Bombay High Court
Narendra Ramnath Ugale And Anr vs Linker Shelter Pvt. Ltd., Thr. Director ... on 8 October, 2021
Author: Bharati Dangre
Bench: Bharati Dangre
1/20 J CRA-102-19+1.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.102 OF 2019
WITH
INTERIM APPLICATION NO.2183 OF 2021
Linker Shelter Pvt. Ltd. through Director
Prasad Chandrakant Deshpande .. Applicant
Versus
Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors. .. Respondents
WITH
CIVIL APPLICATION NO.40 OF 2019
Narendra Ramnath Ugale & Anr. .. Applicants
Versus
Linker Shelter Pvt. Ltd. through Director
Prasad Chandrakant Deshpande .. Respondents
AND
CIVIL REVISION APPLICATION (ST) NO.25385 OF 2019
Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors. .. Applicants
Versus
Uttam s/o Nabhaji Mahale & Ors. .. Respondents
M.M.Salgaonkar
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WITH
INTERIM APPLICATION (ST) NO.93681 OF 2020
Yogita Sundar Kokate .. Applicant
Versus
Dudadhari @ Kathada @ Kagzipura Masjid
Trust through Trustee Sayed Abdul Shakoor
Sayyed & Ors. .. Respondents
...
Mr.Girish Godbole with Mr.Sagheer A. Khan, G.D.Shaikh, Akif
Patel and Maaz Sayed i/b Judicare Law Associates for the
Applicant in CRA/102/19 and for Respondent No.7 in
CRAST/25385/19.
Mr.Parth Zaveri i/b Mr.Akhlaque M.S.Solkar for Respondent
Nos.8 to 13 in CRA/102/19 and for Respondent Nos.1 to 6 in
CRAST/25385/19.
Ms.Madhavi Ayyapan with Ms.Ayesha Keshodwala i/b Talekar
& Associates for the Applicant in CRAST/25385/19.
Mr.Tejesh Dande with Mr.Pradip Shingte, Mr.Bharat Gadhavi,
Mr.Aniket Aghade for the Intervenor in IAST/93681/20.
Mr.N.N.Gawade i/b M/S Sanjay Udeshi & Co. for the Applicant
in CA/40/19.
Mr.R.M.Momin for Respondent Nos.6 and 7 in CRA/102/19 and
for Respondent Nos.8 and 9 in CRAST/25385/19.
...
CORAM: BHARATI DANGRE, J.
DATED : 08th OCTOBER, 2021
JUDGMENT:-
1. The two Civil Revision Applications were placed for expeditious hearing in terms of the order passed by the learned Single Judge of this Court (Coram : S.C.Gupte, J.) on M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 3/20 J CRA-102-19+1.doc 24/09/2019. In furtherance of the said order, these two applications are heard fnally, by the consent of parties.
2. Civil Revision Application No.102 of 2019 is fled by the Applicant challenging the judgment delivered by the Maharashtra State Waqf Tribunal at Aurangabd (hereinafter referred to as "the Tribunal") in Waqf Appeal No.01 of 2016, which is instituted by Respondent Nos.1 to 5. By the said judgment dated 16/10/2018, the Tribunal has allowed the Appeal and has set aside the order dated 04/02/2016 passed by the Chief Executive Offcer (C.E.O.) of the Maharashtra State Board of Waqf, Aurangabad and the matter is remanded back to the Board for deciding afresh, after affording an opportunity to both the parties. The Board is directed to expedite the matter and decide the same within a period of six months.
As far as Civil Revision Application (St) No.25385 is concerned, it is instituted by the Wakf and its trustees. The relief prayed therein is to set aside the judgment and order dated 31/08/2019, passed by the Tribunal in Wakf Application No.34 of 2019 and to restrain the Respondents from transferring the possession of tenements on Wakf property till four weeks after disposal of Wakf Application under Section 40 M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 4/20 J CRA-102-19+1.doc of the Waqf Act, pending before the Maharashtra State Board of Wakfs. A relief is sought to continue the protection granted by the Hon'ble Supreme Court thereby setting aside the transfer of tenements on wakf property.
