Dudhadhari @[email protected] ... vs Uttam S/O. Nabhaji Mahale And Ors
2021 Latest Caselaw 14747 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION
            CIVIL REVISION APPLICATION NO.102 OF 2019
                                   WITH
                 INTERIM APPLICATION NO.2183 OF 2021


Linker Shelter Pvt. Ltd. through Director
Prasad Chandrakant Deshpande                     .. Applicant

        Versus

Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors.                             .. Respondents


                                 WITH
                    CIVIL APPLICATION NO.40 OF 2019

Narendra Ramnath Ugale & Anr.                    .. Applicants

        Versus

Linker Shelter Pvt. Ltd. through Director
Prasad Chandrakant Deshpande                     .. Respondents

                                    AND

     CIVIL REVISION APPLICATION (ST) NO.25385 OF 2019

Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors.                             .. Applicants

        Versus

Uttam s/o Nabhaji Mahale & Ors.                  .. Respondents




M.M.Salgaonkar




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                            WITH
           INTERIM APPLICATION (ST) NO.93681 OF 2020

Yogita Sundar Kokate                               .. Applicant

                 Versus

Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors.                             .. Respondents
                             ...

Mr.Girish Godbole with Mr.Sagheer A. Khan, G.D.Shaikh, Akif
Patel and Maaz Sayed i/b Judicare Law Associates for the
Applicant in CRA/102/19 and for Respondent No.7 in
CRAST/25385/19.
Mr.Parth Zaveri i/b Mr.Akhlaque M.S.Solkar for Respondent
Nos.8 to 13 in CRA/102/19 and for Respondent Nos.1 to 6 in
CRAST/25385/19.
Ms.Madhavi Ayyapan with Ms.Ayesha Keshodwala i/b Talekar
& Associates for the Applicant in CRAST/25385/19.
Mr.Tejesh Dande with Mr.Pradip Shingte, Mr.Bharat Gadhavi,
Mr.Aniket Aghade for the Intervenor in IAST/93681/20.
Mr.N.N.Gawade i/b M/S Sanjay Udeshi & Co. for the Applicant
in CA/40/19.
Mr.R.M.Momin for Respondent Nos.6 and 7 in CRA/102/19 and
for Respondent Nos.8 and 9 in CRAST/25385/19.
                                        ...

                          CORAM: BHARATI DANGRE, J.

DATED : 08th OCTOBER, 2021

JUDGMENT:-

1. The two Civil Revision Applications were placed for

expeditious hearing in terms of the order passed by the

learned Single Judge of this Court (Coram : S.C.Gupte, J.) on

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24/09/2019. In furtherance of the said order, these two

applications are heard fnally, by the consent of parties.

2. Civil Revision Application No.102 of 2019 is fled by the

Applicant challenging the judgment delivered by the

Maharashtra State Waqf Tribunal at Aurangabd (hereinafter

referred to as "the Tribunal") in Waqf Appeal No.01 of 2016,

which is instituted by Respondent Nos.1 to 5. By the said

judgment dated 16/10/2018, the Tribunal has allowed the

Appeal and has set aside the order dated 04/02/2016 passed

by the Chief Executive Offcer (C.E.O.) of the Maharashtra

State Board of Waqf, Aurangabad and the matter is remanded

back to the Board for deciding afresh, after affording an

opportunity to both the parties. The Board is directed to

expedite the matter and decide the same within a period of six

months.

As far as Civil Revision Application (St) No.25385 is

concerned, it is instituted by the Wakf and its trustees. The

relief prayed therein is to set aside the judgment and order

dated 31/08/2019, passed by the Tribunal in Wakf Application

No.34 of 2019 and to restrain the Respondents from

transferring the possession of tenements on Wakf property till

four weeks after disposal of Wakf Application under Section 40

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of the Waqf Act, pending before the Maharashtra State Board

of Wakfs. A relief is sought to continue the protection granted

by the Hon'ble Supreme Court thereby setting aside the

transfer of tenements on wakf property.

3. Heard the learned counsel appearing for the respective

parties.

