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2019 DIGILAW 2403 (BOM)

Zahidabi v. Maharashtra State Board of Waqf

2019-10-18

A.S.CHANDURKAR

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JUDGMENT : A.S. Chandurkar, J. The challenge raised in the present writ petition is to the order passed by the learned Principal District Judge on 04/08/2016 in Waqf Petition No.5/2006. By the order dated 15/01/2005 the Maharashtra State Board of Waqf has been pleased to register Hazrat Syed Fazle Mohammad Shah Pappal Baba, Umrer, Nagpur under Section 36 of the Wakf Act, 1995 (for short, the said Act) as a "Waqf Institution". That order passed by the Board has been maintained in proceedings under Section 83(2) of the said Act by the impugned order. 2. One of the grounds of challenge raised on behalf of the petitioners to the impugned judgment involves consideration of the question as to whether an application for registration of a Waqf if made beyond the period prescribed by Section 36(8) of the said Act is liable to be considered as having been made in accordance with law. According to the learned counsel for the petitioners the provisions of Section 36(8) of the said Act are mandatory in nature and it is necessary to make an application for registration of a auqaf within three months from the creation of the Waqf. In that regard reliance is placed on the judgment of learned Single Judge in Mohd. Ansar Salik and ors. vs. Shaikh Hamid Babumiya Inamdar and ors., (2010) 5 MhLJ 607 wherein it has been held that under provisions of Section 36(8) of the said Act there is no relaxation provided in the statute and the time framed prescribed needs to be mandatorily adhered to. As in the present case such application for registration was made beyond the stipulated period the Board had no jurisdiction to register the Waqf. It is further submitted that the reliance placed on the provisions of Section 61 of the said Act was inconsequential and therefore the finding recorded that the Waqf was registered within limitation was erroneous. Reference is also made to the decision in M.P. Wakf Board Versus Subhan Shah (Dead) by LRs & Others, (2006) 10 SCC 696 to draw necessary support. 3. On the other hand learned counsel for the contesting respondents while supporting the impugned judgment have referred to various other provisions of the said Act to urge that making an application for registration of the Waqf within period of three months from its creation was not mandatory but it was directory. 3. On the other hand learned counsel for the contesting respondents while supporting the impugned judgment have referred to various other provisions of the said Act to urge that making an application for registration of the Waqf within period of three months from its creation was not mandatory but it was directory. Section 60 of the said Act permits the Board to extend the time to do any act that is required to be done by the mutawalli under the said Act. Though the mutawalli is required to apply for registration within the time prescribed by Section 36(8) of the said Act, if such application is not made within the period of three months as required, the Board could if it is so satisfied extend the time for making an application for registration. It is urged that since the learned Single Judge in Mohd. Ansar Salik and ors. (supra) failed to notice various other provisions of the said Act empowering the Board to act accordingly, the said judgment was rendered per incuriam. It is therefore submitted that the Board on being satisfied rightly directed registration of the Waqf. 4. The question whether the Waqf was registered within time permitted by Section 36(8) of the said Act or whether the time to apply for such registration could be extended beyond the period prescribed arises in the present writ petition. The document acknowledging creation of the Waqf is dated 26/11/1996. According to the respondent Nos.7 to 14 the application to register the Wakf was filed in the office of the Joint Charity Commissioner, Nagpur on 17/08/1999. Since such application had been made beyond the period prescribed by Section 36(8) of the said Act, it is necessary to consider whether in view of the observations made in Mohd. Ansar Salik and ors. (supra), the registration of the Waqf by the Board beyond the period prescribed is without jurisdiction. 5. Section 36 of the said Act deals with registration of a Waqf. Under Section 36(1) every Waqf whether created before or after the commencement of the said Act is required to be registered at the office of the Board. Under Section 36(2) of the said Act such application for registration has to be made by the mutawalli. 5. Section 36 of the said Act deals with registration of a Waqf. Under Section 36(1) every Waqf whether created before or after the commencement of the said Act is required to be registered at the office of the Board. Under Section 36(2) of the said Act such application for registration has to be made by the mutawalli. Under Section 41 of the said Act the Board can direct a mutawalli to apply for the registration of a Wakf or to supply any information regarding a Waqf amongst other things. Section 50 lays down the duties of a mutawalli and as per Section 50(e) of the said Act it is the duty of every mutawalli to do any other act which he is lawfully required to do by or under this Act. Section 60 of the said Act empowers the Board if it is satisfied that it is necessary to extend the time within which any act is required to be done by the mutawalli under the said Act, to extend such time. Section 61 provides for penalty to be imposed on a mutawalli if he fails amongst other things to apply for registration of any auqaf. 