The court clarified the electoral process for Waqf trustees, stipulating that voters must be at least 21 years old and reside in a specified vicinity, while urging the Waqf Board to ensure compliance with regulations.

JUDGMENT :

SHAILESH P. BRAHME, J.

1. Heard both sides finally at the admission stage.

2. Applicants are taking exception to the distinct judgment and order dated 16.06.2023 rejecting Waqf Application No.3 of 2019 and allowing Waqf Application No.38 of 2021. Applicants are the elected trustees who are aspiring for approval of their change report.

3. The respondent no.1 – Choti Masjid Trust is having registration under Maharashtra Public Trust Act. It is a waqf registered under the WAQF ACT , 1995 (hereinafter referred to as ‘the Act’ for the sake of brevity and convenience).

4. For the administration of respondent no.1, a scheme was sanctioned by judgment dated 10.07.1989 by Joint Charity Commissioner, Aurangabad, which will be referred to as the Scheme which is at Exhibit A of the paper book. The applicants were elected on 25.02.2019 as trustees for the period of five years. They had submitted change report to respondent no.2 – Waqf Board. It was approved in resolution dated 01.09.2021 by the Board. Being aggrieved, Waqf Application No.38 of 2021 was filed by respondent no.1. Against the direction issued by respondent no.2 – Board for the appointment of Election Officer, Waqf Application No.3 of 2019 was filed.

5. So far as the impugned judgment passed in Waqf Application No.3 of 2019 is concerned, the matter has become infructuous. The tenure of the present applicants expired on 25.02.2024. The respondents are expected to conduct the election. It is reported that very few persons of First Board of Trustees are surviving. The need to conduct election is apparent. The counsels of both sides are unanimous on the point that the Scheme to the extent of clauses 8 (C) and (D) is ambiguous. The applicants seek clarification and the purposive interpretation of the Scheme so as to facilitate the conduct of transparent and fair election. In this backdrop, I propose to examine the impugned order and relevant portions of the Scheme.

6. Mr. Ameet Vaidya, learned counsel appearing for the applicants submits that the Tribunal overlooked resolution dated 22.12.1989 and in view of clause 27 of the scheme, the resolution has a binding force in the absence of any rules of regulations to regulate the elections. It is submitted that the Tribunal should have upheld the election of the applicants. It is submitted that the Scheme clause 8 (C) and (D) are autocratic in nature. Applicants filed application for modification of the Scheme but it has not been decided. It is further submitted that clause 8 (C) and (D) need to be interpreted so that they would become enforceable and practicable. Learned counsel submits that the respondent no.2 – Board would consume time to modify any new scheme.

7. Mr. S.S. Kazi, learned counsel appearing for respondent no.1 submits that it would be the function of the Board to formulate the scheme and the Tribunal could not have assumed such powers. It is submitted that respondent no.2 – Board approved the change report of the applicants by non-speaking order, which is perversity. Learned counsel supports the impugned order on the ground that the Scheme was not challenged before the Tribunal. It is vehemently contended that both sides are willing to file applications for amendment to scheme and necessary directions be issued to the respondent no.2 – Board to decide the applications.

8. Learned counsel for respondent nos.2 and 3, Mr. N.E. Deshmukh submits that clause 8 (C) and (D) are ambiguous and autocratic. He adverts my attention to Section 69 of the Act.

9. I have considered rival submissions of the parties. Undisputedly, the a