Bombay High Court
Shreyas Infrastructures And Anr vs The State Of Mah on 9 October, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4258 OF 2007
1. Shreyas Infrastructures,
A Partnership firm,
Through it's Partner,
Shri Sapan Sushilkumar
Zunzunwala, Age : 32 years,
Occ. Agriculturist and Trade,
r/o. Jai Nagar,
Jalgaon
2. Shri Sapan Sushilkumar
Zunzunwala, Age : 32 years,
Occ. Agriculturist and Trade,
r/o. Jai Nagar,
Jalgaon ..Petitioners
Vs.
1. The State of Maharashtra,
Through it's Department,
Relating to Waqf
2. The Maharashtra State Board
of Waqfs, Pan Chakki,
Aurangabad,
Through Chief Executive Officer
3. The Chief Executive Officer,
The Maharashtra State Board of
Waqfs, Pan Chakki,
Aurangabad ..Respondents
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Mr.P.M.Shah, Senior Counsel i/b. Mr.S.P.Shah,
Advocate for Petitioner
Mr.S.K.Tambe, for respondent no.1
Mr.Qureshi S.A.G., Advocate for respondent no.2
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : SEPTEMBER 11, 2017
PRONOUNCED ON : OCTOBER 09, 2017
JUDGMENT (PER SANGITRAO S. PATIL, J.) :
Heard the learned Senior Counsel for the
petitioners, the learned A.G.P. for respondent no.1
and the learned Counsel for respondent nos.2 and 3.
2. Petitioner no.1 is a partnership firm, while
petitioner no.2 is its partner. Respondent no.2 is
the Maharashtra State Board of Waqfs ("the Board",
for short) and respondent no.3 is the Chief Executive
Officer of the said board.
3. The petitioners have challenged the legality
of the notice dated Nil, served by respondent no.3 on
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petitioner no.1 on 07.05.2007, whereby the
transaction dated 28.06.2006 in respect of exchange
of the lands between 'Dargah Hajrat Makka Shah Wali',
situate at Asarjan, Gadipura, Nanded ("Dargah", for
short) and petitioner no.1 has been called in
question, on the ground that the said transaction of
exchange was not sanctioned by two-thirds of the
Members of the Board, as required under Section 32(2)
(j) (as was existing prior to the amendment of 2013)
of the Waqf Act, 1995 ("the Act", for short) and as
such, it is illegal.
4. The learned Senior Counsel for the
petitioners submits that the irrigated lands
belonging to petitioner no.1 situate at villages
Borgaon, Tq.Hadgaon; Pimparanwadi, Tq.Loha; and
Kalambar, Tq.Loha, District Nanded, ad-measuring 26
H. 22 Are (65 acres) valued at Rs.59,67,000/- and in
addition to that cash amount of Rs.25,00,000/-, were
proposed to be given to the Dargah in exchange of the
dry land of the Dargah, bearing block No.120, ad-
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measuring 9 H. 6 R (22 acres) valued at
Rs.55,66,000/- situate at Asarjan, Tq. and Dist.
Nanded, which was the property of Waqf. The land of
the Dargah was unproductive, while the lands of
petitioner no.1 were irrigated. The Board considered
the utility of the lands of petitioner no.1 and with
a view to augment the income of the Dargah, resolved
to exchange the land of the Dargah in lieu of the
land of petitioner no.1. The said exchange
transaction was most advantageous for the Dargah.
Respondent no.3 published the proposal for exchange
of the lands in the Gazette dated 6 th October, 2015 of
the Government of Maharashtra, calling upon
objections from the public at large against the
proposed exchange transaction within 15 days from the
date of publication of the said proposal. No
objection was raised by anybody. Respondent no.3
then passed an order dated 26.06.2006 stating therein
as to how the proposed exchange transaction was
beneficial for the Dargah. He further stated therein
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that the requisite procedure for grant of sanction to
the proposed exchange transaction was followed.
Accordingly, he granted permission to execute the
said exchange transaction on the terms and conditions
mentioned in the order. Respondent no.3 referred to
the resolutions dated 26.08.2005, 30.11.2005 and
19.06.2006 passed by the Board giving sanction to the
proposed exchange transaction. It is specifically
mentioned that he passed the order dated 26.06.2006
in pursuance of the order dated 21.06.2006 passed by
respondent no.2. Respondent no.3 further issued a
letter to the District Waqf Officer, District Nanded
on 26.06.2006 informing him that the proposed
exchange transaction was sanctioned by the Board in
its meeting dated 19.06.2006 and directed him to
execute the deed of exchange on behalf of the Dargah.
