Ishwar Krushnaji Ragit & 5 Ors vs Maha. State Board Of Wakfs & 2 Ors
2017 Latest Caselaw 1399 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH : NAGPUR


                          WRIT PETITION NO.2245/2008


1.   Ishwar Krushnaji Ragit,
     aged about 41 years, 
     Occu. Business & Cultivation,
     Proprietor of Ragit Krushi Kendra, 
     Rajura, Tahsil Rajura, District 
     Chandrapur (Mah.)

2.   Nandkishor s/o Vitthalrao Ragit,
     aged about 36 Yrs., Occu. Cultivation
     & Business Proprietor of Ragit Argo 
     Center Gadchandur, Tahsil Korpana, 
     District Chandrapur (MS)

3.   Vitthalrao s/o Madhaorao Ragit,
     aged about 68 Yrs., Occu. Cultivation
     & Advocate, R/o Rajura, Tahsil Rajura, 
     District Chandrapur (Mah.)

4.   Sau. Vasanti w/o Uttamrao Akre,
     aged about 43 Yrs., Occu. Cultivation
     & Household, R/o Panchasheel Ward 
     Rajura, Tahsil Rajura, 
     District Chandrapur (Mah.)

5.   Arun s/o Murlidhar Dhote,
     aged about 49 Yrs., Occu. Advocate, 
     R/o Rajura, Tahsil Rajura, 
     District Chandrapur (Mah.)

6.   Ravikant s/o Vitthalrao Ragit,
     aged about 39 Yrs., Occu. Cultivation
     R/o Shitalwadi Ramtek, 
     Tah. Ramtek, District Nagpur (Mah.)                                                 ..Petitioners.

         ..Vs..

1.   Maharashtra State Board of Wakfs


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                 Panchakki, Aurangabad
                 (to be served through its Chief
                 Executive Officer).

2.               Additional Collector,
                 Chandrapur.

3.               Sub-Divisional Officer,
                 Rajura.                                                                                                                           ..Respondents.
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                  Shri M.M. Sudame, Advocate for the petitioners. 
                  Shri F.T. Mirza, Advocate for the respondent No.1. 
                  Ms. Harshada N. Prabhu, A.G.P. for respondent Nos.2 and 3.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     3.4.2017.




ORAL JUDGMENT

1. Heard Shri M.M. Sudame, Advocate for the petitioners, Shri F.T.

Mirza, Advocate for the respondent No.1 and Ms. Harshada N. Prabhu, A.G.P.

for the respondent Nos.2 and 3.

2. The petitioners have challenged the order passed by the Wakf

Tribunal on 30th April, 2008 dismissing the application filed by the petitioners

seeking review of the order passed on 8th October, 2007. The petitioners have

also challenged the order dismissing the application filed by them under

Section 83(2) of the Wakf Act, 1995 and maintaining the order passed by the

Maharashtra State Board of Wakfs on 25th July, 2006. This order dated 25 th

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July, 2006 is passed by the Maharashtra State Board of Wakfs under Section

52(1) of the Wakf Act, 1995 requesting the Collector, Chandrapur to cancel the

revenue entries showing the petitioners as the owners of field Survey No.24

(old) [new Survey Nos.27, 28 and 29 admeasuring 5 Acres 36 Gunthas] and

Survey No.47 and 56 (old) [new Survey Nos.71, 72/1, 72/2, 72/3 and 72/1B]

situated at mouja Dhoptala. By this order, the Collector Chandrapur is

requested to take possession of the above fields and hand it over to the

Maharashtra State Board of Wakfs.

Shri M.M. Sudame, learned Advocate for the petitioners has made

submissions on various points, substantial being that the petitioners are not

granted proper opportunity and hearing to defend their claim in the

proceedings.

3. Shri F.T. Mirza, learned Advocate for the respondent No.1 /

Maharashtra State Board of Wakfs has submitted that the petition need not be

entertained as the fields in question were included in the list under Section 5 of

the Wakf Act of 1954 published on 6th March, 1975 and if the petitioners had

any grievance they should have filed a suit before the Wakf Tribunal as per

Section 6 of the then Wakf Act, 1954 and the limitation for filing such suit

being one year, the challenge of the petitioners is barred by limitation. It is

further argued that the order passed by the Maharashtra State Board of Wakfs

under Section 52(1) of the Wakf Act, 1995 cannot be challenged and the

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petitioners, if aggrieved in the matter, can challenge the order which may be

passed by the Collector under Section 52(2) of the Wakf Act, 1995 by filing an

appeal before the Wakf Tribunal under Section 52(4) of the Wakf Act, 1995.

4. The learned Advocate for the petitioners has pointed out the

document Annexure P 9 (placed on record at page No.99 of the paper book). It

is an extract of Pakka Book of village. Relying on this extract dated 20 th

October, 1959 it is submitted that the survey numbers of the fields in question

changed in 1959 and Survey No.24/1 was given new Survey No.32 and new

Survey No.28, and Survey No.24/2 was given new Survey No.29. It is

submitted that because of the discrepancy in mentioning the survey numbers in

the notification dated 6th March, 1975, the petitioners had no occasion to

challenge the list published under Section 5 of the Wakf Act, 1954.

The explanation given on behalf of the petitioners for not

challenging earlier the list published under Section 5 of the Wakf Act, 1954 on

6th March, 1975 can be accepted in respect of the Survey No.24, the

explanation cannot be accepted in respect of Survey Nos.47 and 56.

However, fact remains that the petitioners are in possession of the

fields in question and the Maharashtra State Board of Wakfs has not taken any

action in the matter till the order dated 25th July, 2006 is passed by the Chief

Executive Officer of the Maharashtra State Board of Wakfs.

I find that the petitioners can raise the challenges which are raised

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in this petition by filing suit under Section 6 of the Wakf Act, 1995, if so

advised. Though the petition is admitted and is pending since 2008,

considering the nature of controversy and the disputed questions of fact, in my

view, it would not be appropriate for this Court to delve into the matter. It

would be open for the petitioners to institute suit under Section 6 of the Wakf

Act, 1995, if so advised. If suit is instituted by the petitioners, it will be

considered by the Wakf Tribunal according to law. In the facts of the case, it is

directed that the possession of the petitioners over the fields in question shall

not be taken pursuant to the order passed by the Chief Executive Officer of

Maharashtra State Board of Wakfs for three months and further action will be

as per the orders which may be passed by the Wakf Tribunal in the matter, if

suit is instituted by the petitioners.

The petition is disposed in the above terms.

In the circumstances, the parties to bear their own costs.

JUDGE

Tambaskar.