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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 581 OF 2006
Hanifsha Baba Darga E. Darbar,
aged 93 yrs. Occu. Chela Disciple
who succeeds Baba, the founder
of Trust, R/o Chikhli, Distt. Buldhana. APPELLANT.
VERSUS
1.Salimkhan Karimkhan.
2. Haji Manwarkhan Sardarkhan.
3. Shekhar Rajabhau Bondre.
4. Mohd. Harun Haji Sk. Ayub.
5. Sadhekhan Baldarkhan
6. Syed Amir Syed Gulam.
7. Syed Ayhaj Syed Husain.
8. Haji Mohd. Idris Mohd. Ismail Patel.
9. Abdul Rashid Noor Mohammad.
All trustees of Khairullasha Darga,
Chikhli, R/o Chikhli, Distt. Buldhana.
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10. Charity Commissioner,
State of Maharashtra, Bombay.
11. Wakf Board, Civil Line, Nagpur. RESPONDENTS.
Shri.R. L. Khapre, Counsel for the appellant.
Shri. A. J. Thakur, Counsel for the respondents1 to 7.
Shri Firdoj Mirza Counsel for respondent No.11.
CORAM: C. L. PANGARKAR J.
Date: 7th OCTOBER 2008.
ORAL JUDGMENT:
This is a second appeal against the order of Additional
District Judge who confirmed the order of Assistant Charity
Commissioner framing a Scheme of the trust known as Khairullasha
Darga.
2. Respondents 1 and 2 herein filed an application under
Section 50-A of the Bombay Public Trust Act before the Assistant
Charity Commissioner for settlement of a Scheme in respect of
Khairullasha Darga Chikhli district Buldhana. Applicants contended
that applicant No.1 was a Trustee of the Trust and No.2 was the
person having interest in the said Trust. There were in all 9 trustees
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and out of them three had resigned and three trustees had died. There
was a Meeting on 20.02.1999 and the vacancies were filled in. As a
result the Change Report was filed which was registered as Inquiry
Case No. 259 of 1999. The said Change Report was admittedly
allowed. It is contended by the applicants before the Charity
Commissioner that there is no Scheme for proper management of the
trust and there is no proper mode of succession. They therefore
prayed that a Scheme be framed. Learned Assistant Charity
Commissioner framed a Scheme for the said trust and appointed 9
persons as Trustees. Being aggrieved by that order one Hanifshah
filed an appeal before the District Judge Buldhana. District Judge
Buldhana dismissed the appeal and confirmed the finding of the
Assistant Charity Commissioner.
3. Being aggrieved by that order Hanifsha has preferred this
appeal. The appeal was admitted by this Court on the following
substantial question of law:
Whether the Assistant Charity
Commissioner erred in entertaining an application
for framing a Scheme and whether the Additional
District Judge also erred in entertaining and
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deciding the appeal against the order of the
Assistant Charity Commissioner in view of the
provisions of Section 32 of the Wakf Act, 1995?
4. I have heard the learned counsel for the appellant
and the respondents.
5. Shri Khapre learned counsel for the appellant contended
that the orders of both the Courts below are without jurisdiction. He
submits that the Trust Khairullasha Darga besides being a Trust is a
Wakf and as such now governed by the Wakf Act, 1995 which came
into force from 01.01.1996. He submits that proceedings with regard
to any Wakf now need to be taken up under this new Act and only
before the forums provided under the Act. Application under Section
50-A of the Bombay Public Trust Act was filed by the respondents
before the Charity Commissioner on 25.05.1999. Obviously the
application under Bombay Public Trust Act was filed after coming into
force of the Wakf Act 1995. He submits that by virtue of provisions of
Section 112 of the Wakf Act, all Acts are deemed to be repealed and
therefore Bombay Public Trust Act is not applicable to the Wakf. After
having gone through the provisions of Section 112(3) of the Wakf Act
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it is clear that as far as applicability of the Bombay Public Trust Act to
Wakf is concerned the said Act stands repealed. The result of such
repeal is that all Wakfs are now governed by Wakf Act and whosoever
wants to get his grievance redressed for or against the Wakf has to do
it under the Wakf Act. Respondents therefore had no right to
approach the Charity Commissioner under Section 50-A nor did the
Charity Commissioner have jurisdiction to entertain the application
under Section 50-A.
6. There is yet another reason why Charity Commissioner
could not assume jurisdiction. If the Scheme of the Wakf Act is seen it
would be clear that it makes a remedy as well Forum available under
the Act. The forum i.e. the Tribunal or Board can grant all those
reliefs which can be granted by the Charity Commissioner. Section
32(2)(d)(g) makes it clear that the party can approach a Board for
settlement of Scheme for Wakf and it can also appoint Mutawallis i.e.
Trustees.
7. Upon consideration of provisions of law as discussed above
it is clear that both Courts fell in error in assuming jurisdiction in
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framing a Scheme of a Wakf. The orders having been passed without
jurisdiction are in fact void. Yet they need to be set aside and they are
set aside. Appeal is allowed. Orders passed by the Courts below are
set aside. No order as to costs.
JUDGE
svk
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