He was further directed to exchange possession of the
lands subject matter of the said transaction and
report compliance. On the same day, respondent no.3
sent a letter to the Sub-Registrar, Nanded/Loha,
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Dist.Nanded informing that he had authorised the
District Waqf Officer, Nanded to execute the
exchange-deed in respect of the land of Dargah.
Accordingly, the District Waqf Officer, Nanded
appeared before the Joint Sub-Registrar, Class-II,
Nanded-1 and executed the exchange-deed on behalf of
the Dargah on 28.06.2006. Possession of the lands
subject-matter of the Exchange deed also was
exchanged.
5. The learned Senior Counsel submits that when
respondent no.3, who was a responsible Officer,
specifically mentioned in his correspondence that the
proposed exchange transaction in respect of the lands
of Dargah was duly sanctioned by the Board in its
meetings, there was no reason for petitioner no.1 to
have any suspicion about any irregularity in the
resolution passed by the Board. The petitioners had
no notice as to how the internal machinery of the
Board was handled by its Officers. Petitioner no.1 is
a bona fide transferee for value without notice of
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any infirmity or irregularity about the in-door
functions of the Board. Passing of the resolution by
two-thirds majority of the members of the Board was a
matter of internal administration of the Board.
Petitioner no.1 placed reliance on the correspondence
made and order passed by respondent no.3 while
entering into the exchange transaction.
6. According to the learned Senior Counsel,
there were in all nine members of the Board, out of
which one Shabana Aazmi, was appointed as a Member of
the Board because she was a Member of the Rajya-
Sabha. Her appointment was co-terminus with her
membership of Rajya-Sabha. She ceased to be a Member
of the Board with effect from 26.08.2003 on her
ceasing to be the Member of Rajya-sabha. In support
of this contention, the learned Senior Counsel relied
on the judgment in the case of Mohd. Firdoz Ahmed
s/o. Abdul Hai Vs. The Maharashtra State Board of
Wakfs, Aurangabad (Writ Petition No.1694 of 2016)
decided by Nagpur Bench of this Court on 20.06.2016,
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wherein it has been held that Explanation-II to the
provisions of Section 14(1) of the Act was inserted
only for the purpose of removal of doubts and it
would be clear that a Member of Parliament or a
Member of the State Legislative Assembly would be
deemed to have vacated the office of the Member of
Waqf Board from the date from which he ceases to be a
Member of Parliament or a Member of State Legislative
Assembly. The learned Senior Counsel further submits
that one Ibrahim Q. Izzuddin had ceased to be a
Member of the Board in pursuance of his resignation
with effect from 18.05.2005. Therefore, according
to him, there were only seven existing members of the
Board when the resolutions dated 26.08.2005 and
30.11.2005 were passed. Both these resolutions were
passed unanimously by five members including the
Chairman of respondent no.2 i.e. two-thirds of
majority of the members of the Board. He submits that
the said resolutions were ultimately implemented by
respondent no.3 by following the due procedure laid
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down in the Act and therefore, it cannot be said that
the exchange transaction was not duly sanctioned by
the Board.
7. The learned Senior Counsel for the
petitioners further submits that even if it is
assumed that there is some technical defect in
passing the resolutions by the Board while granting
sanction to the exchange transaction, the petitioners
acted in good faith and after taking reasonable care
to ascertain that respondent no.3 had obtained
express or implied sanction of the Board for the said
transfer, exchanged their valuable lands and paid
additional amount of Rs.25,00,000/- in consideration
of the land of the Dargah, and therefore, the said
exchange transaction would be saved under Section 41
of the Transfer of Property Act.
8. The learned Senior Counsel then submits that
after completion of the exchange transaction, there
has been material change in the circumstances. The
names of the parties have been mutated in the record
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of rights of the said lands. The said exchange-deed
has been acted upon. Petitioner no.1 has sold out 2
acres of land out of block No.120 to the members of
Kala family under a registered sale-deed. 41 Are of
land out of the said land has been acquired for
construction of Kavtha-Latur Road and since no
compensation was paid, the petitioners secured
directions from this Court by filing a Writ Petition,
for initiation of the land acquisition proceedings.
40 Are of land from the said land has been acquired
by Municipal Corporation, Nanded for construction of
a road. The petitioners challenged the said
acquisition proceedings upto the Hon'ble Supreme
Court and got the said acquisition proceedings
declared as lapsed. The acquisition proceedings have
been initiated afresh. 2 H 1 Are land from the said
land has been acquired by the Government for
administrative building and the petitioners are
pursuing the proceedings for enhancement of
compensation awarded in respect of that acquisition.
