Bombay High Court
Haji Hasanali Khalily And Ors vs Shaikh Gulam Gous Gulam Mohd. And ... on 8 March, 2016
Bench: T.V. Nalawade
CRA No. 159/12 & Anr.
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 159 OF 2012 (AURANGABAD)
(CIVIL REVISION APPLICATION NO. 21 OF 2011(BOMBAY)- old)
WITH
CIVIL APPLICATION NO. 6244 OF 2014
1. Haji Hasanali Khalily,
Age 70 years, Occu. Business,
R/o. Solapur Bazaar Camp,
Pune -1.
2. Mohammad Mehdi Ganji,
Age 65 years, Occu. Business,
R/o. Guruwar Peth, Pune-42.
3. Mahemood Hasham Moosavi,
Age 60 years, Occu. Business,
R/o. Nanapeth, Pune - 42. ....Applicants.
Versus
1. Shaikh Gulam Gous Gulam Mohd.
Age 38 years, Occu. Service,
R/o. 323/5, Mahatma Phule, Pune-42.
2. Fahim Aslam Shaikh,
Age 25 years, Occu. Business,
R/o. 436, Guruwar Peth, Pune-42.
3. Amanullah Khan s/o. Mohd. Ali Khan,
Age 54 years, Occu. Business,
R/o. Tatya Tope Society No. 2,
Bangla No. 1, Fatima Nagar,
Pune - 411 040.
4. Jawed Fakir Mohammad Khan,
R/o. Flat No. 2, Sumangal Heights,
12/1/2 Anandnagar, Pune.
5. Feroz Bhurekhan, Age 45 years,
Occu. Business, R/o. 444/45,
Guruwar Peth, Pune.
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CRA No. 159/12 & Anr.
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6. Pune Municipal Corporation,
Through its Commissioner Pune,
City Pune.
7. The Maharashtra State Board of
Wakfs through its Chief Executive
Officer, Panchakki, Aurangabad.
8. Sayed Zaulfikarali Ahmed Husain,
Age 55 years, occu. Service,
R/o. 691, Guruwar Peth, Pune - 42.
9. Gulam Raza Nagar Ali Asariya,
Age 65 years, Occu. Business,
Vishal Apartment Bhavanipeth,
Pune - 42.
10. Mohammad Hussain Mastan,
Age 75 years, Occu. Business,
R/o. 15, Mumbai Pune Road,
Khadki, Pune - 42. ....Respondents.
Mr. A.S. Bajaj, Advocate for applicants.
Mr. J.R. Shah & Giresh Rane, Advocate for respondent Nos. 1 to 5.
Mr. S.P. Chapalgaonkar, Advocate for respondent No. 6.
Mr. Y.B. Pathan, Advocate for respondent No. 7.
Mr. Yusuf Muchhala, Senior Counsel i/b. Mr. S.S. Kazi, Advocate
for respondent Nos. 8 & 9.
Mr. Md. Waseemulla, Advocate for respondent No. 10.
WITH
CIVIL REVISION APPLICATION NO. 25 OF 2011
WITH
CIVIL APPLICATION NO. 6996 OF 2011
WITH
CIVIL APPLICATION NO. 5131 OF 2014
WITH
CIVIL APPLICATION NO. 1380 OF 2016
1. Sayyed Zaulfikarali Ahmed Hussain,
Age 55 years, Occu. Service,
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CRA No. 159/12 & Anr.
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R/o. 691, Guruwar Peth, Pune - 42.
2. Gulam Raza Nazar Ali Asariya,
Age 65 years, Occu. Business,
Vishal Apartment Bhavanipeth,
Pune - 42. ....Applicants.
Versus
1. Shaikh Gulam Gous Gulam Mohd.
Age 38 years, Occu. Service,
R/o. 323/5, Mahatma Phule, Pune-42.
2. Fahim Aslam Shaikh,
Age 25 years, Occu. Business,
R/o. 436, Guruwar Peth, Pune-42.
3. Amanullah Khan s/o. Mohd. Ali Khan,
Age 54 years, Occu. Business,
R/o. Tatya Tope Society No. 2,
Bangla No. 1, Fatima Nagar,
Pune - 411 040.
