Haji Ismail Haji Habib Musafirkhan-shop Tenant Forum ( Proposed) vs State Of Maharashtra Thru Gp High Court And Ors

Haji Ismail Haji Habib Musafirkhana- } Shop Tenant Forum (Proposed) } Represented by Mr.Fazal Mehmood, } Add : 33, Husainiya Marg (Pakmodiya } Street), Mumbai - 400 003 } Petitioners

versus

1] State of Maharashtra } Through Government Pleader, } Bombay High Court, Mumbai. } } 2] The Charity Commissioner (M.S.) } Off : 3rd Floor, Dharamday Ayukata Bhavan, } Worli, Mumbai : 400 016 } } 3] Haji Ismail Haji Habib Musafirkhana } Trust, } Off Add : Ashoka Shopping Centre, } Ground Floor, Shop No.54, } Opp L.T.Marg Police Station, } Near G.T.Hospital, Mumbai : 400 001 } } 4] Shoeb Zakaria Noorani, } (Trustee of Respondent No.3 Trust), } } 5] Mrs.Sameera Shoeb Noorani, } (Trustee of Respondent No.3 Trust), } Both 4 & 5 R/at : 602, Sunshine CHS, } Building No.-4, New Link Road, } Oshiwara, Andheri (W), } Mumbai - 400 053 } } 6. Mrs.Nafisa Shakir Noorani, } (Trustee of Respondent No.3 Trust), } R/at: 603, Tulip Co-operative Housing } Society, Building No.-4, }

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New Link Road, Oshiwara, Andheri (W), } Mumbai - 400 053. } } 7] Shakeel Zakaria Noorani } (Trustee of Respondent No.3 Trust) } Add : Ashoka Shopping Centre, } Ground Floor, Shop No.54, } Opp. L.T.Marg Police Station } Near G.T.Hospital, Mumbai : 400 001 } } 8] Saifee Burhani Upliftment Trust, } Off Add: Ezzy Hall, Ground Floor, } 47/49 Raudat Tahera Street, } Bhendi Bazar, Mumbai -400 003 } } 9] Maharashtra State Board of Wakfs } Through its C.E.O., Panchakki, Aurangabad } Respondents

Mr.S.M.Gorwadkar-Senior Counsel a/w Mrs.Sana Y. Baugwala, Mr.Ritwik Joshi i/b Baugwala Yusuf Suleman for the Petitioners.

Mr.B.V.Samant-AGP for Respondent Nos.1 and 2 (State).

Mr.Anirban Tripathy for Respondent Nos.3 to 6.

Mr.Raman Paranjape for Respondent No.7.

Mr.Virag Tulzapurkar-Senior Counsel a/w Soumya Shrikrishna-Counsel, Chirag Kamdar-Counsel, Denzil, Nanki, Apeksha, Paridhi i/b Wadia Ghandy & Co. for Respondent No.8.

Ms.Divya Parab i/b Mr.R.Momin for Respondent No.9.

CORAM :- S. C. DHARMADHIKARI & R.I.CHAGLA, JJ.

DATE :- DECEMBER 11, 2019 Page 2 of 106 M.M.Salgaonkar

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ORAL JUDGMENT:- (Per S.C.Dharmadhikari, J.)

1. By the earlier orders, this writ petition was placed before

this Division Bench.

2. After the earlier orders were brought to the notice of both

sides, we indicated to them that this writ petition will be disposed

of by this Bench. On their agreement, recorded on 19 th November,

2019, this writ petition was placed alongwith other matters and

after the other matters were disposed of, we placed this matter

before us.

3. Since all pleadings are complete and detailed arguments

have been canvassed, this writ petition is disposed of by this

judgment and order.

4. Rule. Respondents waive service. By consent, Rule is made

returnable forthwith.

5. In this writ petition under Article 226 of the Constitution of

India, the petitioners challenge the order dated 26 th November,

2015, copy of which is at Exhibit 'B' to the petition. That order is

passed by the Charity Commissioner, Maharashtra State in

Application No.48 of 2012.

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6. The application was moved seeking sanction of the Charity

Commissioner under Section 36(1)(a) of the Maharashtra Public

Trust Act, 1950 (for short, "the MPT Act"). The Trust in question

is, "Haji Ismail Haji Habib Musafirkhana Trust", P.T.R.No.B/140

(Mumbai). The order impugned in this petition allows this

application and directs as under:

"1) Application is allowed.