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One Gopinath Jadhav claimed title to block No.120 and
filed R.C.S. No.49/2010 as well as Writ Petition
No.3757 of 2009 which is being defended by the
petitioners. The petitioners were required to file
R.C.S. No.420/2009 against one Parashram and others,
to protect their possession over the land block
No.120. The petitioners spent about Rs.15,00,000/-
for laying a wire-fencing, constructing two sheds for
security guards, for digging a bore-well and for
taking electricity connection in the said land. The
petitioners spent about Rs.15,00,000/- towards salary
of the security guards and bills of the security
agency during last ten years. The petitioners paid
Rs.24,00,000/- towards betterment charges etc.
9. The learned Senior Counsel states that the
Dargah also started cultivating 63 acres of Bagayat
land received from petitioner no.1 in exchange and
is earning good income therefrom. He submits that in
view of the above-mentioned developments, now the
situation has become irreversible. If the exchange
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transaction is undone, grave prejudice and
irreparable loss would be caused to the petitioners.
All these questions, including that of the interests
created in favour of third parties, would be beyond
the scope of Section 52 of the Act. He submits that
whatever has been lawfully done by respondent nos.2
and 3 in approving and effecting the exchange
transaction, cannot be unsettled by their successors.
He submits that respondent nos.2 and 3 are estopped
from challenging legality of the said exchange
transaction.
10. The learned Senior Counsel submits that the
impugned notice and its Annexure make it clear that
the Board has already taken a decision that the
above-referred exchange transaction is invalid.
Therefore, the impugned notice cannot be said to be
merely a show-cause notice. Relying on the judgments
in the cases of Siemens Ltd. Vs. State of Maharashtra
and others, (2006)12 SCC 33 and Assistant
Commissioner (CT) LTU and anr. Vs. Amara Raja
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Batteries Limited, (2009)8 SCC 209, he submits that
when a notice is issued after already forming an
opinion by the Board that the exchange transaction is
invalid, the Writ Petition would be maintainable
against such notice communicating the decision
itself, though apparently it is in the nature of a
show-cause notice.
11. The learned Counsel for respondent nos.2 and
3, based on the contents of the reply dated
06.09.2007 and the additional reply dated 25.07.2016,
submits that the Writ Petition being pre-mature is
not maintainable. According to him, the impugned
notice is just a show-cause notice. Instead of
showing cause before respondent no.3, the petitioners
preferred this Writ Petition. It was open for the
petitioners to await until the orders are passed by
respondent no.3. He states that as per the provisions
of Section 32(2)(j) of the Act, the exchange
transaction in respect of the lands of the Dargah
should have been sanctioned by at least two-thirds of
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the members of the Board. The exchange transaction
subject matter of this Writ Petition has not got such
sanction. Therefore, it is illegal. He further
submits that the Government of Maharashtra had
appointed Enquiry Commission headed by Mr.A.T.A.K.
Shaikh to enquire into the illegalities committed by
the then Chief Executive Officer and the Chairman of
the Board in the matter of transfer of the lands of
the Dargah and the said Enquiry Commission, in its
report, held that the then Chief Executive Officer
abused and misused its powers for extraneous
considerations. The learned Counsel submits that no
resolution has been passed by respondent no.2 either
on 26.08.2005 or 30.11.2005 or 19.06.2006 giving
sanction to the transaction of exchange of lands
subject matter of this Writ Petition. The lands of
the Dargah have not been properly valued. The amount
of Rs.25,00,000/- was stated to be obtained from the
petitioners by way of donation in addition to the
lands proposed to be exchanged, however, the said
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amount has not been deposited by the petitioners in
the account of the Dargah. He submits that respondent
no.3 was quite competent to issue impugned notice in
order to take necessary action under Section 52 of
the Act against the petitioners. He submits that no
decision at all has been taken by respondent no.2
against the petitioners as yet. In case respondent
no.2 takes any adverse decision against the
petitioners, they would have an efficacious and
effective alternate remedy to challenge it before the
Waqf Tribunal. It is only after the decision of the
Waqf Tribunal, if it goes against them, they can
approach this Court by filing a Revision Application
under the proviso to sub-section (9) of Section 83 of
the Act. According to him, there are a number of
disputed facts which cannot be considered by this
Court. He contends that the petitioners cannot
directly approach this Court by filing a Writ
Petition under Article 226 of the Constitution of
India, by-passing the statutory remedy. He,
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therefore, prays that the Writ Petition may be
dismissed.