4. Jawed Fakir Mohammad Khan,
R/o. Flat No. 2, Sumangal Heights,
12/1/2 Anandnagar, Pune.
5. Feroz Bhurekhan, Age 45 years,
Occu. Business, R/o. 444/45,
Guruwar Peth, Pune.
6. Pune Municipal Corporation,
Through its Commissioner Pune,
City Pune.
7. The Maharashtra State Board of
Wakfs through its Chief Executive
Officer, Panchakki, Aurangabad.
8. Haji Hasanali Khalily,
Age 70 years, Occu. Business,
R/o. Solapur Bazaar Camp,
Pune -1.
9. Mohammad Mehdi Ganji,
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CRA No. 159/12 & Anr.
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Age 65 years, Occu. Business,
R/o. Guruwar Peth, Pune-42.
10. Mahemood Hasham Moosavi,
Age 60 years, Occu. Business,
R/o. 70 Nanapeth, Pune - 42.
11. Mohammad Hussain Mastan,
Age 75 years, Occu. Business,
R/o. 15, Mumbai Pune Road,
Khadki, Pune -42 ....Respondents.
Mr. Yusuf Muchhala, Senior Counsel i/b. Mr. S.S. Kazi, Advocate
for applicants.
Mr. J.R. Shah & Girish Rane, Advocate for respondent Nos. 1 to 5.
Mr. S.P. Chapalgaonkar, Advocate for respondent No. 6.
Mr. Y.B. Pathan, Advocate for respondent no. 7.
Mr. Md. Waseemullah, Advocate for respondent Nos. 8 to 11.
CORAM : T.V. NALAWADE, J.
DATED : 8th March, 2016.
COMMON JUDGMENT :
1) Both the proceedings are filed against one finding
given by Waqf Tribunal in Suit No. 134/2007. The finding is given
that the disputed property and the waqf institution is Sunni
waqf. Both the sides are heard.
2) The dispute is in respect of the management of the
Dargah of Hazrat Rajashah Fakir Takiya, which is also known as
Khange Pir. This religious institution owns property bearing C.T.S.
No. 436, having area of 1427 Sq. Mtrs. and it is situated at
CRA No. 159/12 & Anr.
Guruwar Peth, Pune. On this property, there are structures of
Masjid also.
3) The plaintiffs belong to Sunni sect and it is their
contention that they have faith in Saint, in whose name Dargah
is constructed. It is their case that they perform Fateha as per
Sunni Law at Dargah. It is their case that in the past, one
Bademiya, who ig was Sunni, was managing this religious
institution as he was Jahagirdar, Inamdar and also Mutawalli. It is
contended that the institution was first registered under the
Bombay Public Trust Act in the year 1965 and at that time, the
name of Bademiya was registered as trustee, Mutawalli. It is
contended that from that time, Muslim persons of Sunni sect
were controlling the religious institution.
4) It is the case of plaintiffs that the religious institution
was registered as Sunni waqf under the provisions of the Waqf
Act, 1995 also and such notification was published in official
gazette.
5) It is the case of plaintiffs that defendant Nos. 1 to 7
had applied u/s. 36 of the Waqf Act, 1995 for registration of the
institution again and the plaintiffs had taken objection to the
CRA No. 159/12 & Anr.
application. It is contended that defendant Nos.1 to 7 are not
Sunni. Application of defendant Nos. 1 to 7 was, however,
allowed by the Waqf Board. Application No. 24/2007 was filed by
the plaintiffs of aforesaid suit to challenge the said registration.
6) Defendant No. 8, Pune Municipal Corporation, had
prepared development plan in the year 1977 and in that plan,
the aforesaid property of waqf was shown to be reserved for
vegetable market. It is the case of plaintiffs that there was no
necessity of acquisition of the property of waqf, religious
institution, as other property was available for such market in
the vicinity. It is the case of plaintiffs that defendant Nos. 1 to 7
had no authority to give property to Corporation for such market,
but they gave proposal to Corporation to see that the property is
first given to Corporation under acquisition and then some
portion which will be very small, is returned to the waqf. It is
contended in the plaint that on the basis of this proposal of
defendant Nos. 1 to 7, Corporation published notice in
newspaper and objections were called. It is contended that even
Waqf Board had not given consent for the proposal given by
defendant Nos. 1 to 7 to Corporation. To prevent these
defendants from handing over the property of waqf to
Corporation, the suit was filed. Declaration was claimed in the
CRA No. 159/12 & Anr.
suit that the proposal submitted by defendant Nos. 1 to 7 to
Corporation is illegal and they have no authority to give such
proposal. Relief of injunction was claimed to prevent them from
handing over the property of waqf.
