High Court · 2024
Facts
Tauseef18-CRA.151.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL APPELLATE JURISDICTIONCIVIL REVISION APPLICATION (CRA) NO.151 OF 2023Syed Nisar Badesaheb Jahagirdar...ApplicantVersus1.The Maharashtra State Board of Wakf, through Chief Executive Officer, Panchakki, At Aurangabad. 2.Sayed Iliyaz Isamuddin Jahagirdar(Peerzade). ...RespondentsWITHCIVIL REVISION APPLICATION (CRA) NO.103 OF 20241.Syed Zuber Abdul Sattar Hundekari,2.Shaikh Shakur Aziz Ahmed,3.Syed Dastagir Badesaheb,4.Khan Nazir Gulam Mohammad. ...ApplicantsVersus1.The Maharashtra State Board of Wakf, through Chief Executive Officer, Panchakki, At Aurangabad. 2.Sayed Iliyaz Isamuddin Jahagirdar(Peerzade). ...Respondents_____________________________________________________Adv. S. S. Kazi for Applicant in CRA/151/2023. Adv. S. S. Kazi h/f. Adv. A. M. Inamdar for Applicant in CRA/103/2024. Adv. N. R. Deshmukh for Respondent No.1. Ms. S. R. Rajput for Respondent No2. _____________________________________________________1 of 8
Legal Reasoning
Tauseef18-CRA.151.2023.odtin Change Report No.42/119/2020 was not in accordance with modeand manner prescribed under scheme. Further appointment was notwithin stipulated time, i.e., within three months from the date ofvacancy. The sole surviving trustee could not have exercised powersbeyond the scope of Clause 9 of the Scheme. Consequently, LearnedTribunal quashed and set aside order of Waqf Board. The trusteessought to be appointed as per the change report were not before WaqfBoard nor they approached Tribunal in Waqf Application No.3 of 2023by filing intervention application. The Waqf Tribunal passed impugnedorder considering legal and factual aspect of the matter. No prejudiceis caused to the proposed trustees. She would, therefore, urge tomaintain order passed by the Tribunal. 6.Having considered submissions advanced, it can be gatheredthat Waqf Institution – Peer Hazrat Imaam Saheb Dargah has beenregistered under Bombay Public Trusts Act, 1950. The one BadesahebPapamiya Jahagirdar was the founder trustee and Mutawalli of theWaqf Institution along with other founder trustee; namely, Yaseen KhanBashir Khan, Shaikh Abdul Saudagar and Sayed Baliuddin Peerzade,who expired long back and another trustee; namely, Shaikh IqbalAhmed Bilal had also resigned. The Badesaheb, who was old agedtrustee/Mutawalli, appears to have appointed applicant and others astrustees vide resolution dated 14th January 2020. The Change Report5 of 8 Tauseef18-CRA.151.2023.odtNo.42/119/2020 was submitted based on such resolution under Section42(1)(2) of the Waqf Act, 1995 to Chief Executive Officer, MaharashtraWaqf Board. The said application came to be allowed vide order dated28th December 2022. It appears that Respondent No.2, aggrieved byorder dated 28th December 2022 filed Waqf Application No.3 of 2023before Waqf Tribunal at Aurangabad. Wherein, Applicant NisarBadesaheb Jahagirdar was added as Respondent No.2, whereas WaqfBoard was added as Respondent No.1. The other four trustees, whowere appointed under Change Report No.42/119/2020 were not addedas parties. The Tribunal entertained Waqf Application No.3 of 2023reserved order of Board and rejected Change Report No.42/119/2020. 7.It is trite that a public trust is not the body corporate. Thechange report in respect of addition or deletion of any trustee wouldcreate certain rights individually in favour of such trustees.Consequently, in present case, Waqf board was pleased to accept thechange report in respect of in all five trustees, who are Applicantsbefore this Court. However, while assailing the order of Waqf Board,Sayed Nasir Badesaheb Jahagirdar was only added as contestingRespondent along with Waqf Board. The other trustees, who areApplicants in C.R.A. No.103 of 2024 were neither added as party, northey were noticed about Waqf Application No.3 of 2023. The Learned6 of 8 Tauseef18-CRA.151.2023.odtTribunal quashed and set aside order of Wakf Board without hearing orgranting opportunity of being heard to trustees, except Sayed Nasir. 8.In that view of the matter, the impugned order cannot besustained in law for non-adherence to principles of natural justice.Hence, it would be in fitness of things to grant opportunity to alltrustees, who were party to the Change Report No.42/119/2020.Consequently, civil revision applications succeeds and disposed asfollows:-O R D E R(i)C.R.A. Nos.151 of 2023 and 103 of 2024 are partlyallowed. (ii)Impugned order dated 11th July 2023 passed byMaharashtra State Waqf Tribunal, Aurangabad in WaqfApplication No.3 of 2023 is hereby quashed and setaside. (iii)The matter is remitted back to the Waqf Tribunal in WaqfApplication No.3 of 2023. The Applicants in C.R.A.No.103 of 2024 be added as party Respondents in WaqfApplication No.3 of 2023 on its re-registration. 7 of 8 Tauseef18-CRA.151.2023.odt(iv)The Waqf Tribunal shall reconsider the Waqf ApplicationNo.3 of 2023 after granting opportunity of hearing to theadded Respondents and pass afresh order in accordancewith law. (S. G. CHAPALGAONKAR, J.)8 of 8