12. As per Clause (j), sub-section (2) of
Section 32 of the Act, as was prevailing prior to the
amendment of 2013, it was the function of the Board
to sanction any transfer of immovable property of a
Waqf by way of sale, gift, mortgage, exchange or
lease in accordance with the provisions of this Act,
provided that no such sanction shall be given unless
at least two-thirds of the members of the Board vote
in favour of such transaction. Sub-section (1) of
Section 51 of the Act states that notwithstanding
anything contained in the waqf deed, any gift, sale,
exchange or mortgage of any immovable property which
is waqf property, shall be void unless such gift,
sale, exchange or mortgage is effected with the prior
sanction of the Board.
13. As per sub-section (2) of Section 51 of the
Act, the Board may, after publishing in the Official
Gazette, the particulars relating to the transaction
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referred to in sub-section (1) and inviting any
objections and suggestions with respect thereto and
considering all objections and suggestions, if any,
that may be received by it from the concerned
Mutawalli or any person interested in the waqf,
accord sanction to such transaction if it is of
opinion that such transaction is -
(i) necessary or beneficial to the
waqf;
(ii) consistent with the objects of
the waqf;
(iii) the consideration thereof is
reasonable and adequate;
14. Here, it would be worthwhile to reproduce
the provisions of Section 52 of the Act, which read
as under :-
"52. Recovery of wakf property
transferred in contravention of section
51.-- (1) If the Board is satisfied,
after making any inquiry in such manner
as may be prescribed, that any
immovable property of a wakf entered as
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such in the register of wakf maintained
under section 36, has been transferred
without the previous sanction of the
Board in contravention of the
provisions of section 51, it may send a
requisition to the Collector within
whose jurisdiction the property is
situate to obtain and deliver
possession of the property to it.
(2) On receipt of a requisition under
sub-section (1), the Collector shall
pass an order directing the person in
possession of the property to deliver
the property to the Board within a
period of thirty days from the date of
the service of the order.
(3) Every order passed under sub-
section (2) shall be served--
(a) by giving or tendering the
order, or by sending it by post to
the person for whom it is intended;
or
(b) if such person cannot be found,
by affixing the order on some
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conspicuous part of his last known
place of abode or business, or by
giving or tendering the order to
some adult male member or servant
of his family or by causing it to
be affixed on some conspicuous part
of the property to which it
relates:
Provided that where the person on
whom the order is to be served is a
minor, service upon his guardian or
upon any adult male member or servant
of his family shall be deemed to be the
service upon the minor.
(4) Any person aggrieved by the order
of the Collector under sub-section (2)
may, within a period of thirty days
from the date of the service of the
order, prefer an appeal to the Tribunal
within whose jurisdiction the property
is situate and the decision of the
Tribunal on such appeal shall be final.
(5) Where an order passed under sub-
section (2) has not been complied with
and the time for appealing against such
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order has expired without an appeal
having been preferred or the appeal, if
any, preferred within that time has
been dismissed, the Collector shall
obtain possession of the property in
respect of which the order has been
made, using such force, if any, as may
be necessary for the purpose and
deliver it to the Board.
(6) In exercising his functions under
this section the Collector shall be
guided by such rules as may be provided
by regulations."
The procedure under Section 52 of the Act for
recovery of Waqf property which is found to have been
transferred in contravention of Section 51 of the Act
has been given in Rule 20 of the Maharashtra Waqf
Rules, 2003. After obtaining certified copies of the
documents of transfer from Sub-Registrar as provided
in sub-rule (2) of Rule 20, the Chief Executive
Officer of the Board has to verify the details of the
property with reference to the record obtained from
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the Sub-Registrar and proceed further to issue
notices to the transferor and the transferee in
Forms-AD and AD-1 respectively. The notice impugned
in this Writ Petition is the same which has been
issued by respondent no.3 to petitioner no.1 under
Rule 20(3) in Form AD-1. The annexure to the impugned
notice records some more details behind issuance of
notice by respondent no.3. There is mention in the
annexure that the transaction subject-matter of the
Writ Petition has been effected without getting
sanction of the Board supported by two-thirds of
the Members voting in favour of the said transaction.
Therefore, petitioner no.1 was called upon to explain
as to why action should not be taken to recover the
said property i.e. block no.120 under Section 52 of
the Act. Here, it would be necessary to reproduce the
prescribed "Form AD-1" in which the notice has to be
given to the transferee :-
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Form AD-1
[See rule 20(3)]
NOTICE TO TRANSFEREE/PURCHASER
Whereas the properties shown below in the
Schedule are Wakf properties registered under
section 36 and 37 of the Wakf Act, 1995.