3. Heard the learned counsel appearing for the respective parties.
4. The dispute in the two Applications revolves around the land bearing Survey Nos.980 and 981 situated at Morwadi, Nasik. The parties can be introduced in the following manner :-
(a) Linker Shelter Pvt. Ltd., a company registered under the Companies Act is a Developer, who has a development agreement with the original owners; Respondent Nos.8 to 13, are the members of Mahale family. Respondent No.1 is a Waqf viz. Dudadhari @ Kathada @ Kagzipura Masjid Trust whereas Respondent Nos.2 to 5 are Mutawallis of Respondent No.1.
5. Respondent Nos.2 to 5 set a claim qua the subject matter of the land described above and alleged that the aforesaid land is the waqf property whereas Respondent Nos.8 to 13 canvassed that they they are the owners of the said land on the basis of their claim, that their predecessors-in-title were M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 5/20 J CRA-102-19+1.doc the cultivators of the said land and they had purchased the said land as per the scheme under the Bombay Tenancy and Agricultural Land Act, 1948 (for short, "the BTAL Act"). It is alleged that they had also obtained the certifcate under Section 32M of the BTAL Act. The discord between the parties was referred to the Waqf Board and these two Civil Revision Applications are the offshoot of the said reference.
6. Learned Counsel Mr.Godbole appearing for the Applicant in Civil Revision Application No.102 of 2019 has placed before me an exhaustive list of dates and events, which relate back to the year 1923 when a claim is staked by the Respondents, Trust that the property, which is the subject matter of the Applications, was given to the Trust in Inaam for maintaining the Masjid from the incomes derived there from. As against this, event in the year 1945 is stated to be of great consequence since at the relevant time, the forefathers of Respondent Nos.8 to 13 were cultivating the said property and on 10/03/1962, the Tenancy Tribunal, passed an order under Section 32-G of the BTAL Act, fxing the purchase price of the property and on 16/10/1967, upon payment of installments, a certifcate under Section 32-M of the BTAL Act was issued and was registered as per the provisions of the Registration M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 6/20 J CRA-102-19+1.doc Act, 1908.
The initiating point for the discord is described as the event dated 05/02/1983, when the trustees of Respondent No.1 fled an application under Section 18 of the Bombay Public Trust Act, 1950 for its registration, but did not include the said property as its properties in the application. Pertinent to note that since the Waqf Act, 1954 was not applicable to the State of Maharashtra except Marathwada Region, the application was preferred under the BPT Act, 1950. Another milestone in the dispute was attained when the Respondent/Trust fled an application under Section 36 of the Waqf Act, 1995, on the commencement of the Waqf Act throughout the State of Maharashtra and registration of the subject property, as a property of Waqf was sought. The registration was granted on 04/08/2008.
7. This event led to the respective parties to institute the proceedings and the initiation was by the owners of the property, who challenged the order of registration before the Tribunal, who set aside the registration on 04/02/2016. The Trust challenged the order by fling Waqf Appeal No.01 of 2016 where the impugned judgment came to be delivered on 16/10/2018. During this interregnum, the parties approached M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 7/20 J CRA-102-19+1.doc the highest Court of the land. The orders came to be passed restraining the Applicant/Developer and the owners from allowing handing over possession to the fat purchasers. This order came to be modifed at some later point of time and was made subject to the outcome of the Waqf Appeal. However, I need not be detained by the niceties of the interim orders, which were granted, modifed and again reinforced by subsequent orders and I deem it expedient to go to the core issue, which arises for determination in Civil Revision Application No.102 of 2019.
In my endeavour to fnd out the bone of contention between the parties in assailing the judgment dated 16/10/2018 passed in Waqf Appeal No.01 of 2016, I am assisted by the learned counsel Mr.Godbole and Ms.Ayyapan.
8. The exhaustive judgment of the Tribunal, which runs into 43 pages and 57 paragraphs, when carefully perused, would divulge that the Tribunal has traced the history of litigation, but from paragraph 44 onwards, the main issue is dealt with and which is about the jurisdiction of the C.E.O. and the power in passing the impugned order dated 04/02/2016 by which the registration of the subject land as waqf property has been set aside. The Appellant had questioned the exercise of M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 8/20 J CRA-102-19+1.doc power under Section 40 of the Waqf Act, 1995 by the C.E.O. and this formed the fulcrum of the Appeal instituted by them.
