Bombay High Court
The Gram Panchayat, Through It S ... vs Maharashtra State Board Of Wakf, ... on 11 January, 2018
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICTION NO.156 OF 2017
The Gram Panchayat,
through its Gram Sevak,
Dadh (Bk), Tq. Rahata,
District Ahmednagar. Applicants
Versus
01 Maharashtra State Board of Wakf,
through its Chief Executive Officer,
At Panchakki, Aurangabad.
Adan Madan Baba (R.A.)
Dargah and Muslim Kabrastan,
through its Trustees.
02 Inamdar Mohammed Babulal,
age: 46 years, Occ: Agril.;
03 Inamdar Aziz Ali Mohammed,
age: 48 years, Occ: Agril.,
04 Inamdar Raj Masoom,
age: 43 years, Occ: Agri.,
05 Inamdar Babulal Umer,
age: 43 years, Occ: Agril.,
06 Inamdar Sadik Ali Charakuddin,
age: 48 years, Occ: Agril;
07 Inamdar Salauddin Karmat Ali,
age: 41 years, Occ: Agril.,
08 Inamdar Abu Mastan,
age: 38 years, Occ: Agril.,
09 Inamdar Sultan Umar,
age: 49 years, Occ: Agril.,
10 Inamdar Alam Gulab,
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age: 48 years, Occ: Agril.,
11 Shaikh Haroon Usman,
age: 49 years, Occ: Agril.,
12 Pathan Shabbir Hussain,
age: 55 years, Occ: Agril.,
Respondents No.2 to 12 all
R/o Dadh (Bk), Tq.Rahata,
District Ahmednagar.
13 Taluka Inspector,
Land Records, Rahata,
Tq.Rahata, District Ahmednagar. Respondents
Mr.V.D.Hon, Senior Counsel i/by Mr.A.D.Shinde, advocate for the
applicant.
Mr.Y.B.Pathan, advocate for Respondents No.2 to 12.
CORAM : M.S.SONAK, J.
DATE : 11th January, 2018.
ORAL JUDGMENT :
1 Heard Mr.V.D.Hon, learned Senior Counsel i/by
Mr.A.D.Shinde, advocate for the applicant and Mr.Y.B.Pathan,
advocate for Respondents No.2 to 12. Considering the order, which
is proposed to be made, appearance of respondents no.1 and 13 is
not necessary. Therefore, service upon said two respondents is
dispensed with.
2 Rule. Rule made returnable forthwith and heard
finally by consent of learned Counsel for respective parties.
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3 The challenge, in this Revision Application taken out
under Section 83(9) of the Wakf Act, 1995, is to the order dated
14.02.2017, by which, the Wakf Tribunal has allowed the
application made by respondents for appointment of Court
Commissioner.
4 Mr.V.D.Hon, learned Senior Counsel for the applicant,
submits that the impugned order was made without affording an
opportunity of hearing to the applicant. He points out that the
pursis filed by the learned Counsel for respondents on 28.11.2016
merely stated that the advocate appearing for the applicant had
been intimated about the application for appointment of Court
Commissioner personally when he met the said advocate at the
Typing Centre. Mr.Hon submits that such kind of service hardly
amounts to effective service, particularly, since, the applicant is a
Gram Panchayat. Mr.Hon submits that there is nothing on record
to indicate that even copy of the application seeking appointment
of Court Commissioner was properly served upon the Panchayat.
He further submits that since the impugned order is made in
violation of principles of natural justice, the same may be set aside.
He also offered to make submissions on merits. However, since,
the issue of natural justice is involved, Mr.Y.B.Pathan, advocate
was requested to make submissions on the said issue itself.
5 Mr.Pathan, learned Counsel for respondents no.2 to
12, referred to me to the Roznama on record to point out that
applicant and its advocate were, throughout, irregular in attending
the proceedings before the Tribunal. He points out that already
orders are made to proceed in the matter without Say of the
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applicant-Gram Panchayat. He submits that necessary intimation
was given to the advocate for the Panchayat. He submits that if all
these aspects are cumulatively considered, it cannot be said that
there is any breach in compliance of the principles of natural
justice.
6 Upon perusal of the record, in particular, reply filed by
the respondents as well as Roznama appended to the pursis filed
by the advocate for respondents, though, there is some substance
in the contentions raised by Mr.Pathan, this is a fit case where an
opportunity is required to be afforded to the applicant to contest
the application for appointment of Court Commissioner. This is
not either to disbelieve or discredit the pursis filed by learned
Counsel for respondents on 28.11.2016, however, such oral
intimation, by itself, cannot be regarded as sufficient, as urged by
Mr.Hon, learned Senior Counsel for the applicant, particularly,
because, the applicant is a Panchayat and the Panchayat has to
deal through its officers or elected representatives. Therefore,
without going into much details as to where the fault lies, interest
of justice will be met if the impugned order dated 14.02.2017, is set
aside and the Tribunal is directed to re-consider and re-decide
respondents' application dated 07.09.2016 (Exhibit-28), seeking
appointment of Court Commissioner.
7 Mr.Hon, learned Senior Counsel for the applicant
states that the applicant would file reply to the said application
within a period of three weeks from today by serving an advance
copy to the learned Counsel for respondents. In case respondents
wish to file rejoinder, they can do so within a period of one week
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from today. The Tribunal is directed to dispose of the application
on its own merits and in accordance with law within a period of
maximum eight weeks from today.
8 The impugned order dated 14.02.2017 is, therefore, set
aside and the matter is remanded for fresh decision, as per
aforesaid directions. Consequently, the order dated 25.07.2017 is
also set aside.
9 The applicant is directed to pay costs of Rs.2500/-
(Rs.Two Thousand Five Hundred) to the respondents within a
period of three weeks from today, along with reply to the
application at Exhibit-28. If no costs are accompanied along with
such reply, the reply shall not be taken on record, since, this
Revision shall be deemed to have been dismissed and the
impugned order shall be deemed to have been confirmed. In case
there is some difficulty in payment of costs directly to the
respondents or their advocate, the applicant is at liberty to deposit
the costs before the Wakf Tribunal.
10 Rule is made absolute to the aforesaid extent.
M.S.SONAK
JUDGE
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