Whereas it is now learnt/informed that you are
in possession of the Scheduled property of Wakf by
way of transfer/Gift/Sale/Mortgage/Exchange vide
document No............... dated ..............
Registered in office of Sub-Registrar ..............
Schedule
Sr. Sy.No./ Taluka/ Extent/ Boundaries
No. Property No./ Village/ Dimension
Khata No. Town
(1) (2) (3) (4) (5)
----------------------------------------------------
----------------------------------------------------
Whereas, it is now learnt after due
verification that the said transfer is in violation
of the Section 51 of the Wakf Act, 1995. Therefore,
you are called upon to explain as to why action
should not be taken to recover the said property
under section 52 of the Wakf Act, 1995 within seven
days from the date of receipt of this Notice,
failing which further action will be taken by the
Maharashtra State Board of Wakfs.
Chief Executive Officer,
The Maharashtra State Board of Wakfs
....
15. With the above background, it would be
necessary to appreciate the contention of the learned
Counsel for the parties about maintainability of the
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Writ Petition. It will be clear from the contents of
Form AD-1 of the notice, which was required to be
served on petitioner no.1 as per Rule 20(3), it was
necessary to be mentioned in the notice itself that
after due verification it was noticed that transfer
of the Waqf property is in violation of Section 51 of
the Waqf Act, 1995 and to call upon petitioner no.1
to explain as to why action should not be taken to
recover the said property under Section 52 of the Act
within seven days from the date of receipt of the
notice. The impugned notice has been issued by
respondent no.3 in conformity with the contents of
Form AD-1 of the notice. It cannot be said that
respondent no.3 issued it with premeditation and
after forming a firm opinion that the property i.e.
block no.120 subject-matter of the exchange
transaction would be recovered from petitioner no.1
without considering the contentions of petitioner
no.1. In the circumstances, the contention of the
learned Senior Counsel for the petitioners that
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respondent no.3 conveyed his final decision to treat
the exchange transaction as illegal and to recover
possession of the land block no.120 under the garb of
show-cause notice cannot be accepted.
16. When respondent no.3 was required to issue
notice in Form AD-1, the reply filed on behalf of
respondent no.3 referring the contents of that
notice, would not indicate that the decision has
already been taken to treat the exchange transaction
illegal and to recover possession of the land block
no.120 from the petitioners. If that be so, it was
necessary for the petitioners to appear before
respondent no.3 and show cause as to why the exchange
transaction in respect of land block no.120 should
not be treated as illegal and why possession of that
land should not be taken back by respondent no.3.
However, without exhausting that remedy, the
petitioners directly approached this Court by filing
Writ Petition under Article 226 of the Constitution
of India.
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17. The learned Senior Counsel for the
petitioners cited the judgment in the case of Siemens
Ltd. wherein a question under consideration was
whether the High Court in exercise of its
jurisdiction under Article 226 of the Constitution of
India would interfere with the demand directing
payment of cess subject-matter of the lis before the
Hon'ble the Supreme Court. The demand of cess was
made terming the same as a show-cause notice and the
appellant was directed to make payment of cess with
interest immediately in respect of the purported
supplies made to Navi Mumbai parties right from
01.06.1996. The Writ Petition filed by the appellant
before the High Court questioning the said purported
notice came to be dismissed with the following
observations :-
" Challenge is to a show-cause notice
issued by the Corporation demanding
certain payment of cess on the value of
goods imported from Aurangabad and
Daman. The petitioners may file their
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reply to the show-cause notice and
produce the relevant documents within
two weeks. In case the order is adverse
to the petitioner no recovery shall be
made for a period of four weeks from
the date of service of the order on the
petitioner."
In paragraph 9 of the judgment, it was ruled by the
Hon'ble the Supreme Court that when a notice is
issued with premeditation, a writ petition would be
maintainable. In such an event, even if the Court
directs the statutory authority to hear the matter
afresh, ordinarily such hearing would not yield any
fruitful purpose. It is evident in the instant case
that the respondent has clearly made up its mind. It
explicitly said so both in the counter-affidavit as
also in its purported show-cause notice. With these
observations, the Hon'ble Supreme Court held in
paragraph 11 of the judgment as under :-
11. A bare perusal of the order
impugned before the High Court as also
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the statements made before us in the
counter-affidavit filed by the
respondents, we are satisfied that the
statutory authority has already applied
its mind and has formed an opinion as
regards the liability or otherwise of
the appellant. If in passing the order
the respondent has already determined
the liability of the appellant and the
only question which remains for its
consideration is quantification
thereof, the same does not remain in
the realm of a show-cause notice. The
writ petition, in our opinion, was
maintainable. "
18. In the present case, as stated above, respondent
no.2 cannot be said to have taken any decision in
respect of the nature of transaction as well as
recovery of possession of the land block no.120 since
respondent no.3 reproduced the contents of Form AD-1
which, as per the provisions of Rule 20(3), were
required to be mentioned in the show-cause notice.
