of such event, it shall be lawful for the Assistant Charity Commissioner, Akola at any time after the expiration of such period by writing to appoint a new trustee or trustees of this Trust as he may think fit and proper.” 4. An application was made by petitioners before the learned Chief Executive Officer by Enquiry Case No. 83/Mehkar/2004, and by order dated 17.6.2006, the learned Chief Executive Officer nominated the names of the members of 4 the managing committee of the Wakf institution, which also incorporate name of respondent No.3 as the member of managing committee. Both the sides agree that this order dated 17.6.2006 is not questioned by the parties litigating. 5. An application was moved by the respondent No.3 in terms of Section 42 of the Wakf Act, 1995 for notifying change in the management of the Wakf. In paragraph No.2 thereof, the said applicant Abdul Sami Khan Abdul Hamid Khan (respondent No.3 in the Writ) illustrated as under : “2. That, on Schedule-I there are seven trustees shown. However, out of seven the applicant is alive and rest of five trustees are expired and one trustee namely Sk. Chand s/o Sk. Budan. At present applicant is sole trustee of the trust.” In the said application, the respondent No.3 has made wild allegations against the writ petitioner and how he has been manipulating the record of the trust and consequently, application was sought to be allowed in terms of Section 42 of the Wakf Act. Annexure was enclosed and respondent No.3 urged to record names of new trustees. 6. Indeed, this application is perfectly in tune to the constitution of the Trust, which is more high-lighted in terms of clause (9) referred hereinabove. However, the fact remains, the 5 writ petitioner and the respondent No.3, by their conduct, acquiesced to face an order dated 17.6.2006, whereby arrangement of the Trust was made. This is, to repeat, is not questioned. 7. The learned Chief Executive Officer, while dealing with application under Section 42 of the Wakf Act, having not called upon to deal with the orders dated 17.6.2006, apparently has rejected the orders of the earlier Chief Executive Officer and sought to make arrangement in terms of name in Schedule I of respondent No.3, for appointment of new trustees. 8. Two questions are mixed, one based on the legal rights vested in respondent No.3 referable to the constitution, the other, the arrangement made by order dated 17.6.2006. Unless the order dated 17.6.2006 is set aside by making appropriate proceedings or application under Section 83, it was not within the competence of the Chief Executive Officer to quash the order dated 17.6.2006 by the impugned judgment. 9. Still the fact remains, status of respondent No.3 as the sole surviving trustee of the Trust and he being still in the Schedule I of the Trust being not altered, his legal position will be supreme. 6 10. The other facts referred by both the sides about maintainability of the Writ Petition or review of the order need not be travelled, as indeed rule was already issued though there is a provision in terms of Section 83(2) of the Wakf Act, 1995 to challenge the order dated 29.6.2009 before the Tribunal. Still the Writ would be maintainable, as the eventualities indicated in a judgment of the Apex Court in the matter of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others ( (1998) 8 SCC 1), prevails. The Apex Court has observed that the alternate remedy would not operate as a bar in at least three contingencies namely (a) Where the Writ Petition seeks enforcement of any of the fundamental rights, (b) Where there is violation of principles of natural justice. (c) Where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. 11. This view of the Apex Court is re-iterated in a subsequent judgment by the Hon'ble Lordships of Supreme Court in the matter of Popcorn Entertainment and another Vs. City Industrial Development Corporation and another ( (2007) 9 SCC 593). In paragraph nos.21, 22 and 23, the Lordships have observed as under : “21. As regards non-maintainability of the writ 7 petition, the appellant relied upon the following decisions of this Court wherein this Court has held that the writ petitions can be held to be maintainable under certain circumstances: (i) Gunwant Kaur V. Municipal Committee, Bhatinda, (ii) Century Spg. and Mfg. Co. Ltd. V. Ulhasnagar Municipal Council, (iii) Bal Krishna Agrawal (Dr.) V. State of U.P. (iv) Whirlpool Corpn. V. Registrar of Trade Marks, (v) Harbanslal Sahnia V. Indian Oil Corpn. Ltd. (vi) Corpn. of the City of Bangalore V. Bangalore Stock Exchange, (vii) ABL International Ltd. V. Export Credit Guarantee Corpn. of India Ltd. (viii) Sanjana M. Wig V. Hindustan Petroleum Corpn. Ltd. 22. He invited our attention to Whirlpool Corpn. case wherein this Court has held that there are three clear-cut circumstances wherein a writ petition would be maintainable even in a contractual matter. Firstly, if the action of the respondent is illegal and without jurisdiction, secondly, if the principles of natural justice have been violated and thirdly, if the appellants’ fundamental rights have been violated.” 23. According to the learned Senior Counsel, all the three principles as laid down in Whirlpool Corpn. have been made out in the instant case because the action of CIDCO is wholly without jurisdiction as it is seeking to resile from a concluded contract contrary to the express terms of the contract. Secondly, CIDCO, has violated the principles of natural justice as an order affecting the right of the appellant has been passed without giving an opportunity of hearing to the appellant and thirdly, the appellants’ fundamental rights as guaranteed under Article 14 of the Constitution of India have been violated because similar allotments made without calling for tenders are not sought to be cancelled and the appellant is being singled out by CIDCO while seeking to cancel the allotment in favour of the appellant.” 8 12. Since the learned Chief Executive Officer could not have reviewed the order, since the Wakf Act inhibits to do so, nor there was any fraud that could have been demonstrated as the order dated 17.6.2006 was on merits after hearing the respondent No.3 and also the petitioner, the interference in the Writ was justifiable, and in the text of the above details, the objection to maintainability of the Rule is diluted and taken away. 13. Taking survey of these events, it is open for the respondent No.3 to challenge the competence of the order dated 17.6.2006 in the light of the constitution of the Trust, and the respondent No.3 being the sole surviving trustee. However, it could not have been done by the order by the learned Chief Executive Officer by virtue of impugned order. The impugned order, therefore, is set aside. The arrangement of respondent No.3 looking after the affairs of the Trust to continue for a period of three months. The respondent No.3 is at liberty to seek appropriate reliefs and remedies. If the respondent No.3 fails to activate, the learned Chief Executive Officer, in terms of Section 65(1) of the Wakf Act, 1995, shall be competent to assume to direct the management of the subject Trust. With the above indications, rule partly made absolute. No costs. K.U. CHANDIWAL JUDGE