2025:BHC-AS:9182-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION (ST) NO.5536 OF 2024

1. Farooq Yasin Sayyad Inamdar, Adult, Male, Indian Inhabitant, Occu.: Agri. and Business, Residing at Sayyed Nagar, Hadapsar, District – Pune – 411 028.

2. Mohammed Amin Sayyad, Adult, Male, Indian Inhabitant, Occu.: Agri. and Business, Residing at Sayyed Nagar, Hadapsar, District – Pune – 411 028. …..Petitioners Vs.

1. State of Maharashtra, Through Principal Secretary, Revenue and Forest Department, Mantralaya, Mumbai.

2. Maharashtra State Board of Waqfs, Through its Chief Executive Officer, Panchakki, Aurangabad – 431 002. 3. The Chief Executive Officer, Having office at the Maharashtra State Board of Waqfs Panchakki, Aurangabad – 431 002.

4. Mehboob Abdul Gafar Shaikh, Adult, Male, Indian Inhabitant, Occu.: Not known, Residing at Kavde Basti, Malwadi, Hadapsar, District – Pune – 411 028. …..Respondents Mr. Gulam Dastagir Shaikh with Mr. Hamid Ansari, i/b. Judicare Law Associates, for the Petitioners.

Mrs. P. P. Shinde, APP, for Respondent No.1-State. Mr. R. M. Momin, for the Respondent Nos.2 & 3.

Mr. Sachin B. Thorat with Mr. Prajwal Thorat, for the Respondent No.4.

CORAM : REVATI MOHITE DERE &

DR. NEELA GOKHALE, JJ.

DATE : 18^th FEBRUARY 2025.

JUDGMENT :- (Per Dr. Neela Gokhale, J.)

1. The Petitioners assail the Show Cause Notice dated 15^th January 2024, issued by the Respondent No 3-the Chief Executive Officer of the Waqf Board, Panchakki, Aurangabad (‘CEO’). By the Show Cause Notice, the CEO called upon the Petitioners to show cause as to why criminal action should not be initiated to recover the Waqf property as per the provisions of Sections 52 & 52-A of the Waqf Act, 1995 (‘the Act’).

2. By Order dated 5^th August 2024, this Court had noted the submission of the Petitioners that the Respondent No.3 i.e. the CEO cannot be a litigant and a judge in his own cause, at one and the same time. This Court thus, granted time to the Respondents to file their Affidavit in Reply on merits as well as on the ground of maintainability of the Petition, as raised by the Petitioner. Ad-interim relief thus, ensued staying the operation of the Show Cause Notice impugned in the Petition, till the next date.

3. Accordingly, the Respondent No. 4, i.e. the Complainant/ Applicant before the Waqf Board, i.e., the main contesting party in the present Petition filed his reply Affidavit dated 21^st October 2024. Besides replying on merits, the Respondent No. 4 stated in his Affidavit that the Petitioners herein had illegally transferred the Waqf property without the previous sanction of the Waqf Board, which is in direct contravention of the provisions of the said Act. Therefore, he submitted that the proceedings initiated against the Petitioners by the Respondent No. 3 as CEO of the Waqf Board are maintainable.

4. Mr. Sachin Thorat, learned counsel appearing for the Respondent No.4 relied on a judgment of this Court in Shreyas Infrastructures, A Partnership firm v State of Maharashtra¹ to suggest that an alternate remedy would not operate as a bar in certain contingencies, which are enumerated by the Supreme Court in its various decisions and reiterated in Shreyas Infrastructures (Supra). He submits that only in the said contingencies, a Writ Petition shall be

1 2017 SCC OnLine Bom 8679 maintainable. The following are the contingencies enumerated in Para

31 of Shreyas Infrastructures (Supra):

“31. ……...

(i) Where the Writ Petition has been filed for enforcement of any fundamental rights;

(ii) Where there has been violation of the principles of natural justice;

(iii) Where the proceedings are wholly without jurisdiction;

(iv) Where vires of the Act is challenged.”

5. According to the Respondent, none of the above contingency is attracted to maintain the present Petition. He further says that the challenge is to a mere show-cause notice and that it is open for the Petitioners to appear before the CEO and make their submissions before h