It was not possible for him to deviate from the
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contents of Form AD-1. Consequently, respondent no.3
cannot be said to have predetermined the issue and
the impugned notice cannot be said to have been
issued with premeditation.
19. In view of these distinguishing facts, the
judgment in the case of Siemens Ltd. (supra) would be
of no help to the petitioners to show that the Writ
Petition is maintainable against the impugned show-
cause notice.
20. The learned Senior Counsel then pressed into
service the judgment in the case of Assistant
Commissioner (CT) LTU and anr. Vs. Amara Raja
Batteries Limited, (2009)8 SCC 209 to substantiate
his contention that even if there is alternate
remedy, the Writ Petition would be maintainable. In
that case, the Government of Andhra Pradesh, in order
to encourage industrialisation in the entire State
had been evolving various schemes in terms whereof,
incentives were to be provided to entrepreneurs not
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only for the establishment of new units but also
expansion thereof. Such incentives were being granted
in various forms such as subsidy, deferment/tax
holiday, rebate in electricity charges, interest
subsidy, etc. For the said purpose, Government Orders
were being issued from time to time since 1989. In
terms of the Government Order dated 20.05.1996, the
respondents applied for and were granted eligibility
certificate on their project for expansion of their
factory, as a result whereof the benefit of deferment
on sales tax to the extent of 13.5% of the capital
investment made by them was conferred. The
respondents claimed benefit of deferment on sales tax
payable by them on their production in their expanded
units which were either rejected or restricted to a
lesser amount while passing the orders of assessment
by the Assessing Officers under the Andhra Pradesh
General Sales Tax Act, 1957. Some of the matters were
taken to Sales Tax Appellate Tribunal. Some of the
writ applications were filed questioning the order of
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assessment, without availing the remedies available
to the assessee under the Andhra Pradesh General
Sales Tax Act. The High Court opined that the
definition "base turnover" referred only to the
quantum of production and not the turnover thereof
and hence, the Tribunal's judgment to that effect was
held to be erroneous. Special Leave Petitions were
filed before the Hon'ble Supreme Court against the
judgment of the High Court. The learned Senior
Counsel appearing on behalf of the State of Andhra
Pradesh contended that the High Court should not have
entertained the petitions directly against the order
of assessment as the question as to whether the
entrepreneurs had fulfilled the conditions laid down
in the said GOMs or not were required to be
considered by the respective assessing authorities.
The Hon'ble Supreme Court repelled the contentions of
the learned Senior Counsel appearing for the State
holding that as the Tribunal had already expressed
its views in the matter, appeal to the appellate
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authority as also the Tribunal would have been an
idle formality and the contention of the learned
Senior Counsel appearing for the State that High
Court should not have entertained the writ
applications directly from the orders of assessment
was held to be not correct.
21. From the facts of the above cited case, it
is clear that in view of the opinion already
expressed by the Tribunal in the same set of
circumstances, the Hon'ble the Supreme Court held
that approaching the appellate authority or the
Tribunal would have been an idle formality and
therefore, the Writ Petitions filed directly before
the High Court were held to be maintainable.
22. In the present case, respondent no.3 has
simply issued a show-cause notice in the prescribed
proforma AD-1 as required under Rule 20(3). It is
still open for the petitioner to show cause
justifying the exchange transaction in respect of the
land block no.120. In case the petitioners satisfy
32 wp-4258-07
respondent no.2 that the exchange transaction was
legal, they would certainly be entitled to retain
possession of the land block no.120. Thus,
approaching respondent no.2 for showing cause
justifying the exchange transaction in respect of the
land block no.120 would not be an empty formality.
