ZAHIDABI Vs. MAHARASHTRA STATE BOARD OF WAQF

JUDGEMENT

(1.) 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. 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.