9. It would be necessary to make a brief reference to the said provision contained in the Waqf Act, which provide for the better administration of waqf. By Section 40, the Board constituted under Chapter IV of the Act, is empowered to collect information regarding any property, which it has reason to believe to be a waqf property and to determine the question whether a particular property is waqf property or not and whether a waqf is a Sunni waqf or a Shia waqf and for the said purpose, it is empowered to make such inquiry as it deem ft and decide the question. By virtue of sub-section, the decision of the Board on a question whether the property is a waqf property shall be fnal unless revoked or modifed by the Section 27 permit the Board, by a general or special order in writing, to delegate such of its power and duties under the Act as it deem necessary to the Chairperson or to the other member, the Chief Executive Offcer or any other offcer or servant of the Board, subject to the conditions and limitation as may be specifed in the said order. Certain exceptions are carved out by the Section itself where the power cannot be delegated.
M.M.Salgaonkar
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10. The impugned order dated 04/02/2016 is passed by the C.E.O. of the Waqf Board, in exercise of delegation of power fowing from the Board itself. The controversy involved in the Civil Revision Applications can be concised and formulated, by searching it in the order of the Tribunal and the limited controversy is; whether the C.E.O. was delegated the powers to deal with the application fled under Section 40 of the Act and whether there was resolution of the Board delegating such a power.
11. During the course of hearing of appeal before the Tribunal, the Appellant/Trust tendered a list of documents, which was exhibited as Exhibit 23 and which includes, following three documents;
(1) Copy of Sanad of the year 1853;
(2) Resolution dated 13/07/2013;
(3) Resolution dated 19/12/2013
The confict is about the document at Sr.No.3; being Resolution dated 19/12/2013. The said document came to be exhibited as 'Exh.A-12' and the said document was placed before the Tribunal and is enlisted at page 250 of the paper-book of the present Civil Revision Applications. The said document is in M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 10/20 J CRA-102-19+1.doc form of Minutes of the Board Meeting dated 19/12/2013 held at Regional Wakf Offce, Haj House, Nagpur and is passed in the presence of 7 members, completing the coram. On Point No.7, the following resolution is passed.
"Establishment Section Point No.7. Delegation of powers to the Chief Executive Offcer, Member, Servants under section 27 of the Wakf Act, 1995.
Resolution No. 110/2013 :- It is unanimously resolved to delegate the powers of the Board as prescribed in section 36, 37, 40, 41, 42, 43 and 70 to Chief Executive Offcer for smooth functioning of the business of the Board."
The resolution is signed by the President/Chairman of the Maharashtra State Board of Wakfs and the fve members as well as by the C.E.O. of the Board. It is apparent that the said document was before the Tribunal and it was imperative for the Tribunal to have referred the same. Instead, the Tribunal proceed to record as under :-
"50. Here, it is disclosed that by the resolution dtd.19.12.2013 the Board has delegated the powers to M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 11/20 J CRA-102-19+1.doc the C.E.O. of the Board for deciding the application under Section 40 of the Act and by virtue of the said powers the C.E.O. has passed the order. However, there is no such reference of delegation of powers in the impugned order and even the order does not speak any such power of the Board were delegated to him for deciding the application under Section 40 of the Act. Not only this but the record and proceeding called from the Board also does not have any copy of the order in written made by the Board or the resolution of the Board under which the powers were delegated to the C.E.O."
12. The Respondent had placed reliance upon a letter of the State Government dated 16/10/2015, which is in a form of clarifcation addressed to the C.E.O. of the Board, when the guidance is sought by the C.E.O. about the powers to be exercised. The Government clarifed that by virtue of resolution No.7 in the meeting dated 19/12/2013, the C.E.O. has been delegated the powers under Sections 36, 37, 40, 41, 42, 43 and 70 of the Act alongwith Sections 69(5), 52A(3). As per resolution No.12, the guidance is provided that in exercise of the said powers, which are delegated, the C.E.O. shall M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 12/20 J CRA-102-19+1.doc discharge the day-to-day functioning of the Board and if at all some more delegation is required, a meeting of the Waqf Board can be called for and the resolution can be passed. The said letter of the Government dated 16/10/2015 fnds place at page No.248 of the paper-book.