7) Defendant Nos. 2 to 7 contested the suit by making
following contentions.
(i) The suit is filed with mala-fide intention. Already
there were proceedings against plaintiffs and
authorities have given decision that atleast two
plaintiffs were trespassers on some portion of the waqf
property, they were to loose the possession and so,
they took the action like filing suit against defendant
Nos. 1 to 7. Decision given against these plaintiffs of
eviction has become final though the matter was taken
up to the Supreme Court by those plaintiffs.
(ii) The property was reserved by the planning
authority in the year 1987 itself for public purpose.
Though the purpose which was mentioned in the past
was not vegetable market, Local Body had power to
make such reservation and defendant Nos. 1 to 7 were
trying to protect the property of waqf from acquisition
and they were trying to get back atleast some
CRA No. 159/12 & Anr.
property, so such proposal was given by them to Local
Body.
(iii) Defendant Nos. 1 to 7 are trustees of the waqf
and the plaintiffs have no right to interfere in the
administration of waqf.
(iv) In the application No. 36/2016, it was considered
by Joint Charity Commissioner Pune that scheme was
framed for the management of the trust and in that
scheme, it was declared that Muslims of 'Shiya Ishna
Ashri community' were trustees of the trust, it was
Shiya waqf.
8) The Waqf Tribunal framed following issues on the
basis of aforesaid contentions.
"1) Whether plaintiffs prove that they have legal
right or legal locus standi to file the suit against
defendants ?
1A) Whether plaintiff proved the disputed wakf
institution situated at 436 Guruwarpeth, Pune, is the
Sunni wakf institution ?
2) Whether suit property is wakf property ?
3) Whether suit is maintainable in law in the present
form and relief claimed in suit ?
CRA No. 159/12 & Anr.
4) Whether plaintiffs prove that defendant no. 1 to 7
have given illegal proposal in respect of suit property
given to defendant No. 8 as alleged in plaint ?
5) Whether suit is maintainable in law in absence of
required notice u/s. 487 of B.P.M.C. Act ?
6) Whether plaintiff is entitled for the relief sought ?
7)
What order and decree ?"
9) Before Tribunal, both the sides gave evidence. As per
the record, Bademiya Jahagirdar was Mutawalli and the mode of
succession of Mutawalliship was hereditary. In the year 1963,
three persons like Shaikh Budhan (predecessor of plaintiff Nos. 1
and 2), Haji Mirza and Aulad Husain Haji had approached to the
office of Charity Commissioner and they had made complaint
against Bademiya. There was allegation that Bademiya was
dealing with the property as private property when it was
property of waqf. In the inquiry held u/s. 19 of the Bombay Public
Trust Act, it was held that the property was public trust. The
record shows that it was not disputed that Bademiya was Sunni
Muslim. Out of the aforesaid three complainants Budhan Shaikh
was Sunni Muslim, but the remaining two complainants were
Shiya Muslims.
CRA No. 159/12 & Anr.
10) The religious institution was registered under the
provisions of Bombay Public Trust Act and so, on the date of
enforcement of the Waqf Act, 1995, there was deemed
registration of this institution in view of the provision of the Waqf
Act, 1995. It is not disputed that the waqf was notified in the
official gazette in the year 2004 as Sunni waqf. Though in
section 36, it is
ig provided that within prescribed period
application needs to be moved for registration under the New
Act, such application is formal in nature and further, not much
importance can be given to the circumstance that such steps
were not taken, if the institution was already registered under
other legislation like the Trust Act. It needs to be kept in mind
that present petitioners representing original defendant Nos. 1
to 7 took the control of the religious institution from successors
of Bademiya. In view of this circumstance, they cannot be called
as 'third party' for the purpose of the Act and so, it needs to be
presumed that they knew about the notification published in
official gazette in the year 2004 that it was Sunni trust.
