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2019 Supreme(Bom) 1735
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
A.S. CHANDURKAR, MANISH PITALE, JJ.
Zahedabi & Others – Appellants
Versus
The Maharashtra State Board of Waqf Pan Chakki, Aurangabad & Others – Respondents
Writ Petition No. 6104 of 2016
Decided on : 18-12-2019
Advocate Appeared:
For the Petitioners: M. Sharif, A.J. Mirza, Counsels.
For the Respondents: A.S. Dhore, A.M. Kadukar, B.P. Maldhure, R.L. Khapre, R.T. Anthony, Counsels.
Headnote:
Waqf Act, 1995 - Section 36 – Evidence on record – Claim of compensation - Collect information regarding any property - In context of aforesaid question framed for consideration learned counsel for the petitioners submitted that Section 36 of the said Act in Chapter-V pertaining to registration was a complete Code, laying down the procedure and the manner in which application for registration of waqf could be made. It was submitted that since it was a statutory scheme specifically providing for registration of waqfs by application, the period of limitation of three months prescribed in Section 36(8) of said Act was to be strictly construed, with no scope for any dilution of the requirement as correctly held in the aforesaid judgment of this Court in case - It was further submitted that waqf Board had no power to grant any extension of time for moving an application for registration of waqf beyond the specific period of limitation prescribed under Section 36(8) of said Act - Learned counsel further submitted that Section 50 of the said Act pertaining to duties of and Section 60 thereof pertaining to power of Board to grant extension of time to do certain Acts, could not be read into Section 36(8) of Act to claim that Board could grant extension of time beyond the period of limitation of three months for moving an application for registration of waqf – Held, A perusal of the above quoted portion shows that emphasis was only on Section 36(8) of the said Act and no reference was made to other relevant provisions and the entire scheme of Act - It was not brought to notice of the learned Single Judge of this Court that Section 60 of the Act specifically reserves a power in the Board to grant extension of time to perform duties required to be done by under the said Act. As noted above, denying consideration of application for registration of waqf beyond the period of three months specified in 36(8) of the said Act would not to the benefit of any of the stakeholders under the said Act, apart from the same operating counter to objects and purpose of Act - Scheme of the Act shows that registration of waqfs is encouraged so that a register of is maintained by the respondent waqf Board, so as to ensure proper superintendence of waqf properties - Section 40 of the Act gives power to the waqf Board to collect information regarding any property and to make suitable enquiry to examine as to whether such property is a property requiring registration. Although the learned counsel appearing for contesting respondents sought to place emphasis upon Section 40 of the said Act to show that properties could be registered as waqf upon enquiry by the waqf Board, this Court is not called upon to examine the said aspect of the matter, as it goes beyond the purview of the specific question referred for consideration - It is also relevant to mention here that the learned counsel for the petitioners brought to the notice of this Court that Special Leave Petition challenging the said judgment of the learned Single Judge of this Court in the case was dismissed thereby confirming the said judgment. But, as per settled law, recently reiterated by Supreme Court in the case of Distilleries Ltd a non-speaking order or speaking order refusing special leave to appeal does not attract the doctrine of merger – Petition allowed
JUDGMENT :
Manish Pitale, J.
1. This Larger Bench was constituted by the Hon’ble Chief Justice to answer a question referred for consideration by a learned Single Judge of this Court, expressing inability to agree with judgment passed by another learned Single Judge of this Court in the case of Mohd. Ansar Salik and others vs. Shaikh Hamid Babumiya Inamdar and others reported in 2010(5) Mh.L.J. 607. In the said earlier judgment of the learned Single Judge of this Court, in the context of the provisions of the Waqf Act, 1995, it was held that limitation prescribed in Section 36(8) of the said Act for entertaining an application for registration of waqf by the waqf Board was to be strictly construed and that the Board had no power to entertain an application for registration of waqf, beyond the period of limitation of three months.
2. As noted above, subsequently, disagreement was expressed with the said view in the present writ petition and the following question was referred to the Larger Bench for consideration:-
“Whether the period as prescribed by Section 36(8) of the Waqf Act, 1995 for making an application for registration of the Waqf can be extended by the Waqf Board if such application is made beyond the period prescribed therein?”
3. The brief facts relevant for appreciation of the backdrop in which the said question has arisen, are that respondent Nos.7 to 14 filed an application for registration of waqf pertaining to certain property situated in Tahasil Umrer, District Nagpur. It was claimed by respondent No.7 that he was mutawalli of the said waqf, which was orally created on 26/11/1997 and the application for registration of waqf was made in December, 2004 before the respondent No.1 waqf Board. On 15/01/2005, the waqf Board directed registration of the waqf. The petitioner challenged the same before the waqf Tribunal i.e. District Judge, Nagpur, claiming that no notice was issued and proper procedure was not followed by the respondent waqf Board while granting registration. The said challenge raised by the petitioners was rejected by the waqf Tribunal by order dated 04/08/2016, which is subject matter of challenge in the present petition filed by the petitioners.
4. In the writ petition, amongst other grounds, the petitioners raised ground that respondent No.1 waqf Board could not have entertained the application for registration of waqf made by the mutawalli in December, 2004 for a waqf orally created on 26/11/1997, since the application for registration of waqf filed by the mutawalli under Section 36(1) of the said Act could not have been entertaned by the waqf Board beyond specific period of limitation of three months prescribed in Section 36(8) of the said Act. Reliance was placed on the aforesaid judgment of the learned Single Judge of this Court in the case of Mohd. Ansar Salik (supra).
5. In the context of the aforesaid question framed for consideration, Mr. Masood Sharif, learned counsel for the petitioners submitted that Section 36 of the said Act in Chapter-V pertaining to registration of auqaf was a complete Code, laying down the procedure and the manner in which application for registration of waqf could be made. It was submitted that since it was a statutory scheme specifically providing for registration of waqfs by application, the period of limitation of three months prescribed in Section 36(8) of the said Act was to be strictly construed, with no scope for any dilution of the requirement as correctly held in the aforesaid judgment of this Court in the case of Mohd.Ansar Salik (supra). It was further submitted that waqf Board had no power to grant any extension of time for moving an application for registration of waqf beyond the specific period of limitation prescribed under Section 36(8) of the said Act. The learned counsel further submitted that Section 50 of the said Act pertaining to duties of mutawalli and Section 60 thereof pertaining to power of the Board to grant extension of time to the mutawalli