Respondent no.2 would certainly be under an
obligation to consider the reasons placed forth by
the petitioners before taking any decision. In the
circumstances, the above-cited judgment would not be
helpful to the petitioners to justify filing of this
Writ Petition directly. Moreover, the decision of
respondent no.2 would not be final one. As per sub-
section (4) of Section 52 of the Act, in case
respondent no.2 sends any requisition to the
Collector to obtain possession of the land block
no.120 and deliver it to respondent no.2 and if the
Collector passes an order directing the petitioners
to deliver the said lands to respondent no.2, the
petitioners may, within a period of 30 days from the
33 wp-4258-07
date of service of that order, prefer an appeal to
the Tribunal constituted under Section 83 of the Act.
23. Even if it is assumed that the decision of
the Tribunal goes against the petitioners, under the
proviso to sub-section (9) of Section 83 of the Act,
the petitioners would have an opportunity to
challenge the correctness, legality and propriety of
the judgment and order passed by the Tribunal by
filing a Revision Application before this court.
Thus, the petitioners have an effective and
efficacious remedy available to them to challenge the
orders passed against them before this Court. Under
the revisional powers, under the proviso to sub-
section (9) of Section 83 of the Act, the High Court
may reverse or modify the orders passed by the
Tribunal. It is well settled that when statute
provides appeal or effective alternative remedy like
Revision, the Writ Petition is ordinarily not
maintainable.
34 wp-4258-07
24. The learned Senior Counsel for the
petitioners submits that the present Writ Petition
has been admitted by this Court and Rule has been
issued in the year 2008 without reserving any right
in favour of the respondents to raise plea of non-
maintainability of the Writ Petition on account of
any alternative remedy, therefore, at the stage of
final hearing, the petitioners cannot be non-suited
merely on technical plea of availability of
alternative remedy. In support of this contention,
he relied on the decision in the case of Proctor and
Gamble India Ltd. Vs. Municipal Corporation of
Greater Bombay, 2004(1)Mh.L.J. 406. The point that
was under consideration in the said case was whether
the products like cough drops, cough tabs, cough
tablets, cough syrup and cough lozenge manufactured
by the petitioners can be subjected to levy of octroi
duty under the provisions of the Mumbai Municipal
Corporation Act, 1888. The demand of octroi was
challenged by the petitioners on the ground that the
35 wp-4258-07
point regarding non-liability of the petitioners to
pay octroi duty on such products has been decided by
this Court in the case of Proctor and Gamble India
Limited and anr. Vs. The Municipal Corporation of
Greater Bombay and ors., 1994(3) Bom.C.R. 403, which
judgment was subsequently confirmed by the Division
Bench of this Court in Appeal No.916 of 1993 in Writ
Petition No.3589 of 1983 decided on 09.08.1994 and
accordingly, the respondents were not entitled to
claim payment of octroi duty on the said products.
It was the contention of the petitioners that the
authorities arbitrarily sought to levy the octroi
duty on the said products though the said products
had already been classified as medicines by the
licensing authorities as well as the Central Excise
Authorities and considering the law laid down by this
Court, it was not permissible for the Corporation
while deciding the issue regarding the liability of
octroi duty to change such classification. It was
sought to be contended on behalf of the Corporation
36 wp-4258-07
that the orders of the authorities can be subjected
to appeal under Section 217 of the Act of 1988 and
therefore, there being alternative efficacious
remedy, the petitioners should not approach the High
Court in writ jurisdiction.
25. Since the dispute about classification of
the products subject matter of the Writ Petition was
already decided by this Court, it was held that the
contention of the Corporation regarding
classification of the products of the petitioner as
confectionery items cannot be sustained. In view of
the fact that the petitioners had a good case on
merits, the objection challenging tenability of Writ
Petition on account of alternative remedy was
rejected.
26. In the present case, considering the above
factual controversy between the parties, a number of
disputed questions would arise for determination.
It would be necessary to record evidence of the
37 wp-4258-07
parties in respect of those disputed facts in detail.
It is not that the present case is based on
some law point which is already decided or on
the facts which are not in dispute. The following
are some of the disputed facts which would be
required to be considered on the basis of the
evidence produced by the parties :-
(i) Whether the lands subject-matter of the
exchange transaction were duly valued ?
(ii) Whether the amount of Rs.25,00,000/- has
been paid by the petitioners to the
Waqf/Dargah ?
(iii) Whether the exchange transaction was
effected to safeguard the interests and
objectives of the waqf ?
(iv) Whether the exchange transaction is
unconscionable ?
38 wp-4258-07
(v) What was the exact number of the Members of
the Board at the relevant time ?
(vi) Whether there was a resolution passed by
two-thirds of the Members of the Board
giving sanction to the exchange transaction
of the land block no.120 ?