11) The learned counsel for petitioners submitted that in
view of the nature of dispute, the issue like, whether the waqf
was Shiya or Sunni, was not involved in the suit. He submitted
CRA No. 159/12 & Anr.
that as the issue was unwarranted, the finding given by the
Tribunal on this issue needs to be set aside.
12) The relevant pleadings of both the sides are already
quoted. The record shows that even the Tribunal had not framed
such issue in the past. Present petitioners had taken steps to see
that such issue was framed and they had come up to this Court
by filing Revision No. 81/2009. As they had contended that such
issue was necessary, liberty was given by this Court to them to
apply to the Tribunal for framing of such issue. Only on the basis
of prayer made by the petitioners, such issue was framed by the
Tribunal. Submission was made that subsequently, they had
tried to convince the Tribunal that such issue was unwarranted,
but the Tribunal decided the issue. In view of the nature of
pleading, this Court holds that the Tribunal has not committed
any error in framing the issue and then giving finding on the
issue.
13) Even if such issue was not framed, there was no
finding of the Tribunal in the matter like present one, the things
would not have changed in favour of revision petitioners.
Already, in the year 2004 the waqf was notified as Sunni waqf.
The scheme of the Waqf Act, 1995 shows that separate
CRA No. 159/12 & Anr.
provisions are made for survey of waqf and notifying waqfs as
Shiya waqf and Sunni waqf. In view of the provision of section 6
of the Act, it was necessary for the persons aggrieved to
challenge the notification. Present petitioners were actually
managing the waqf and so, it was necessary for them to
challenge the notification within period prescribed, if they were
feeling aggrieved. Such suit was not filed by the present
petitioners and so, notification was in existence when the finding
was given on the issue by the Tribunal.
14) When issue is framed, in the circumstances like
present one, the burden is always on the party, who claims right
which is different than the record created as per the provisions
of law. The Tribunal has considered the evidence given by both
the sides and other aforesaid circumstances. As per the record,
in the year 1965, Bademiya was Mutawalli and in the inquiry,
which was started by few defendants against Bademiya,
Bademiya had claimed that he was Sunni Muslim. It is already
observed that one of the three complainants was a Sunni
Muslim. Only after that inquiry and due to the compromise made
by successors of Bademiya with defendant Nos. 1 to 7, they
gained control over the religious institution. Then they submitted
new scheme of management in which they showed that only
CRA No. 159/12 & Anr.
Shiya Muslims can become trustees. They could not give
evidence about the Saint in whose name, the Dargah was built.
On the contrary, it was a case of Bademiya that he was
successor of said Saint. Thus, right from the year 1965, it was
the case of Sunni people that the said Saint was Sunni and
Bademiya was successor of said Saint and it was Sunni waqf.
Defendant Nos. 1 to 7 did not give evidence to discharge the
burden of proof. The scheme was prepared by them recently and
they could prepare scheme as they have control over the
institution as trustees. Oral evidence is given by plaintiffs with
regard to the traditions and practices of Sunni like which are
followed at the religious places. It can be said that some
evidence is given by the defendants with regard to other
practices, but those practices could have been followed only
after scheme submitted by defendant Nos. 1 to 7 of aforesaid
nature. The religious institution is there from prior to year 1879
and the material on the record shows that before the change of
the scheme persons like Bademiya, Sunni Muslims were
controlling the institution. There is no record like Muntakhab
showing that the property was given to or by Shiya Muslim. In
view of these circumstances, the issue could have been decided
only on the basis of aforesaid circumstances.
CRA No. 159/12 & Anr.
15) The learned counsel for respondents, original
plaintiffs submitted that considering the scope of revisional
jurisdiction, interference is not possible in the finding given by
the Tribunal. There is force in this submission. The relevant
material which is quoted above, is considered by the Tribunal.
The notification was already there showing that property was
declared as Sunni waqf under the provisions of the Waqf Act,
1995. Thus, no other finding was possible. It cannot be said that
the finding given is illegal or there is irregularity in the
proceeding. In the result, following order is made.
ORDER
Both the revisions stand dismissed. All Civil
applications stand disposed of.
[ T.V. NALAWADE, J. ]
ssc/
