Bombay High Court
Smt. Zahedabi W/O Abdul Razzaque Shete ... vs The Maharashtra State Board Of Wakf Pan ... on 18 December, 2019
Author: Manish Pitale
Bench: A.S.Chandurkar, Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6104 OF 2016
1) Smt. Zahedabi w/o Abdul Razaque Shete
aged about 66 years, Occ. Household,
resident of Near Bazar Chowk, Tah.Kalmeshwar,
District Nagpur
2) Sheikh Zamir s/o Sheikh Ahmed,
aged about 39 years, Occ. Agriculturist,
resident of Flat No.302, Yogalaxmi Aptts.
Modi No.1, Sitabuldi, Nagpur
3) Ku. Shabana d/o Sheikh ahmed now known as
Mrs. Shabana w/o Sheikh Habib,
aged about 43 years, Occ. Household,
resident of Bidipeth, Tajabad, Nagpur.
4) Ku. Shaheen d/o Sheikh Ahmed now known as
Mrs. Shaheen w.o Abdul Mohid,
aged about 40 years, Occ. Household,
resident of Mirchi Bazar, Itwari, Nagpur. .. Petitioners
...V E R S U S...
1) The Maharashtra State Board of Waqf
Pan Chakki, Aurangabad.
2) The Assistant Charity Commissioner,
Civil Lines, Nagpur
3) The Tahsildar, Taluka Umrer, Dist. Nagpur
4) The Office of the Sub Registrar, Umrer, Dist. Nagpur
5) The City Survey Officer, Umrer, Dist. Nagpur
6) The Chief Officer Municipal Council Umrer, Nagpur
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7) Sheikh Nabi s/o Sheikh Rasood,
aged about 74 years, Occ. Nil
8) Abdul Habib Sheikh Nabi,
aged 55 years, Occ. Business
9) Javed Aziz Patel,
aged about 37 years, Occ. Business.
10) Purushottam s/o Nilkanthrao Dhore
aged about 60 years
11) Janba s/o Tukaram Paunikar,
aged about 65 years, Occ. Not known
12) Mohd. Asif s/o Sheikh Nabi,
aged about 45 years, Occ. Service
13) Avinash s/o not known Umredkar
aged about major, Occ. Not known.
14) Smt. Bilkis w/o Mohd. Asif Sheikh
aged about 41 years, Occ. Household
No.7 to 14 resident of Budhwaripeth,
Umrer, District Nagpur. .. Respondents
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Mr. M. Sharif, and Mr. A. J. Mirza counsel for petitioners.
Mr. A. S. Dhore, counsel for respondent No.1.
Mr. A. M. Kadukar, AGP for respondent No.2 & 3.
Mrs. B. P. Maldhure, counsel for respondent No.6.
Mr. R. L. Khapre and Mr. R. T. Anthony, counsel for respondents
No.7 to 14.
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CORAM : A.S.CHANDURKAR AND
MANISH PITALE, JJ.
RESERVED ON : 05/12/2019
PRONOUNCED ON : 18/12/2019
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JUDGMENT
(PER 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 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 ?"::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 :::
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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 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 5 / 21 wp6104.16-Judgment.odt 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 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 6 / 21 wp6104.16-Judgment.odt 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 certain Acts, could not be read into Section 36(8) of the Act to claim that the Board could grant extension of time beyond the period of limitation of three months for moving an application for registration of waqf. The placement of Section 36 to 42 in Chapter-V pertaining to registration of auqaf and Section 50 and 60 in Chapter-VI pertaining to maintenance of accounts of auqaf, was emphasized upon and it was submitted that they operated in completely distinct fields. On this basis it was submitted that the question framed for consideration was required to be answered in the negative.