2) Sanction is hereby accorded under Section 36(1)

(a) of the Maharashtra Public Trusts Act, 1950 to the trustees of Haji Ismail Haji Habib Musafirkhana Trust, P.T.R.No.B/140 (Mumbai) to sell the property i.e. Sanadi land with standing structure thereon situated at the junction of Yacub Street, Sheikh Abdulla Pakmodia Street and Edulji Cooper 2nd Street, Mumbai admeasuring 842.82 sq.mtrs. equivalent to 961 square yards or thereabouts bearing Cadastral Survey No.4315 of Bhuleshwar Division, Mumbai on 'as is where is' basis to Saifee Burhani Upliftment Trust, P.T.R.No.E/25619/Mumbai for a consideration of Rs.1,10,00,000/- (Rupees One Crore Ten Lakhs only) on the following terms and conditions :-

i) The purchaser shall pay amount of Rs.1,10,00,000/-

(Rupees One Crore Ten Lakhs only) by crossed cheque/demand draft to the Trust.

ii) The sale deed shall be executed within a period of six months form the date of this order.

iii) All expenses including stamp duty, registration charges, etc. shall be borne by the purchaser.

iv) The entire amount of sale proceeds shall be held as trust corpus and kept intact for ever in the form of investment in fixed deposits yielding monthly interest or otherwise in any Nationalized Bank and should not be withdrawn without prior permission of this Authority. Interest amount may be withdrawn.

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v) The interest accrued on the fixed deposits shall be utilized only for the purpose and objects of the trust.

vi) This permission shall be subject to all the relevant laws and rules applicable to the transaction and the property as well.

Vii) The trustees are directed to file necessary change report after completion of the sale transaction."

7. The facts necessary to appreciate the arguments of both

sides, are briefly set out herein below.

8. Respondent No.3 before us is a Trust and we say this

because the record indicates that it has been assigned a

registration number. It has been assigned the number B-

140(Mumbai) by the office of the Charity Commissioner,

Maharashtra State, Mumbai exercising powers under the then

Bombay Public Trusts Act, 1950, now the MPT Act. The Trust is

known as "Haji Ismail Haji Habib Musafirkhana Trust". Annexure

'A' to the application preferred before the Charity Commissioner,

Maharashtra State on which the impugned order has been passed

is a copy of this Registration Certificate. Annexure A-1 is the

certified true copy of one Register of Public Trust, namely,

Schedule 1 as prescribed under Rule 5 of Bombay/Maharashtra

Public Trusts Rules, 1951.

9. Respondent No.1 is the State of Maharashtra, whereas,

respondent No.2 is the Charity Commissioner, Maharashtra State.

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Respondent Nos. 4 to 7 are the trustees of the Trust (respondent

No.3) and respondent No.8 is another Trust governed by the MPT

Act and having its office at the address mentioned in the cause

title. The newly added respondent No.9 is the Maharashtra State

Board of Wakfs through its Chief Executive Officer.

10. Application No.48 of 2012 was filed invoking the powers of

the Charity Commissioner under Section 36(1)(a) of the MPT

Act. Section 36 reads as under :-

"36(1) Notwithstanding anything contained in the instrument of trust-

(a) no sale, exchange or gift of any immovable property, and

(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building,

belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust;

(c) if the Charity Commissioner is satisfied that in the interest of any public trust any immovable property thereof should be disposed of, he may, on application, authorise any trustee to dispose of such property subject to such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust.

Provided that, the Charity Commissioner may, before the transaction for which previous sanction is given under clause (a), (b) or (c) is completed, modify the conditions imposed thereunder, as he deems fit;

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Provided further that, if such condition is of time-limit for execution of any contract or conveyance, then application for modification of such condition shall be made before the expiry of such stipulated time.

(1A) The Charity Commissioner shall not sanction any lease for a period exceeding thirty years under this Act.

(2) The Charity Commissioner may revoke the sanction given under clause (a) or clause (b) of sub-section (1) on the ground that such sanction was obtained by fraud or mis-representation made to him or by concealing from the Charity Commissioner, facts material for the purpose of giving sanction; and direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation (or such further period not exceeding in the aggregate one year as the Charity Commissioner may from time to time determine) as may be specified in the direction for the recovery of the property.

Provided that, no sanction shall be revoked under this section after the execution of the conveyance except on the ground that such sanction was obtained by fraud practiced upon the Charity Commissioner before the grant of such sanction.

