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2014 Supreme(Bom) 911
In the High Court of Bombay at Aurangabad
T.V. NALAWADE, J.
Javed Ahmed Khatib & Others
Versus
Mohammed Arif Shafeeq Ahmed Patel & Others
Civil Revision Application Nos. 66 of 2012, 84 of 2009, 85 of 2009 With Civil Application Nos. 1824 of 2009, 3927 of 2012 With Writ Petition No. 627 of 2009
Decided on : 15-04-2014
For the Petitioners:V.J. Dixit, Senior Counsel i/b. A.N. Nagargoje, Advocate.
For the Respondents:R1, R.R. Mantri h/f. Mujtaba Gulam Mustafa, R4, M.B.W. Khan, A.D. Kasliwal, Advocates.
Headnote:Wakf Act, 1995 - Section 3 - Term Mutawalli. - Since Managing Committee like Trust/Body falls within definition of term ’Mutawalli’ hence office bearers like Chief Trustee to be treated as mutawalli. - It was also necessary to file the affidavits of the concerned. No such record is available with the petitioners. There are few documents like copy of minutes of meeting of General Body. These documents show that minutes were signed on 17.5.2008. The minutes show that five ad-hoc committee members were elected and it was decided to constitute the new Board of trustees on or before 31.5.2008. These minutes do not show that new Body was elected. Copy of report given under Section 42 of the Waqf Act shows that the change report was submitted on 20.5.2008 and it was informed that in General Body of 17.5.2008 new Body was elected unanimously. The report submitted is not consistent with the aforesaid minutes and it is also not consistent with the aforesaid clauses of the scheme.
From the aforesaid clauses of the scheme, it can be said that it was not possible for the petitioners to make out prima facie case. The aforesaid clauses and the defence taken by respondent No. 1-Mohammad Arif show that prima facie case was in favour of the body registered in the year 2004. On the basis of record and the submissions, observations need to be made that it was an attempt of petitioners to take over the management illegally. Due to this reason, relief could not have been granted to the present petitioners and it could not have been refused to the Body registered in the year 2004. Thus, on the basis of the record and the scheme, there appears no reason to interfere in the orders made by the Tribunal in the suits on Exh.5.
This Court has already made some observations with regard to the procedure which needs to be followed for the election of the Board of trustees. Unless such procedure was followed, there was no question of change in the Board of trustees. Thus, the proposition made in the first case cited supra of Chembur Trombay Education Society is of no help to the petitioners in the present case.
1. CRA Nos. 66/2012, 84/2014 and 85/2012 are admitted. Notice made returnable forthwith. Both the sides agreed to argue the matters for final disposal. Writ Petition No. 625/2009 is already admitted. Heard all the sides.
2. The dispute is in respect of management of Jumma Masjid, Patel Mohalla, Panvel, Tahsil Panvel, District Raigad. This institution is registered under Bombay Public Trust Act [hereinafter referred to as 'the Trust Act' for short] and at present also registered under Waqf Act 1995. In the office of learned Assistant Charity Commissioner, Raigad the institution is registered along with the scheme of management. Waqf Suit No. 20/2009 was filed by petitioner from CRA No. 84/2009. At Exh. 5 application for relief of temporary injunction was filed. This application is rejected by Waqf Tribunal by order dated 15.6.2009 and this order is challenged in the revision. The petitioner from CRA No. 84/2009 has filed remaining two revisions also. CRA No. 85/2009 is filed to challenge the order made on Exh. 5, the temporary injunction application in Waqf Suit No. 61/2009. This application filed by respondent No. 1 [hereinafter referred to as 'the trustee' for short] is allowed by the Tribunal by the order dated 15.6.2009. CRA No. 66/2012 is filed against the order made by Waqf Tribunal on Exh. 51 in Waqf Suit No. 61/2009. The application filed by respondent No. 1 trustee to strike off the defence of revision petitioner is allowed by the Waqf Tribunal. The Writ Petition No. 627/2009 is filed to challenge the order made by Waqf Board on 19.11.2008. By the order, the Board has directed that the construction going on in the campus of Jumma Masjid will be continued under the supervision of Divisional Waqf Officer, Konkan Region and the Officer is to execute the work with the help of villagers. A direction was given to both the sides to cooperate the Divisional Waqf Officer.
3. It appears that Waqf Suit No. 20/2009 filed by the petitioner is dismissed. Submission was made that proceeding is filed for restoration of suit. Waqf Suit No. 20/2009 and 61/2009 were in respect of the same subject matter and similar relief was claimed by the petitioners and respondent No. 1. In view of this circumstance, giving decision in CRA No. 85/2009 would be sufficient for decision in respect of temporary relief claimed by the two contesting sides. In view of nature of relief claimed in the Writ Petition, the decision given in revision petition will be sufficient for disposal of the Writ Petition also.
4. Jumma Masjid, the institution was registered under the Trust Act on 24.6.2004 in the office of Assistant Charity Commissioner, Raigad. Though the institution was registered first time in the year 2004, the Masjid is more than two centuries old. Many agricultural lands and house properties are registered as properties of this trust. Respondent No. 1 -Mohammad Arif from the revision petition is the as Chief Trustee and there were ten more other trustees.
5. It is the case of petitioners that as per the scheme submitted in the office of Assistant Charity Commissioner, it is necessary to hold election after every three years starting from 28.6.2004. It is contended that till 27.6.2007 no General Body was called and no steps were taken by the trustees for calling General Body for electing new Managing Body. It is contended that initially two interested persons gave representation to the trustees on 1.8.2007 for calling General Body and then 42 such persons gave representation on 30.8.2007. These persons were interested in General Body as new Managing Body was not elected as per the scheme. It is contended that application was given to the Chief Officer of Waqf Board on 23.6.2007 and the authority was also requested to take steps by appointing Officer to hold the election. It is the case of petitioners that as no such steps were taken, the interested persons called General Body meeting on 17.5.2008 for election of Managing Body and on 17.5.