6. Per contra Mr. R. L. Khapre, learned counsel appearing for contesting respondents No.7 to 14, submitted that if the entire scheme of the aforesaid Act was appreciated in the correct perspective, it was necessary to read a power granted to the waqf board to extend time for registration of waqf beyond the period of three months prescribed under Section 36(8) of the said Act. It was submitted that since mutawalli was enjoined to apply for registration of waqf, it was an act that the mutawalli was lawfully required to do as duty under the said Act and ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 7 / 21 wp6104.16-Judgment.odt consequently, the waqf Board under Section 60 was clearly empowered to extend the time for the mutawalli to apply for registration of waqf. The learned counsel for the said respondents referred to number of judgments on the scheme of the aforesaid Act, emphasizing that once a waqf was always a waqf and that it was in the furtherance of the objects of the said Act that registration of a waqf be permitted by application beyond the period prescribed in Section 36(8) of the said Act.
7. Mr. A. S. Dhore learned counsel appeared on behalf of respondent No.1 waqf Board, while Mrs. B. P. Maldhure, learned counsel appeared on behalf of respondent No.6 and Mr.A.M.Kadukar, learned AGP appeared on behalf of respondents No.2 & 3.
8. In order to answer the aforesaid question framed for consideration of this Court, it would be appropriate to refer to the relevant provisions of the said Act. A perusal of the objects and reasons for enactment of the Act would show that it is meant for superintendence and control over the management of individual waqfs and to clarify certain matters which had arisen during the actual working of the earlier enactment holding the field i.e. Waqf Act, 1954. The purpose of the said Act is to ensure ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 8 / 21 wp6104.16-Judgment.odt that waqf properties are properly managed and that they are not misused either with or without connivance of the mutawallis and others concerned with the waqf properties. Section 2(i) defines mutawalli, which is a widely worded definition, being a person appointed to perform duties specified in the said Act.
9. The respondent No.1 waqf Board has been constituted under the said Act, in order to undertake general superintendence of all auqaf in the State, so as to ensure that such auqaf are properly maintained and administered, with particular emphasis on the income of such auqaf being duly applied to the objects and purpose for which the auqaf were created or intended. The registration of auqaf is provided for under Section 36 of the said Act and the register is maintained under Section 37 thereof. Section 40 of the Act is the source of power for the waqf Board to inquire as to whether any property was a waqf, to be registered as a waqf property. Under Section 41 of the said Act, waqf Board can direct mutawalli to apply for registration of a waqf. Section 50 of the Act provides for duties of mutawallis under the Act and Section 60 gives power to the waqf Board to extend time for the mutawalli to undertake any action to be performed under the said Act, while section 61 provides for penalties to be imposed on the ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 9 / 21 wp6104.16-Judgment.odt mutawalli in case of his failure to perform his duties. There are further provisions pertaining to removal of mutawallis. A waqf Tribunal is established under Section 83 of the said Act for determination of any dispute or question relating to waqf property. There are further provisions in the said Act aimed at achieving the objects and purpose of the same.
10. Thus, the scheme of the said Act indicates emphasis upon protection, preservation and utilization of properties of a waqf for the objects and purpose for which such a waqf is created or intended. In the said scheme of the Act the respondent No.1 waqf Board has a crucial part to play and registration of waqfs becomes an integral part of the process of achieving the objects and purpose of the said Act.
11. With this backdrop, before embarking upon answering the aforesaid question and analyzing the contentions raised on behalf of the rival parties, it would be proper to quote relevant portions of certain provisions of the said Act.
"Section 3 (c) "Board" means a Board of [waqf] established under sub-section (1), or as the case may be, under sub-section (2) of section 13 and shall include a common [waqf] Board established under section 106;
Section 3 (i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 10 / 21 wp6104.16-Judgment.odt which a [waqf] has been created, or by a competent authority, to be the mutawalli of a [waqf] and includes any person who is a mutawalli of a [waqf] by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any [waqf] or [waqf] property:
Section 3 (r) "waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable.....
Section 32. Powers and functions of the Board.--(1) Subject to any rules that may be made under this Act, the general superintendence of all [auqaf] in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the [auqaf] under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such [auqaf] were created or intended : Provided that in exercising its powers under this Act in respect of any [waqf], the Board shall act in conformity with the directions of the [waqf], the purposes of the [waqf] and any usage or custom of the [waqf] sanctioned by the school of Muslim law to which the [waqf] belongs. ......