6. From the aforesaid provisions it can be gathered that under Section 36(2) of the said Act an application for registration of a Waqf has to made by a mutawalli. Such application is required to be made within a period of three months from the date of creation of a Waqf. The Board under Section 41 can also direct a mutawalli to apply for registration of a Waqf. If the Board is satisfied that the time within which such registration is required to be applied for should be extended, it can do so under Section 60 of the said Act. It thus becomes clear on reading these provisions that on the Board being satisfied that registration of a Waqf is required to be done and if the same has not been done within the period prescribed by Section 36(8) of the said Act, it can extend the time to do so. It is not the case that the Board is not empowered to extend the time to enable a mutawalli to do any act which he is required to do under provisions of the said Act. Perusal of the decision in Mohd. Ansar Salik and ors. It is not the case that the Board is not empowered to extend the time to enable a mutawalli to do any act which he is required to do under provisions of the said Act. Perusal of the decision in Mohd. Ansar Salik and ors. (supra) indicates that the application for registration of the Waqf was made beyond the period of three months as prescribed by Section 36(8) of the said Act. The Waqf was initially registered as such by an order passed by the Chief Executive Officer of the Sate Board of Waqf. The said order was challenged before the Waqf Tribunal and that challenge was accepted thereby setting aside the order directing registration of the property to be Waqf property. That order passed by the Waqf Tribunal was challenged before this Court. While supporting the order passed by the Waqf Tribunal refusing to register the property it was submitted that in view of provisions of Section 36(8) of the said Act that order did not call for interference as the application for registration was made beyond the prescribed period of three months. It was observed in paragraph 12 of the said judgment as under : "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." It was thus held that provisions of Section 36(8) of the said Act stipulate the limitation of making an application for registration and no relaxation thereto was provided in the statute. The rigours of that provisions were required to be mandatorily adhered to. Though reference was made to the observations in M.P. Wakf Board (supra), the proceedings therein were remanded to the Board for fresh consideration. It is not the ratio of that decision that the period to register a Wakf cannot be extended by the Board. 7. The rigours of that provisions were required to be mandatorily adhered to. Though reference was made to the observations in M.P. Wakf Board (supra), the proceedings therein were remanded to the Board for fresh consideration. It is not the ratio of that decision that the period to register a Wakf cannot be extended by the Board. 7. It thus becomes clear that an application for registration of a Waqf has to be made by a mutawalli and under Section 41 the Board can direct a mutawalli to apply for registration of a Waqf or supply any information regarding a Wakf amongst other things. While Section 50(e) of the said Act holds that it is the duty of every mutawalli to do any act which he is lawfully required to do under the said Act, Section 60 empowers the Board if it is satisfied that it is necessary to extend the time during which any act is required to be done by the mutawalli under the said Act. On reading these provisions together, it prima facie becomes clear that the Board has been empowered under Section 60 of the said Act to extend the time within which any act is required to be done by the mutawalli under the said Act. If therefore Section 36(2) requires an application for registration to be made by the mutawalli within the time stipulated by Section 36(8) of the said Act, the Board is also empowered to extend the time within which the mutawalli has to apply for registration under Section 36(2) of the said Act. The object of the said Act being to provide for better administration of auqafs or for matters connected therewith, the provisions of the said Act permit consideration of an application for registration of an auqaf, even if made beyond the period prescribed by Section 36(8) of the said Act on the Board being satisfied in that regard. 8. For aforesaid reasons therefore with respect I am unable to agree with the observations made in Mohd. Ansar Salik and ors. (supra) that there can be no relaxation in the period of limitation as prescribed for making an application for registration of a Waqf. 8. For aforesaid reasons therefore with respect I am unable to agree with the observations made in Mohd. Ansar Salik and ors. (supra) that there can be no relaxation in the period of limitation as prescribed for making an application for registration of a Waqf. In that view of the matter the papers be placed before the Honourable the Chief Justice to consider referring the following question to a larger Bench in view of the disagreement as expressed : "Whether the period as prescribed by Section 36(8) of the Waqf Act, 1995 for making an application for registration of the Wakf can be extended by the Wakf Board if such application is made beyond the period prescribed therein ?" Order accordingly.