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2015 Supreme(Bom) 99
IN THE HIGH COURT OF BOMBAY AT AURANGABAD
A.I.S. CHEEMA, J.
Shaikh Saleemuddin & Ors. – Appellants
Versus
Baba Quereshi & Anr. – Respondents
Civil Revision Application No. 76 of 2014
Decided on: 05-02-2015
For the Applicants:S.P. Shah, Advocate.
For the Respondents:R1, A.D. Kasliwal, R2, Y.B. Pathan, Advocates.
Headnote:Wakf Act, 1995 - Sections 18, 32 and 69 Management of Dargah. Where since long Managing Committee of Dargah was appointed under Section 18 therefore approval of new Managing Committee by Wakf Board under Section 69, not in consonance with Section 18 of Act. The Tribunal while dealing with the appeal, went into the question whether framing of scheme under Section 69 of the Act is provided when the Waqf is under the direct management of the Board and came to the conclusion that the same is not provided. In view of above discussion, for deciding the appeal, the point was not necessary to decide. The question needs to be left for decision in appropriate proceeding. Similarly the finding of the Tribunal that the delegation of the powers by the Waqf Board (as done vide Annexure B) was not legal, was also a point which was not necessary for taking decision in the matter.
The delegation of powers is provided for in Section 27 of the Waqf Act and if the Waqf Board had delegated the powers vide Annexure B, as done, it would be a matter for decision in appropriate proceedings challenging the delegation. For such reasons the findings and reasons of the Tribunal regarding Points 2 and 3 framed by it need to be ignored as they were not necessary for decision of the appeal. The Chief Executive Officer purportedly framed the Scheme under Section 32 which scheme in substance was under Section 69 of the Act for which the Chief Executive Officer had no powers and thus on this ground itself the order of Chief Executive Officer is not maintainable. For reasons recorded the setting aside of the Order of Chief Executive Officer by Tribunal is maintainable. It cannot be said to be illegal or suffering from material irregularity.
1. Respondent No.2 Chief Executive Officer of Maharashtra State Board of Waqfs passed orders (Annexure F) dated 26th February 2013, acting upon scheme dated 13th August 2012 submitted by Applicants. He accepted scheme for administration and management of "Dargah Hazrath Shahnoor Hamvi Reh. and Dargah Hazrat Shamshoddin Saheb Reh. Masjid, Khankha, Samakhana and Kabrastan, Osmanpura, Aurangabad" (hereafter referred as "Dargah") inter-alia providing for electing Managing Committee every five years. The order settling such scheme was challenged by Respondent No.1 Baba Quereshi (hereafter referred as "Respondent") before the Maharashtra Waqf Tribunal in Waqf Appeal No.5 of 2013. The Respondent prayed to reject the scheme and continue the managing committee which was earlier created under Section 18 of the Waqf Act, 1985 (hereafter referred as "Act") under his chairmanship. The Presiding Officer of Waqf Tribunal on 28th March 2014, partly allowed the Appeal. The impugned order of the Respondent No.2 (hereafter referred as "Chief Executive Officer) dated 26th February 2013 settling the scheme was set aside. However, the request of the Respondent for renewal of his committee was also rejected. The present Applicants, who claim to have been elected in view of the scheme, have filed the present Revision Application challenging the order of the Waqf Tribunal.
2. To understand the controversy, few facts need reference.
The Dargah concerned does not have mutawalli but is directly under the control of the Waqf Board. Since long, Managing Committee was being appointed under Section 18 of the Act. Last period of two years of committee headed by Respondent was to expire on 4th June 2012. Respondent Baba Quereshi, President of the said managing committee submitted proposal to Respondent No.2 Chief Executive Officer for renewal of the managing committee. The Applicants also submitted proposal under Section 18 of the Act for approval of new managing committee. Applicant No.1 Shaikh Saleemuddin proposed himself to be the President of the said new managing committee. Chief Executive Officer heard both sides in proceeding numbered as MSBW/MISC/F.1-A-96 and by order dated 29th June 2012 (Annexure D) rejected the applications of both the parties. Clause (2) of the order reads as under:
"(2) The parties are directed to submit the scheme for approval. The decision for management of the institution will be taken on the approval of the scheme."
The Chief Executive Officer further directed the present committee to continue to look after the day to day affairs of the Waqf.
It appears that notice was published in newspaper calling objections regarding constitution of managing committee under Section 69 read with 32 of the Waqf Act. Respondent Baba Quereshi filed objections (Annexure E). The Applicants, however, submitted a scheme in view of the orders dated 29th June 2012. Chief Executive Officer considered the matter as Case No.32/275/12 and passed orders dated 26th February 2013 (Annexure F). Vide these orders, after hearing both the sides, the Chief Executive Officer observed that the Waqf concerned was under direct control and management of the Waqf Board and that the Applicants had submitted scheme while Respondent Baba Quereshi had filed objections. He observed that there was opposition from the residents of Mohalla and the devotees and so the extension of period sought (by Respondent Baba Qureshi) could not be accepted and that it was necessary that from the residents of Mohalla and the devotees under the supervision of District Waqf Officer voters list should be prepared and from amongst them new management committee should be elected. Thus, the order states that exercising powers under Section 32 of the Act delegated to him by the Waqf Board on 10th June 2011, Chief Executive Officer was passing the orders. He directed preparing of voters list. It was also directed that management committee should be elected, which shall be under the direct contr