36. Registration.-- (1) Every [waqf], whether created before or after the commencement of this Act, shall be registered at the office of the Board.
(2) Application for registration shall be made by the mutawalli :
Provided that such applications may be [made by the waqf] or his descendants or a beneficiary of the [waqf] or any Muslim belonging to the sect to which the [waqf] belongs.
(3) to (7) ...........
(8) In the case of [auqaf] created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of [auqaf] created after such commencement, within three months from the date of the creation of the [waqf] :::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 :::
11 / 21 wp6104.16-Judgment.odt Provided that where there is no Board at the time of creation of a [waqf], such application will be made within three months from the date of establishment of the Board.
Section 41. Power to cause registration of [waqf] and to amend register.-- The Board may direct a mutawalli to apply for the registration of a [waqf], or to supply any information regarding a [waqf] or may itself cause the [waqf] to be registered or may at any time amend the register of [auqaf].
Section 50. Duties of mutawalli.-- It shall be the duty of every mutawalli--
(a) to carry out the directions of the Board in accordance with the provisions of this Act or of any rule or order made thereunder;
(b) to furnish such returns and supply such information or particulars as may from time to time be required by the Board in accordance with the provisions of this Act or of any rule or order made thereunder;
(c) to allow inspection of [waqf] properties, accounts or records or deeds and documents relating thereto;
(d) to discharge all public dues; and
(e) to do any other act which he is lawfully required to do by or under this Act.
Section 60. Extension of time.-- The Board may, if its is satisfied that it is necessary so to do, extend the time within which any act is required to be done by the mutawalli under this Act.
Section 61. Penalties.--(1) If a mutawalli fails to--
(a) apply for the registration of a [auqaf];
(b) furnish statements of particulars or accounts or returns as required under this Act;
(c) supply information or particulars as required by the Board;
(d) allow inspection of [waqf] properties, accounts, records or deeds and documents relating thereto;
(e) deliver possession of any [waqf] property, if ordered by the Board or Tribunal;
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(f) carry out the directions of the Board;
(g) discharge any public dues; or
(h) do any other act which he is lawfully required to do by or under this Act;
he shall, unless he satisfies the court or the Tribunal that there was reasonable cause for his failure, be punishable with fine which may extend to [ten thousand rupees for non-compliance of clauses (a) to
(d) and in case of non-compliance of clauses (e) to (h), he shall be punishable with imprisonment for a term which may extend to six months and also with fine which may extend to ten thousand rupees].
12. A bare perusal of Section 36(8) quoted above shows that it provides for limitation of three months for moving an application for registration of a waqf. The starting point of limitation of the said period of three months, for a waqf created prior to commencement of the Act, is the date of commencement of the Act and in the case of a waqf created after commencement of the Act, the date of creation of the waqf. It is also provided that where there is no Board at the time of creation of waqf, starting point of limitation of three months would be the date of establishment of the Board. Since the word 'shall' has been used in Section 36(8) of the Act, it has been emphasized on behalf of the petitioner that the said period of limitation is mandatory and it cannot be deviated from. According to the petitioners, since Section 36 of the Act, pertaining to registration of auqaf by application is a complete ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 13 / 21 wp6104.16-Judgment.odt Code in itself, the respondent No.1 waqf Board is strictly bound by the said period of limitation and no application for registration of a waqf can be entertained beyond the said period. At first blush, the said argument appears to be attractive, but on further consideration of the matter, particularly in the backdrop of the provisions of the said Act and the scheme envisaged therein, which provides that the Act itself has been enacted for proper administration of auqaf and matters connected therewith, it becomes clear that the said argument, if accepted, would run counter to the objects and purposes of the said Act.