13. As far as the said letter is concerned, the Tribunal concluded that this is not a authority letter, which would empower the C.E.O. to decide the application under Section 40(1) of the Act and even the State Government is not empowered by law to delegate the powers, which are vested with the Board, as Section 27 of the Act makes it clear that only the Board can delegate the powers to the C.E.O. or chairperson as contemplated under the said provision. Here, the Tribunal is right, as the said letter of the Government does not delegate the power because the delegation under Section 27 must come from the Board itself. After recording this, in paragraph 23 of the impugned judgment, the Tribunal observed as under :-
"53. Even the resolution of the Board dtd.19.12.2013 which is referred in the said letter is not produced on record. The surprising thing that, the Board is party but no any attempt is also made from M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 13/20 J CRA-102-19+1.doc the Board to substantiate their contention to produce the said resolution of the Board by which the powers are delegated to the C.E.O.. In short, there is no any document on record to show that the C.E.O. was delegated the powers of the Board to decide the application under Section 40(1) of the Act of petitioner."
14. The said observation of the Tribunal is clamped as perverse, as it has failed to take into consideration the resolution of the Board dtd.19/12/2013, which was placed before the Tribunal by the Appellants themselves. I agree with the said submission. The said fnding is undoubtedly perverse as the Tribunal has recorded that, since the order of C.E.O. does not speak of any such resolution, nor the Government communication dated 16/10/2015 grants delegation in favour of the C.E.O. and thirdly, the resolution of the Board itself is not produced. This observation is in utter contrast to the factum of production of resolution before the Tribunal by the Appellants themselves vide Exhibit 23. Now, the Tribunal has travelled further and made the following observations in paragraph 56, M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 14/20 J CRA-102-19+1.doc "56. Since, the order of the C.E.O. is without jurisdiction and hence the application under Section 40 of the Act is to be decided by the authority having a competent jurisdiction, particularly by the Board as per the directions of the Hon'ble High Court and hence it is just to remand the matter with direction to decide it as a fresh by the Board."
15. True it is, that this Court directed the Board to decide the application under Section 40(1), but when the power of the Board is delegated to the C.E.O., necessarily the Board is denuded of its power to decide the application and the decision of the C.E.O., in exercise of the power delegated to it, cannot be said to be without jurisdiction. The Tribunal has completely omitted the relevant document, being a resolution dated 19/12/2013, which clearly delegate the power of the Board to the C.E.O. and this delegation is qua the several powers under the Act, which include the power under Section 40 to conduct an inquiry.
16. Learned counsel appearing for the Respondents makes a futile attempt to justify the order by relying upon the application for production of documents, which came to be exhibited as Exhibit 36. On 18/04/2016, certain documents M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 15/20 J CRA-102-19+1.doc were sought to be produced on record of the Tribunal, which include some old revenue records and pre-independent era documents received from the Archives Department and also the letters written by the members of the Wakf Board, objecting to the delegation of powers to the C.E.O. of the Board. Alongwith the said application what is annexed is, a letter signed by the three members of the Maharashtra State Wakf Board and the subject mentioned is "withdrawal of the board's power delegated to CEO".
A careful reading of the said letter, at the most is indicative of a proposed resolution to be put up before the Board for withdrawal of power from the C.E.O., but this surely is not a resolution passed by the Board. It can be very well said that if the power has been conferred upon the C.E.O. by a resolution, it shall be withdrawn in a like manner i.e. it could have been withdrawn only by the Board by passing the resolution. A letter being addressed by the three members to the C.E.O., in no case would amount to withdrawal of powers conferred by a resolution passed by the Board on 19/12/2013. In any case, the Appellant never relied upon this document while the Tribunal dealt with the point of delegation of power to the C.E.O. by resolution of the Board dted 19/12/2013. This M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 16/20 J CRA-102-19+1.doc is probably for the reason that the counsel for the Appellants was conscious that this letter dated 21/08/2014 does not amount to withdrawal of delegation.
17. Learned counsel of the Respondents has vehemently argued that the delegation itself is improper and there cannot be a blanket delegation in light of Section 27 of the Waqf Act and she placed reliance upon a decision of this Court in case of Shaikh Saleemuddin s/o Shaikh Ameenuddin & Ors. Vs. Baba s/o Manna Quereshi & Anr.,1. When the said decision is perused, it can be seen that the issue before the learned Single Judge of this Court was revolving around framing of a scheme under Section 32 of the Act, which in fact was a scheme under Section 69, and the argument was, the Chief Executive Offcer had no powers to frame such a scheme. This judgment does not assist the parties in any way.