4. The dispute in the two Applications revolves around the

land bearing Survey Nos.980 and 981 situated at Morwadi,

Nasik. The parties can be introduced in the following

manner :-

(a) Linker Shelter Pvt. Ltd., a company registered under the

Companies Act is a Developer, who has a development

agreement with the original owners; Respondent Nos.8 to 13,

are the members of Mahale family. Respondent No.1 is a Waqf

viz. Dudadhari @ Kathada @ Kagzipura Masjid Trust whereas

Respondent Nos.2 to 5 are Mutawallis of Respondent No.1.

5. Respondent Nos.2 to 5 set a claim qua the subject matter

of the land described above and alleged that the aforesaid land

is the waqf property whereas Respondent Nos.8 to 13

canvassed that they they are the owners of the said land on

the basis of their claim, that their predecessors-in-title were

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the cultivators of the said land and they had purchased the

said land as per the scheme under the Bombay Tenancy and

Agricultural Land Act, 1948 (for short, "the BTAL Act"). It is

alleged that they had also obtained the certifcate under

Section 32M of the BTAL Act. The discord between the parties

was referred to the Waqf Board and these two Civil Revision

Applications are the offshoot of the said reference.

6. Learned Counsel Mr.Godbole appearing for the Applicant

in Civil Revision Application No.102 of 2019 has placed before

me an exhaustive list of dates and events, which relate back to

the year 1923 when a claim is staked by the Respondents,

Trust that the property, which is the subject matter of the

Applications, was given to the Trust in Inaam for maintaining

the Masjid from the incomes derived there from. As against

this, event in the year 1945 is stated to be of great

consequence since at the relevant time, the forefathers of

Respondent Nos.8 to 13 were cultivating the said property and

on 10/03/1962, the Tenancy Tribunal, passed an order under

Section 32-G of the BTAL Act, fxing the purchase price of the

property and on 16/10/1967, upon payment of installments, a

certifcate under Section 32-M of the BTAL Act was issued

and was registered as per the provisions of the Registration

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Act, 1908.

The initiating point for the discord is described as the

event dated 05/02/1983, when the trustees of Respondent

No.1 fled an application under Section 18 of the Bombay

Public Trust Act, 1950 for its registration, but did not include

the said property as its properties in the application.

Pertinent to note that since the Waqf Act, 1954 was not

applicable to the State of Maharashtra except Marathwada

Region, the application was preferred under the BPT Act,

1950. Another milestone in the dispute was attained when the

Respondent/Trust fled an application under Section 36 of the

Waqf Act, 1995, on the commencement of the Waqf Act

throughout the State of Maharashtra and registration of the

subject property, as a property of Waqf was sought. The

registration was granted on 04/08/2008.

7. This event led to the respective parties to institute the

proceedings and the initiation was by the owners of the

property, who challenged the order of registration before the

Tribunal, who set aside the registration on 04/02/2016. The

Trust challenged the order by fling Waqf Appeal No.01 of 2016

where the impugned judgment came to be delivered on

16/10/2018. During this interregnum, the parties approached

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the highest Court of the land. The orders came to be passed

restraining the Applicant/Developer and the owners from

allowing handing over possession to the fat purchasers. This

order came to be modifed at some later point of time and was

made subject to the outcome of the Waqf Appeal. However, I

need not be detained by the niceties of the interim orders,

which were granted, modifed and again reinforced by

subsequent orders and I deem it expedient to go to the core

issue, which arises for determination in Civil Revision

Application No.102 of 2019.

In my endeavour to fnd out the bone of contention

between the parties in assailing the judgment dated

16/10/2018 passed in Waqf Appeal No.01 of 2016, I am assisted

by the learned counsel Mr.Godbole and Ms.Ayyapan.

8. The exhaustive judgment of the Tribunal, which runs

into 43 pages and 57 paragraphs, when carefully perused,

would divulge that the Tribunal has traced the history of

litigation, but from paragraph 44 onwards, the main issue is

dealt with and which is about the jurisdiction of the C.E.O. and

the power in passing the impugned order dated 04/02/2016 by

which the registration of the subject land as waqf property has

been set aside. The Appellant had questioned the exercise of

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power under Section 40 of the Waqf Act, 1995 by the C.E.O.

and this formed the fulcrum of the Appeal instituted by them.