13. By now it is trite law that purposive interpretation of a statute is to be preferred when the literal interpretation appears not to be in harmony with the basic purpose of the enactment. In the case of New India Assurance Co. Ltd. vs. Nusli Neville Wadia reported in (2008) 3 SCC 279, the Hon'ble Supreme Court in the context of the principle of purposive interpretation of a statute has held as follows :-
"51. ................ With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/author. So done, the rules of purposive construction have to be ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 :::
14 / 21 wp6104.16-Judgment.odt resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra).
52. Barak in his exhaustive work on "Purposive Construction" explains various meanings attributed to the term "purpose". It would be in the fitness of discussion to refer to Purposive Construction in Barak's words :
"Hart and Sachs also appear to treat 'purpose' as a subjective concept. I say 'appear' because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity:
First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non- rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably."
14. This position of law has been followed by the Hon'ble Supreme Court in the case of Jogendra Yadav and others vs. State of Bihar and another reported in (2015) 9 SCC
244. In the case of Vijay Kumar Mishra and another vs. High Court of Judicature at Patna and others reported in (2016) 9 SCC 313, the Hon'ble Supreme Court has held as follows :-
"25. It is a settled principle of rule of interpretation that one must have regard to subject and the object for which the Act is enacted. To interpret a Statue in a reasonable manner, the Court must place itself in a chair of reasonable legislator/author. So done, the rules of purposive construction have to be ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 15 / 21 wp6104.16-Judgment.odt resorted to so that the object of the Act is fulfilled. Similarly, it is also a recognized rule of interpretation of Statutes that expressions used therein should ordinarily be understood in the sense in which they best harmonize with the object of the Statute and which effectuate the object of the legislature."
15. In the case of Kunal Kumar Tiwari alias Kunal Kumar vs. State of Bihar and another reported in (2018) 16 SCC 74, the Hon'ble Supreme Court has held as follows :-
"8. Before we analyze the case at hand, first a word on interpretation. It is well-settled legal proposition that in interpreting a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) should be preferred to an interpretation that would not promote the object."
16. Keeping the said position of law pertaining to purposive interpretation of statutes in mind, this Court needs to examine the rival contentions raised by the parties in the context of the aforesaid question framed for consideration. A perusal of the above quoted provisions shows that mutawalli is a person appointed to perform duties specified in the said Act in furtherance of the intention and object of the waqf, which is a permanent dedication of properties for any purpose recognized by Muslim law as pious, religious or charitable. The respondent No.1 waqf Board has responsibility under Section 32 of the Act for general superintendence of auqaf and to ensure that the ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 16 / 21 wp6104.16-Judgment.odt objects and purpose for which such waqf is created or intended are achieved. It is in this backdrop, that the aspect of registration of waqf needs to be appreciated. In the present case, the Court is concerned with application for registration of waqf moved by mutawalli. Under Section 36(8) of the said Act, such application moved by the mutawalli has to be made within the aforesaid period of limitation of three months. A perusal of Section 50 of the said Act, quoted above, shows that mutawalli is required to carry out and perform specific duties enumerated in clauses (a) to (d) of Section 50 and under the residuary clause (e), the mutawalli is required to perform any other act which he is lawfully required to do by or under the said Act.
17. Section 61 of the said Act provides for penalties to be imposed on the mutawalli in case he fails to perform the duties enumerated in clauses (a) to (h) thereof. It is significant that clause (a) of Section 61 of the Act specifies that applying for registration of waqf is also a duty of the mutawalli. Clause (h) of Section 61 of the Act is also a residuary clause enjoining the mutawalli to perform such other acts that he is required to do by or under the aforesaid Act. Apart from this, Section 41 of the said Act gives power to the respondent No.1 waqf Board to ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 17 / 21 wp6104.16-Judgment.odt direct a mutawalli to apply for registration of a waqf. Thus, not only is the mutuwalli required to perform duties under the provisions of the said Act, but, on a direction given under Section 41 of the said Act by the waqf Board, he has to apply for registration of a waqf. A proper reading of Section 36 of the said Act, along with above referred provisions would show that the mutawalli is lawfully required to apply for registration of a waqf within the period of limitation of three months prescribed under Section 36(8) of the said Act. In this backdrop, Section 60 of the Act becomes pivotal, because it specifically grants power to the waqf Board to extend time for the mutawalli to do an act which is required to be done by the mutawalli under the said Act. On a conjoint reading of the aforesaid provisions in a harmonious manner and by preferring an interpretation that would promote the purpose and object of the Act, rather than an interpretation that would not promote such object and purpose, it becomes clear that a power has to be read in the waqf Board to grant extension of the period prescribed under Section 36(8) of the said Act for making of an application for registration of waqf by mutawalli. Any other interpretation, or an absolutely strict and literal interpretation as canvased by the petitioners ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 18 / 21 wp6104.16-Judgment.odt would run counter to the object and purpose of enactment of the said Act.