Arguments
Tauseef18-CRA.151.2023.odtCORAM :S. G. CHAPALGAONKAR, J.DATED : 2nd DECEMBER 2024.JUDGMENT:-1.Both the aforesaid civil revision applications impugns anorder dated 11th July 2023 passed by learned Chairman and Member ofWaqf Tribunal Aurangabad in Waqf Application No.3 of 2023, by whichan order passed by Maharashtra State Board of Waqf in FileNo.42/119/2020 is set aside. 2.Mr. S. S. Kazi, learned Advocate appearing for the Applicantsubmits that Waqf Institution, namely Peer Hazrat Imaam Saheb Dargahsituated at Kothla, District Ahmednagar has been registered as publictrust vide Registration No.B-116 (Ahmednagar). The Applicant’s fatherwas founder trustee/Mutawalli of institution. The trust is run as per thescheme framed for management and administration of the trust, whichhas been approved by the Competent Authority. The Clause 9 of theScheme provides for mode and manner for appointment of newtrustees. The vacancy of the trustees arose on account of death orresignation of founder trustees. Therefore, on 14th January 2020, aresolution appointing new trustees was passed. Eventually, on 3rd July2020, change report was submitted under Section 42 of Waqf Act, 1995.The Respondent No.2 had also filed a Change Report No.42/115/2020,which was objected by the Applicant. Finally, Respondent No.1-Waqf2 of 8 Tauseef18-CRA.151.2023.odtBoard passed an order dated 28th December 2022, accepting changereport submitted by Sayed Bade sahab Papamiya Jahagirdar i.e. fatherof Applicant while rejecting change report submitted by RespondentNo.2, observing that Respondent No.2 had no authority to file changereport as per Section 42. The order dated 28th December 2022 wasassailed by Respondent No.2 before Waqf Tribunal vide WaqfApplication No.3 of 2023 which came to be allowed, thereby settingaside order of Wakf Board regarding acceptance of Change ReportNo.42/119/2020. 3.Mr. Kazi, learned Advocate appearing for the Applicantsubmits that change report filed by Applicant was based on theresolution dated 14th January 2020. The Applicant along with otherfour trustees; namely, Shaikh Zubair Abdul Sattar Hundekari, ShaikhShakur Aziz Ahmed, Sayed Dastagir Bade Saheb and Khan Nazir GulamMohammad were appointed as trustees as against death of threefounder trustees and resignation of one of the trustees. Theappointment of all trustees was made by the founder trustee as perClause No.9 of the Scheme. The change report was rightly accepted byWaqf Board. However, Waqf Tribunal pleased to set aside order of WaqfBoard on erroneous count. He would submit that Respondent No.2while raising challenge to the order of Waqf Board, only added presentApplicant party Respondent in Waqf Application No.3 of 2023 but other3 of 8 Tauseef18-CRA.151.2023.odttrustees who were appointed as per Change Report No.42/119/2020were intentionally omitted from array of party in Waqf Application. Hewould submit that in absence of all trustees being party, learnedTribunal should not have entertained application. 4.Mr. A. M. Inamdar, learned Advocate appearing for theApplicants in Civil Revision Application No.103 of 2023 also raises thesame grievance that the Applicant was appointed as trustees in respectof whom, the Change Report No.42/119/2020 was accepted by WaqfBoard. They were not heard by learned Tribunal before passing theimpugned order. Consequently, he urges to quash and set aside theimpugned order and remit matter back to the Tribunal forreconsideration after granting opportunity of hearing to the Applicants.5.Per contra, Ms. S. R. Rajput, learned Advocate appearing forRespondent No.2 would submit that the Change ReportNo.42/119/2020 was submitted by the Applicant-Syed Nisar BadesahebJahagirdar, i.e., Applicant in C.R.A. No.151 of 2023 before the WaqfTribunal under Section 42 of the Waqf Act, 1995. The Waqf Board hadpassed order accepting change report. The order of Waqf Board wasassailed before the Waqf Tribunal under Section 83(2) of the Waqf Act,1995. The parties were added as per title clause of the change report.The Waqf Tribunal observed that the appointment of trustees indicated4 of 8