Fahimuddin S/O Naseemuddin Peerzade vs. Zia Ul Hasan Waris Ali Peerzada& Ors.

Order - Status 5: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 523 OF 2011 Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. Sagheer A. Khan i/b Judicature Law Associates for the petitioner. CORAM : D.G. KARNIK, J DATE : 8TH AUGUST 2011 P.C. : Leave to amend and substitute Exhibit-A to the revision application. After the amendment is carried out, issue notice to the respondents subject to payment of process and furnishing of copies. (D.G. KARNIK, J.)

Order - Status 25: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 523 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders. Mr. Hassnain Kazi i/b Judicare law Associate,Advocates for the petitioner/applicant. Mr Saeed Akhtar, Advocate for Respondent Nos 1 to 8. Mr.R.M.Momin, Advocate for Respondent no.9. CORAM: R.G.KETKAR, J. DATE : 24/01/2013 PC: Heard Mr.Jassnain Kazi, learned counsel for the petitioner, Mr Saeed Akhtar, learned counsel for respondent nos. 1 to 8 and Mr R.M.Momin, learned counsel for respondent no.9. My Saeed Akhtar invited my attention to Suit No.122 of 2009 instituted by respondent nos. 1 to 8 before the Maharashtra State Wakf Tribunal at Aurangabad. He submitted that defendant no.2- Alimuddin s/o Rukhnoddin Peerzade is not impleaded in the present proceedings. In view of this, learned counsel for the petitioner seeks leave to implead Alimuddin s/o Rukhnoddin Peerzade as respondent no.10. Amendment shall be carried out forthwith. List the petition for admission on 7.2.2012. (R.G.KETKAR, J.)