18. While supporting contentions raised on behalf of the petitioners, the learned counsel emphasized upon the view adopted by learned Single Judge of this Court in the case of Mohd. Ansar Salik (supra). In paragraph 12 of the said judgment it was held as follows :-
"12. It is evident, the legislation did not contemplate relaxation and condonation of limitation in making an application for registration by any Muslim belonging to the sect concerned. The law mandates, the rigour of limitation will prevail to be strictly adhered to no-cognizance could be taken in the eye of law if there is bar in terms of section 36(8) of making the application. Thus, power of relaxation of the period of limitation, is not indicated anywhere. The creation of statute is naturally unknown to common law."
19. 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 the Act. It was not brought to the 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 the mutawalli to perform duties required to be done by the mutawalli under the said Act. As noted above, denying consideration of application for registration of waqf beyond the ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 19 / 21 wp6104.16-Judgment.odt period of three months specified in 36(8) of the said Act would not enure to the benefit of any of the stakeholders under the said Act, apart from the same operating counter to the objects and purpose of the Act. The scheme of the Act shows that registration of waqfs is encouraged so that a register of auqaf is maintained by the respondent No.1 waqf Board, so as to ensure proper superintendence of waqf properties.
20. 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 waqf property requiring registration. Although the learned counsel appearing for contesting respondents No.7 to 14 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.
21. 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 (C) No.14399/2010, challenging the said judgment of the learned Single Judge of ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 20 / 21 wp6104.16-Judgment.odt this Court in the case of Mohd. Ansar Salik (supra) was dismissed on 13/01/2016, thereby confirming the said judgment. But, as per settled law, recently reiterated by the Hon'ble Supreme Court in the case of Khoday Distilleries Ltd. vs. Shri. Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376, a non-speaking order or speaking order refusing special leave to appeal does not attract the doctrine of merger. A perusal of the order dated 13/01/2016 passed by the Hon'ble Supreme Court in Special Leave Petition (C) No.14399/2010, shows that it is a non-speaking order refusing special leave to appeal. Therefore, the doctrine of merger does not apply and this Court could certainly go into the question as to whether judgment of the learned Single Judge of this Court in Mohd. Ansar Salik (supra) lays down the correct position of law.
22. In view of the foregoing discussion, it becomes evident that the period specified in Section 36(8) of the said Act, although lays down specific time period for making an application for registration of waqf, the waqf Board clearly has power to grant extension to the mutawalli to move such an application beyond the said specified period by exercising power under Section 60 of the Act, particularly when the Board has power under Section 41 ::: Uploaded on - 18/12/2019 ::: Downloaded on - 19/12/2019 05:50:33 ::: 21 / 21 wp6104.16-Judgment.odt thereof to direct a mutawalli to apply for registration of a waqf. Therefore, the question referred for consideration is answered in the affirmative and it is held that the waqf Board has power to grant extension of time beyond the period prescribed in Section 36(8) of the said Act for making an application for registration of waqf by a mutawalli. Consequently, it is held that the judgment of the learned Single Judge of this Court in the case of Mohd. Ansar Salik (supra) does not lay down good law.
23. In view of the answer given above to the specific question referred to this Court, the writ petition be now placed before the appropriate Bench for further consideration.
JUDGE JUDGE
KOLHE/P.A.
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