When Section 27 of the Act makes it clear that the Board can delegate its powers and duties under the Act to any person mentioned in the said provision and when the Board has chosen to exercise its power, being delegated to the C.E.O. to determine the question whether the subject property is waqf property and the C.E.O. accordingly has passed an order in 1 2015(3)Mh.L.J. 681 M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 17/20 J CRA-102-19+1.doc exercise of his delegated power and, when the delegation by the resolution is never called in question, I do not see any reason to doubt the correctness of the delegation by the resolution.
18. The aforesaid would clearly lead to an irresistible conclusion that the Tribunal has failed to consider the resolution dated 19/12/2013, which forms the core of the appeal, although it was placed before it by the Appellants themselves. The short point on which the impugned judgment deserves to be set aside is this. Resultantly, the decision of the Tribunal remanding the appeal back to the Board for taking a decision on an application preferred under Section 40 of the Waqf Act, therefore, cannot be sustained as it suffers from perversity.
19. Upon such a conclusion being arrived, learned counsel appearing for the Applicants, Respondents as well as the Intervenors are at consensus that the Tribunal shall decide the appeal on its merits as it has passed the order on a technical ground, being the alleged resolution delegating the powers to the C.E.O. is not on record. Now, since it is noticed that the very said document i.e. Resolution dated 19/12/2013 was before the Tribunal, it cannot discard its responsibility to M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 18/20 J CRA-102-19+1.doc decide the appeal on merits, where the order passed by the C.E.O. is questioned, which it has refused to do on a technical ground, that the resolution which was said to be the basis of the power of the C.E.O.. Hence, the Tribunal shall decide the appeal fled by the Appellants on its own merits. The parties are also consenting to an order that the appeal pending before the Tribunal shall be decided within a period of four weeks from today and both the sides to the appeal shall render their co-operation to the Tribunal in concluding the appeal within the stipulated period.
20. As far as the position about the fats being allowed to be transferred or not to be transferred is concerned, my attention was invited to a factual position to the effect that 634 fats have been constructed by the petitioner No.1 on the subject property and out of which, 491 fats have been handed over to the purchasers, but the remaining could not be handed over on account of the orders being at variance from time to time. In any case, learned counsel Mr. Godbole appearing for the Applicant concede to the fact that there shall be no more confusion at their end and the stage at which the party stands as on today, shall continue till fnal decision by the Tribunal in Appeal No.01 of 2016 and since, the Tribunal is now directed to M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 19/20 J CRA-102-19+1.doc decide the appeal within a period of four weeks, status-quo as on today shall be maintained by the parties till its culmination after four weeks.
21. Civil Revision Application (St) No.25385 of 2019 pose a challenge to the order dated 31/08/2019 passed by the Wakf Tribunal in Wakf Application No.34 of 2019. It is pertinent to note that by the said order, the Tribunal has quashed and set aside the order dated 18/02/2019 and order dated 02/03/2019 passed by the Wakf Board, by which it had directed continuation of the status-quo order granted by this Court till passing of further orders. In any case, the said orders were in nature of interim orders and on 31/08/2019, the Tribunal had made an order to the effect that if any transaction is made by the contesting Respondent with any purchasers for selling of fat, it shall be subject to the decision of the application fled by the Trust under Section 40(1) of the Wakf Act. Since the Application under Section 40(1) preferred by the Trust will be adjudicated upon by the Tribunal within a period of four weeks, no orders are necessary on the aforesaid Civil Revision Application, which stands disposed of.
22. Civil Revision Application No.102 of 2019 is allowed in the aforesaid term and the impugned judgment of the Waqf M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 ::: 20/20 J CRA-102-19+1.doc Tribunal in Appeal No.01 of 2016 is set aside. The Tribunal shall adjudicate the Appeal on its own merits, uninfuenced by any observations, touching the merits of the matter.
23. In view of the disposal of the Civil Revision Applications, the Interim Applications do not survive and are disposed of.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 14/10/2021 ::: Downloaded on - 16/10/2021 18:43:20 :::