"43. Wakfs registered before the
commencement of this Act deemed to be
registered.-- Notwithstanding anything
contained in this Chapter, where any waqf has
been registered before the commencement of
this Act, under any law for the time being in
force, it shall not be necessary to register the
waqf under the provisions of this Act and any
such registration made before such
commencement shall be deemed to be a
registration made under this Act."
5] Thus, what is provided under Section 43 is
that where any Waqf (and not the Trust) has been
registered before commencement of the said Act, under
any law for the time being in force (at the relevant time
the laws then prevailing were the Waqf Act, 1954, and
the Wakf (Amendment) Act, 1984), it shall not be
necessary to register the Waqf under the provisions of the
said Act, and any such registration (of Waqf) made before
such commencement shall be deemed to be registration
made under the said Act.
6] The Counsel for the petitioner submits that
'Sailani Shah Dargah' was never registered as 'Waqf'
under any law. What was registered is a Trust under the
Maharashtra Public Trusts Act, 1950 (for short "Act of
1950").
7] We have noticed that vide order dated
13/1/2015, while issuing Rule, Court passed following
order :
"1. Heard learned counsel appearing for the
respective the parties.
of 1986, which raises a question about nature
of activity, is already pending before this Court.
If that appeal is allowed the declaration that
activity constituted public Trust, may fall to
ground. Similarly, in other First Appeal No.207
of 1991 an order attaching personal property in
the present petition for causing loss to the
public Trust, is also questioned and that order
has been stayed.
3. It is also pointed out that Writ Petition No.
519 of 1987 is admitted for final hearing and it
is pending. However, respective learned counsel
for the parties are not in a position to specify
the exact nature of challenge therein.
4. It is not in dispute that affairs of Dargah viz.
Sailani Shah, Pimpalgaon Sarai, Tahsil and
District Buldhana, are presently being looked
after by an Adhoc body.
5. Shri S.P. Bhandarkar, learned counsel, and
Shri S.A. Chaudhari, learned counsel, represent
some of the Members on the said Ad hoc body.
6. Order impugned in this petition, is judgment
dated 27.12.2011, delivered by the learned
Presiding Officer, Maharashtra Wakf Tribunal,
Aurangabad, in Wakf Application No. 16 of
2004. The said Tribunal has considered the
application under Section 83(2) of the Waqf
Act, 1995 which challenged order dated
16.3.2002 passed by the Assistant Charity
Commissioner, Buldana on holding of Urs of
that Trust under Sections 41A and 41B of the
Bombay Public Trust Act. In the process, the
Tribunal has found that the activity of Sailani
Shah Dargah amounted to Waqf and after
noticing desire of Waqf Board to have a Scheme
to govern it observed that the Waqf Board itself
was competent to frame or modify the Scheme.
7. The Waqf Board thereafter has issued a
notice dated 13.3.2012 for framing Scheme
under Section 69 of the Waqf Act. This Court
has stayed the judgment and the notice.
8. Shri Bhangde, learned senior counsel, has
placed reliance upon the observations in
paragraph Nos.37 to 38 of the Judgment of the
Honourable Apex Court in the case of
Maharashtra State Board of Wakfs ..vs.. Yusuf
Bhai Chawala and ors. reported at (2012)6 SCC
328 to urge that the distinction noted therein in
Muslim Trust and the Waqf is lost sight by the
Tribunal. He further submits that the order of
the Tribunal is binding on the Board and the
appeal or revision against order under Section
69 of the Waqf Act passed by Board can be
preferred before the Tribunal. The said finding
on nature of activity is final insofar as the Board
is concerned. He further points out that, if the
dedication is found lacking in First Appeal
No.192 of 1986 and this Court records a
finding accordingly, it would imply that it is not
a public Trust. The provisions of the Waqf Act,
1995 may not be then attracted.
9. Shri Bhandarkar, Shri Mirza, and Shri
Chaudhari, learned counsel, dispute this. They
rely upon the provisions of Section 3(r) of the
Waqf Act to point out how widely Waqf has
been understood. Our attention is also invited
to the provisions of Section 43 of the Waqf Act
for the said purpose.
10. After hearing learned counsel for the
respective parties, we find that the controversy
involved in the old matters already pending
before this Court may be eclipsed by the
present consideration and hence all the matters
need to be decided together.
11. In fact, respective learned counsel for the
parties agree that all matters call for joint
decision. However, Shri Bhandarkar, learned
counsel, submits that if the present matter is
considered and decided, the controversy
involved in the old matters may be rendered
infructuous. Shri Bhangde, learned senior
counsel, disputes this.
12. We note that the affairs of the Sailani Shah
Dargah are currently being looked after by
Adhoc body.
13. In this situation, Rule.
Respective learned counsel for the respondents
waive notice of rule.
14. To be heard along with First Appeal No.
192 of 1986 and First Appeal No.207 1991 and
Writ Petition No.519 of 1987. The relevance of
Writ Petition No.519 of 1987 is kept open and
can be looked into as and when occasion
therefor arises.
15. Respondent No.2 - Board is permitted to
proceed further with proceedings for
ormulation of Scheme to regulate the affairs.
The petitioners are free to participate in that
exercise without prejudice to their rights and
contentions herein and in matters pending
before this Court.
16. However, Scheme, if framed, shall not be
given effect to till further orders of this Court in
the matter.
17. Registry to obtain suitable orders for joint
hearing of all these matters."
8] Thus, First Appeal No. 192/1986 was an
appeal, wherein, question of nature of activities was the
subject matter. The result of appeal has effect on the
present petition. When enquired, the Counsel for the
petitioner submits that the appeal was filed by the
petitioner and has been withdrawn on 17/3/2025.
9] That being so, the nature of activities, which
was the subject matter of appeal, has now attained
finality. The order challenged was passed by the
Additional District Judge, Buldhana, under Section 72 of
the Act of 1950, wherein, the Court held that 'Sailani
Shah Dargah' is a public Trust. Accordingly, the view
taken by the Joint Charity Commissioner that it is
necessary to frame scheme under Section 50(a) of the Act
of 1950, was upheld.
10] Thus, it appears that the status of 'Sailani
Shah Dargah' has attained finality. The finding of the
Joint Charity Commissioner that the Trust would require
scheme for proper administration has also attained
finality. The issue of nature of activities, however,
remained undecided.
11] The question, therefore, is what were the
nature of the activities, which were considered by the
Joint Charity Commissioner, while taking suo motu
cognizance of the issue to frame the scheme. The parties
shall go through it, and make submissions.
12] List on 16/4/2026.
(JUDGE) (JUDGE)
Sumit
Signed by: Mr. Sumit Agrawal
Designation: PS To Honourable Judge
Date: 18/03/2026 16:53:15