Order - Status 31: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 523 OF 2011 Fahimuddin s/o Naseemuddin Peerzade ..Applicant. Vs. Zia ul Hasan Waris Ali Peerzada & Ors. ..Respondents. Mr. Sagheer A Khan i/b Judicare Law Associates for the Applicant. Mr. Saeed Akhtar for Respondent nos.1 to 8. Mr. Mujahid Ansari h/f Mr. R.M. Momin for Respondent no.9. CORAM : K.K.TATED, J. DATED : 05/04/2013. PC : 1 Heard learned counsel for the parties. 2 By this Civil Revision Application, Applicant – original Defendant no.1 challenges the order dated 20th April, 2011 passed by the Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad below Exhibit 18 in Wakf Suit no.122 of 2009 rejecting Petitioner's Application dated 23rd November, 2009 for holding that the Tribunal has no jurisdiction to entertain and try the Suit no.122 of 2009 being barred by law and the same to be rejected. 3 A few facts of the matter are as under: On 10th January, 1975 Dargah Peer Sayyed Sadiq Shah Hussaini, Nashik City registered under the Bombay Public Trusts Act having PTR No.B184 (Nashik). Thereafter, the some interested persons filed an Application in the year 1979 for framing scheme being Application no.24 of 1979 under section 50A(1) of the Bombay Public Trusts Act, 1950. Pursuant to the order passed by the Deputy Charity Commissioner dated 21st August, 1986 a scheme for the management and administration of the said Trust was framed. As per the said scheme, the Applicant was appointed as a Trustee being first Board of Trustees. Thereafter, Trust Application no.402 of 1986 came to be filed under Section 72 of the Bombay Public Trusts Act, 1950 for setting aside the judgment and order passed in Trust Application no.24 of 1979 passed by the Deputy Charity Commissioner on 21st August, 1986 and to set aside the Scheme. The said Trust Application is pending. During the pendency of the said Application, Respondent nos.1 to 6 – original Plaintiffs filed Suit no.122 of 2009 before the Presiding Officer, Maharashtra State Wakf Tribunal at Aurangabad seeking perpetual injunction restraining Applicant – original Defendant no.1 from causing obstruction and/or 2/7 interference in the supervision and management and also from causing obstruction and/or interference in the performance of Sandal & Urs cermonies of the Wakf Institution Darga Peer Syed Saddique Hussaini situated at Old Nashik commonly known as Badi Darga. 4 In the said suit the Applicant preferred an Application dated 23rd November, 2009 (Exhibit 18) for following reliefs: "This application may kindly be allowed and as this Hon'ble Tribunal is having no jurisdiction to try and entertain the present suit being barred by law, therefore, it deserves to be rejected and oblige." 5 The said Application was rejected by the Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad by impugned order dated 20th April, 2011. Hence, present Civil Revision Application. 6 The learned counsel appearing on behalf of the Applicant submits that the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad failed to appreciate that when the proceeding for setting aside the scheme is pending before the competent 3/7 authority i.e. in the Court of District Judge at Nashik in Trust Application no.402 of 1986, Presiding Officer, Maharashtra State Wakf Tribunal, Aurangabad has no jurisdiction to entertain the Suit no.122 of 2009 and restrain the Applicant from acting as trustee of the said Trust. He further states that the Apex Court in the matter of Board of Wakf, West Bengal and another vs. Anis Fatma Begum and another reported in (2010) 14 SCC 588 held that the proceedings pending before the competent authority on 1st January, 1996 will continue and in that case the provisions of the Wakf Act, 1995 will not be applicable. Para 16 of that authority reads thus: "16 In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the civil court. However, in view of the decision of this Court in Sardar Khan vs. Syed Najmul Hasan (Seth), the Wakf Act will not be applicable to suits/appeals/revisions/ proceedings commenced prior to 111996 when the Wakf Act came into force." 7 He further relied on judgment in the matter of Sardar Khan and Ors vs. Syed Najmul Hasan (Seth) and Ors. reported in AIR 2007 SC 1447, in this authority also the Apex Court taken similar view. Para 14 of that authority reads thus: "14 On a conjoint reading of subsection (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996 i.e. coming into force of the Wakf Act, 1995. Therefore, the view taken by the learned Single Judge was not correct in the case of Syed Inamul Hag Shah (supra). Hence, in view of the above discussion, we are of the view that the learned Single Judge has gone wrong in relying on the decision rendered by the Single Judge in the case of Syed Inamul Hag Shah (supra). Consequently, the impugned order passed by the learned Single Judge is set aside and the matter is remitted back to the High Court for deciding the appeal in accordance with law, expeditiously." 8 On the basis of these submissions the learned counsel appearing on behalf of the Applicant states that the Maharashtra Wakf Tribunal has no jurisdiction to entertain the Suit no.122 of 2009. 9 On the other hand, the learned counsel appearing on behalf of Respondent nos.1 to 8 vehemently opposed the present Civil Revision Application. He submits that in view of Section 112 of the Wakf Act, 1995 all provisions are applicable wherever the question arises whether the property and/or any dispute comes under the Wakf Act. He further states that the Applicant was not appointed as a Trustee according to the Scheme framed by the Deputy Charity Commissioner. He states that actually the Applicant is from female branch of Sayed Niyamatulla. On the basis of these submissions the learned counsel appearing on behalf of the Respondent nos.1 to 8 states that there is no substance in the present Civil Revision Application. 10 I have heard both the sides at length. 11 It is to be noted that in view of the facts that the challenge of the Scheme is pending before the District Court at Nashik in Trust Application no.402 of 1986 and unless and until a competent Court declares that the Applicant ceases to be trustee of the said Trust, the Tribunal has no jurisdiction to pass any restraining order from taking part in the management of the said Trust. Even considering the authority in the matter of Board of Wakf, West Bengal & Anr. (supra) and Sardar Khan and others (supra), I am of the opinion that the Applicant has made out case for admission of this Civil Revision Application and interim protection till the hearing and final disposal of the Civil Revision Application. Hence, Civil Revision Application: Admit. 12 Interim relief in terms of prayer clause (c ) which reads thus: "( c ) Pending hearing and final disposal of this Civil Revision Application, this Honorable Court be pleased to stay the proceedings of Wakf Suit no.122/2009 pending before learned Wakf Tribunal at Aurangabad." 13 The learned counsel for the Respondents waive service. (K.K.TATED, J.) katkam