9. It would be necessary to make a brief reference to the

said provision contained in the Waqf Act, which provide for the

better administration of waqf. By Section 40, the Board

constituted under Chapter IV of the Act, is empowered to

collect information regarding any property, which it has

reason to believe to be a waqf property and to determine the

question whether a particular property is waqf property or not

and whether a waqf is a Sunni waqf or a Shia waqf and for the

said purpose, it is empowered to make such inquiry as it deem

ft and decide the question. By virtue of sub-section, the

decision of the Board on a question whether the property is a

waqf property shall be fnal unless revoked or modifed by the

Section 27 permit the Board, by a general or special order in

writing, to delegate such of its power and duties under the Act

as it deem necessary to the Chairperson or to the other

member, the Chief Executive Offcer or any other offcer or

servant of the Board, subject to the conditions and limitation

as may be specifed in the said order. Certain exceptions are

carved out by the Section itself where the power cannot be

delegated.

M.M.Salgaonkar





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10. The impugned order dated 04/02/2016 is passed by the

C.E.O. of the Waqf Board, in exercise of delegation of power

fowing from the Board itself. The controversy involved in the

Civil Revision Applications can be concised and formulated, by

searching it in the order of the Tribunal and the limited

controversy is; whether the C.E.O. was delegated the powers to

deal with the application fled under Section 40 of the Act and

whether there was resolution of the Board delegating such a

power.

11. During the course of hearing of appeal before the

Tribunal, the Appellant/Trust tendered a list of documents,

which was exhibited as Exhibit 23 and which includes,

following three documents;

        (1)      Copy of Sanad of the year 1853;

        (2)      Resolution dated 13/07/2013;

        (3)      Resolution dated 19/12/2013

The confict is about the document at Sr.No.3; being Resolution

dated 19/12/2013. The said document came to be exhibited as

'Exh.A-12' and the said document was placed before the

Tribunal and is enlisted at page 250 of the paper-book of the

present Civil Revision Applications. The said document is in

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form of Minutes of the Board Meeting dated 19/12/2013 held

at Regional Wakf Offce, Haj House, Nagpur and is passed in the

presence of 7 members, completing the coram. On Point No.7,

the following resolution is passed.

"Establishment Section

Point No.7. Delegation of powers to the Chief Executive

Offcer, Member, Servants under section 27 of the Wakf

Act, 1995.

Resolution No. 110/2013 :- It is unanimously resolved to

delegate the powers of the Board as prescribed in

section 36, 37, 40, 41, 42, 43 and 70 to Chief Executive

Offcer for smooth functioning of the business of the

Board."

The resolution is signed by the President/Chairman of the

Maharashtra State Board of Wakfs and the fve members as

well as by the C.E.O. of the Board. It is apparent that the said

document was before the Tribunal and it was imperative for

the Tribunal to have referred the same. Instead, the Tribunal

proceed to record as under :-

"50. Here, it is disclosed that by the resolution

dtd.19.12.2013 the Board has delegated the powers to

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the C.E.O. of the Board for deciding the application

under Section 40 of the Act and by virtue of the said

powers the C.E.O. has passed the order. However, there

is no such reference of delegation of powers in the

impugned order and even the order does not speak any

such power of the Board were delegated to him for

deciding the application under Section 40 of the Act.

Not only this but the record and proceeding called from

the Board also does not have any copy of the order in

written made by the Board or the resolution of the

Board under which the powers were delegated to the

C.E.O."

12. The Respondent had placed reliance upon a letter of the

State Government dated 16/10/2015, which is in a form of

clarifcation addressed to the C.E.O. of the Board, when the

guidance is sought by the C.E.O. about the powers to be

exercised. The Government clarifed that by virtue of

resolution No.7 in the meeting dated 19/12/2013, the C.E.O.

has been delegated the powers under Sections 36, 37, 40, 41,

42, 43 and 70 of the Act alongwith Sections 69(5), 52A(3). As

per resolution No.12, the guidance is provided that in exercise

of the said powers, which are delegated, the C.E.O. shall

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discharge the day-to-day functioning of the Board and if at all

some more delegation is required, a meeting of the Waqf Board

can be called for and the resolution can be passed. The said

letter of the Government dated 16/10/2015 fnds place at page

No.248 of the paper-book.