(vii) Whether petitioner no.1 being a transferee
of the land block no.120, acted in good
faith and took reasonable care to ascertain
that the then Chief Executive Officer had
obtained express or implied sanction of
the Board for effecting the exchange
transaction ?
(viii) Whether the petitioners are entitled to
claim benefit of Section 41 of the Transfer
of Property Act ?
(ix) Whether the then Chairman and the Chief
Executive Officer misused the powers vested
39 wp-4258-07
in them in effecting the exchange
transaction ?
(x) Whether the present Chairman and the Chief
Executive Officer of the Board would be
justified in challenging the exchange
transaction effected by their predecessors ?
(xi) Whether there has been material change in
the circumstances after effecting the
exchange transaction which has made the
situation irreversible? If yes, what
equitable reliefs could be granted in favour
of the parties concerned ?
27. The above-mentioned list of the disputed
facts is illustrative and not exhaustive. A number of
factual disputes may be required to be considered by
the authorities concerned while resolving the
controversy subject matter of this Writ Petition.
Such was not the position in the case of Proctor and
Gamble (Supra) cited on behalf of the petitioners.
40 wp-4258-07
The above-referred disputed facts cannot be decided
by the High Court in exercise of its jurisdiction
under Article 226 of the Constitution of India and
more particularly, when there is efficacious remedy
available to the petitioners under the provisions of
the Waqf Act. In the circumstances, even if the Writ
Petition was admitted and Rule was issued for final
hearing, we are of the view that the petitioners will
have to be relegated to exhaust the remedies
available to agitate their contentions justifying
the exchange transaction as per the provisions of the
Waqf Act.
28. The learned Senior Counsel for the
petitioners contends that the scope of Section 52 of
the Act is limited and it would be beyond the
jurisdiction of the Waqf Board or the Tribunal to
consider the questions in respect of creation of
third party interests in the land block no.120; the
subsequent change in the situation in the land block
no.120 as well as the lands given to Dargah in
41 wp-4258-07
exchange and the other co-related factual aspects and
therefore, this Court should entertain this Writ
Petition. We are not inclined to accept this
contention. As per sub-section (1) of Section 83 of
the Act, the State Government has constituted the
Tribunal for determination of any dispute, question
or other matter related to Waqf or Waqf property
under this Act. As per sub-section (5) of Section 83
of the Act, the Tribunal shall be deemed to be a
Civil Court and shall have the same powers as may be
exercised by a Civil Court under the Code of Civil
Procedure, 1908, while trying a suit, or executing a
decree or order. If that be so, it will be open for
the petitioners to approach the Tribunal
independently by filing a suit in respect of the
claims which, according to them, could not be
considered under Section 52 of the Act. Moreover, if
the Tribunal also cannot consider any dispute in view
of its limited jurisdiction to determine the issues,
the jurisdiction of the Civil Court could be invoked
42 wp-4258-07
by the petitioners as per Section 9 of the Code of
Civil Procedure.
29. The Hon'ble the Supreme Court has
consistently held that alternate remedy would not
operate as a bar in the following contingencies :-
(i) Where the Writ Petition has been filed
for enforcement of any fundamental
rights;
(ii) Where there has been violation of the
principles of natural justice;
(iii) Where the proceedings are wholly
without jurisdiction;
(iv) Where vires of the Act is challenged.
30. The facts of the present Writ Petition do
not attract any of the above-mentioned contingencies.
If that be so, in view of the effective and
efficacious remedy available to the petitioners, we
are not inclined to entertain this Writ Petition in
43 wp-4258-07
exercise of the powers under Article 226 of the
Constitution of India, though the Writ Petition has
reached the stage of final hearing.
31. For the reasons stated above, the Writ
Petition is liable to be dismissed being not
maintainable. The petitioners would be at liberty to
appear before respondent no.2 and show cause in
response to the impugned notice. The petitioners
further would be at liberty to approach the
appropriate forum for necessary reliefs as
permissible under the law. We make it clear that we
have not expressed any opinion on merits of the
matter. All the points are kept open for being
agitated before the appropriate forum.
32. In the result, we pass the following
order :-
The Writ Petition is dismissed.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]
44 wp-4258-07
33. After pronouncement of the judgment, the
learned Counsel appearing for the petitioners prays
that the interim relief may be continued for a period
of eight weeks so as to enable the petitioners to
challenge the judgment and order passed today. The
learned Counsel for respondent nos.1 and 2 opposes
this prayer.
34. Interim relief was granted by this Court and
that was continued as per the order dated 22.02.2008.
In this view of the matter, we think fit to continue
the interim relief for a period of six weeks from
today.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]
kbp
