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BOMBAY HIGH COURT
A.S. Chandurkar and Manish Pitale, JJ.
Zahedabi —Appellant
versus
Maharashtra State Board of Waqf Pan Chakki, Aurangabad —Respondent
Writ Petition No.6104 of 2016
Decided on 18.12.2019
Counsel for the Parties:
M. Sharif, Advocate, A.J. Mirza, Advocate, A.S. Dhore, Advocate, A.M. Kadukar, Advocate, B.P. Maldhure, Advocate, R.L. Khapre, Advocate, R.T. Anthony, Advocate
IMPORTANT POINT
Waqf Board has power to grant extension of time beyond period prescribed in Section 36(8) of Waqf Act, 1995 for making application for registration of Waqf by a Mutawalli.
Headnote:
(A) Waqf Act, 1995 – Section 36(8) – Registration of Waqf – Bar of limitation – Section 36(8) provides for limitation of three months for moving application for registration of a Waqf – Starting point of limitation of said period of three months, for a Waqf created prior to commencement of Act, is date of commencement of Act and in case of a Waqf created after commencement of Act, date of creation of Waqf – Power has to be read in Waqf Board to grant extension of period prescribed under Section 36(8) of Act for making of application for registration of Waqf by Mutawalli – Waqf Board has power to grant extension of time beyond period prescribed in Section 36(8) of Act for making application for registration of Waqf by a Mutawalli. (Paras 12, 17 and 22)
(B) Interpretation of Statute – Rule of Purposive Interpretation – Purposive interpretation of a statute is to be preferred when literal interpretation appears not to be in harmony with basic purpose of enactment. (Paras 13, 14 and 15)
Result: Appeal dismissed.
JUDGMENT
Manish Pitale, J.—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, (2010) 5 MhLJ 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 to do certai