13. As far as the said letter is concerned, the Tribunal

concluded that this is not a authority letter, which would

empower the C.E.O. to decide the application under Section

40(1) of the Act and even the State Government is not

empowered by law to delegate the powers, which are vested

with the Board, as Section 27 of the Act makes it clear that

only the Board can delegate the powers to the C.E.O. or

chairperson as contemplated under the said provision. Here,

the Tribunal is right, as the said letter of the Government does

not delegate the power because the delegation under Section

27 must come from the Board itself. After recording this, in

paragraph 23 of the impugned judgment, the Tribunal

observed as under :-

"53. Even the resolution of the Board

dtd.19.12.2013 which is referred in the said letter is

not produced on record. The surprising thing that, the

Board is party but no any attempt is also made from

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the Board to substantiate their contention to produce

the said resolution of the Board by which the powers

are delegated to the C.E.O.. In short, there is no any

document on record to show that the C.E.O. was

delegated the powers of the Board to decide the

application under Section 40(1) of the Act of

petitioner."

14. The said observation of the Tribunal is clamped as

perverse, as it has failed to take into consideration the

resolution of the Board dtd.19/12/2013, which was placed

before the Tribunal by the Appellants themselves. I agree with

the said submission. The said fnding is undoubtedly perverse

as the Tribunal has recorded that, since the order of C.E.O.

does not speak of any such resolution, nor the Government

communication dated 16/10/2015 grants delegation in favour

of the C.E.O. and thirdly, the resolution of the Board itself is not

produced. This observation is in utter contrast to the factum

of production of resolution before the Tribunal by the

Appellants themselves vide Exhibit 23. Now, the Tribunal has

travelled further and made the following observations in

paragraph 56,

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"56. Since, the order of the C.E.O. is without

jurisdiction and hence the application under Section 40

of the Act is to be decided by the authority having a

competent jurisdiction, particularly by the Board as per

the directions of the Hon'ble High Court and hence it is

just to remand the matter with direction to decide it as

a fresh by the Board."

15. True it is, that this Court directed the Board to decide the

application under Section 40(1), but when the power of the

Board is delegated to the C.E.O., necessarily the Board is

denuded of its power to decide the application and the decision

of the C.E.O., in exercise of the power delegated to it, cannot be

said to be without jurisdiction. The Tribunal has completely

omitted the relevant document, being a resolution dated

19/12/2013, which clearly delegate the power of the Board to

the C.E.O. and this delegation is qua the several powers under

the Act, which include the power under Section 40 to conduct

an inquiry.

16. Learned counsel appearing for the Respondents makes a

futile attempt to justify the order by relying upon the

application for production of documents, which came to be

exhibited as Exhibit 36. On 18/04/2016, certain documents

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were sought to be produced on record of the Tribunal, which

include some old revenue records and pre-independent era

documents received from the Archives Department and also

the letters written by the members of the Wakf Board,

objecting to the delegation of powers to the C.E.O. of the Board.

Alongwith the said application what is annexed is, a letter

signed by the three members of the Maharashtra State Wakf

Board and the subject mentioned is "withdrawal of the board's

power delegated to CEO".

A careful reading of the said letter, at the most is

indicative of a proposed resolution to be put up before the

Board for withdrawal of power from the C.E.O., but this surely

is not a resolution passed by the Board. It can be very well

said that if the power has been conferred upon the C.E.O. by a

resolution, it shall be withdrawn in a like manner i.e. it could

have been withdrawn only by the Board by passing the

resolution. A letter being addressed by the three members to

the C.E.O., in no case would amount to withdrawal of powers

conferred by a resolution passed by the Board on 19/12/2013.

In any case, the Appellant never relied upon this document

while the Tribunal dealt with the point of delegation of power

to the C.E.O. by resolution of the Board dted 19/12/2013. This

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is probably for the reason that the counsel for the Appellants

was conscious that this letter dated 21/08/2014 does not

amount to withdrawal of delegation.

17. Learned counsel of the Respondents has vehemently

argued that the delegation itself is improper and there cannot

be a blanket delegation in light of Section 27 of the Waqf Act

and she placed reliance upon a decision of this Court in case of

Shaikh Saleemuddin s/o Shaikh Ameenuddin & Ors. Vs. Baba

s/o Manna Quereshi & Anr.,1. When the said decision is

perused, it can be seen that the issue before the learned Single

Judge of this Court was revolving around framing of a scheme

under Section 32 of the Act, which in fact was a scheme under

Section 69, and the argument was, the Chief Executive Offcer

had no powers to frame such a scheme. This judgment does

not assist the parties in any way.

When Section 27 of the Act makes it clear that the Board

can delegate its powers and duties under the Act to any person

mentioned in the said provision and when the Board has

chosen to exercise its power, being delegated to the C.E.O. to

determine the question whether the subject property is waqf

property and the C.E.O. accordingly has passed an order in

1 2015(3)Mh.L.J. 681

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exercise of his delegated power and, when the delegation by

the resolution is never called in question, I do not see any

reason to doubt the correctness of the delegation by the

resolution.

18. The aforesaid would clearly lead to an irresistible

conclusion that the Tribunal has failed to consider the

resolution dated 19/12/2013, which forms the core of the

appeal, although it was placed before it by the Appellants

themselves. The short point on which the impugned judgment

deserves to be set aside is this. Resultantly, the decision of the

Tribunal remanding the appeal back to the Board for taking a

decision on an application preferred under Section 40 of the

Waqf Act, therefore, cannot be sustained as it suffers from

perversity.

19. Upon such a conclusion being arrived, learned counsel

appearing for the Applicants, Respondents as well as the

Intervenors are at consensus that the Tribunal shall decide the

appeal on its merits as it has passed the order on a technical

ground, being the alleged resolution delegating the powers to

the C.E.O. is not on record. Now, since it is noticed that the

very said document i.e. Resolution dated 19/12/2013 was

before the Tribunal, it cannot discard its responsibility to

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decide the appeal on merits, where the order passed by the

C.E.O. is questioned, which it has refused to do on a technical

ground, that the resolution which was said to be the basis of

the power of the C.E.O.. Hence, the Tribunal shall decide the

appeal fled by the Appellants on its own merits. The parties

are also consenting to an order that the appeal pending before

the Tribunal shall be decided within a period of four weeks

from today and both the sides to the appeal shall render their

co-operation to the Tribunal in concluding the appeal within

the stipulated period.

20. As far as the position about the fats being allowed to be

transferred or not to be transferred is concerned, my attention

was invited to a factual position to the effect that 634 fats

have been constructed by the petitioner No.1 on the subject

property and out of which, 491 fats have been handed over to

the purchasers, but the remaining could not be handed over on

account of the orders being at variance from time to time. In

any case, learned counsel Mr. Godbole appearing for the

Applicant concede to the fact that there shall be no more

confusion at their end and the stage at which the party stands

as on today, shall continue till fnal decision by the Tribunal in

Appeal No.01 of 2016 and since, the Tribunal is now directed to

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decide the appeal within a period of four weeks, status-quo as

on today shall be maintained by the parties till its culmination

after four weeks.

21. Civil Revision Application (St) No.25385 of 2019 pose a

challenge to the order dated 31/08/2019 passed by the Wakf

Tribunal in Wakf Application No.34 of 2019. It is pertinent to

note that by the said order, the Tribunal has quashed and set

aside the order dated 18/02/2019 and order dated 02/03/2019

passed by the Wakf Board, by which it had directed

continuation of the status-quo order granted by this Court till

passing of further orders. In any case, the said orders were in

nature of interim orders and on 31/08/2019, the Tribunal had

made an order to the effect that if any transaction is made by

the contesting Respondent with any purchasers for selling of

fat, it shall be subject to the decision of the application fled by

the Trust under Section 40(1) of the Wakf Act. Since the

Application under Section 40(1) preferred by the Trust will be

adjudicated upon by the Tribunal within a period of four

weeks, no orders are necessary on the aforesaid Civil Revision

Application, which stands disposed of.

22. Civil Revision Application No.102 of 2019 is allowed in

the aforesaid term and the impugned judgment of the Waqf

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Tribunal in Appeal No.01 of 2016 is set aside. The Tribunal

shall adjudicate the Appeal on its own merits, uninfuenced by

any observations, touching the merits of the matter.

23. In view of the disposal of the Civil Revision Applications,

the Interim Applications do not survive and are disposed of.

( SMT. BHARATI DANGRE, J.)

M.M.Salgaonkar