(3) No sanction shall be revoked under this section unless the person in whose favour such sanction has been made has been given a reasonable opportunity to show-cause why the sanction should not be revoked.

(4) If, in the opinion of the Charity Commissioner, the trustee has failed to take effective steps within the period specified in sub-section (2), or it is not possible to recover the property with reasonable effort or expense, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay compensation to the trust equivalent to the advantage so assessed.

(5) Notwithstanding anything contained in sub-section (1), in exceptional and extraordinary situations where the absence of previous sanction contemplated under sub-section (1) results in hardship to the trust, a large body of persons or a bona fide purchaser for value, the Charity Commissioner may grant ex-post-facto sanction to the transfer of the trust property, effected by the trustees prior to the date of commencement of the

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Maharashtra Public Trusts (Second Amendment) Act, 2017, if he is satisfied that,-

(a) there was an emergent situation which warranted such transfer,

(b) there was compelling necessity for the said transfer,

(c) the transfer was necessary in the interest of trust,

(d) the property was transferred for consideration, which was not less than prevalent market value of the property so transferred, to be certified by the expert,

(e) there was reasonable effort on the part of trustees to secure the best price,

(f) the trustees actions, during the course of the entire transaction, were bonafide and they have not derived any benefit, either pecuniary or otherwise, out of the said transaction, and

(g) the transfer was effected by executing a registered instrument, if a documents is required to be registered under the law for the time being force.

Explanation.- For the purposes of sub-section (5), the term "the Charity Commissioner" shall mean only the Charity Commissioner appointed under section 3."

11. A perusal of this provision reveals that alienation of

immovable property of a Public Trust is permissible, but for that a

previous sanction of the Charity Commissioner has to be

obtained. The legislature has deliberately inserted the words

"previous sanction of the Charity Commissioner". Therefore,

notwithstanding anything contained in the instrument of Trust,

no sale, exchange or gift of any immovable property and no lease

for a period exceeding ten years in the case of agricultural land or

for a period exceeding three years in the case of non-agricultural

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land or a building belonging to a Public Trust, shall be valid

without the previous sanction of the Charity Commissioner. The

section was amended by addition of the words "sanction may be

accorded subject to such condition as the Charity Commissioner

may think fit to impose, regard being had to the interest, benefit

or protection of the Trust". Clause (c) sub-section (1) of Section

36 enable the Charity Commissioner to record a satisfaction in

terms thereof. Then this Section was amended by inserting

provisos below clause (c) of sub-section (1) and addition of sub-

section (1A). Sub-section (5) was also added and by which, ex-

post-facto sanction to the transfer of the Trust property, effected

by the trustees prior to the date of commencement of the

Maharashtra Public Trusts (Second Amendment) Act, 2017, can

be obtained provided that the Charity Commissioner is satisfied in

terms of clauses (a) to (g) of sub-section (5) to Section 36.

12. Having thus noted the scheme of the Section, we proceed to

refer to the contents of the application made by the third

respondent-Trust through its trustees to the Charity

Commissioner.

13. In para 1 of this application, there is introduction of the

Trust. In para 2, it is categorically stated that the Trust is

governed by a Scheme framed by this Court in Suit No.741 of

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1944. A certified copy of the said Scheme, which governs the

administration and management of the Trust is annexed and

marked as Annexure-B to the application.

14. Then, it is stated in para 3 that the Board of Trustees of the

Trust are managing and administering the Trust in accordance

with the terms, conditions and provisions contained in this

Scheme. In para 4, it is stated that the main object of the Trust is

to maintain Musafirkhana known as "Haji Ismail Haji

Musafirkhana' situate at Pakmodia Street, Mumbai.

15. Paras 5 to 9 of this application read as under:-

"5. The applicants say that the trust holds the property consists of land with building thereon shown in the plan. A copy of the plan is annexed hereto and marked as ANNEXURE C. The original area of the land as shown in the Schedule of the property incorporated in the Scheme was 961 sq.yards or there about and same is the area shown in the record of the public trusts registration as evidenced in Schedule I. However, from the property card obtained from the Superintendent, Mumbai City Survey and Land Records, the property is now shown as Sq.Yards (1008.00) sq.meters 842.82. A certified Xerox copy of the said property card is annexed hereto and marked as ANNEXURE-D.

6. It is submitted that the property in question is in dilapidated condition and trustees found it extremely difficult to manage, administer and run the trust and to maintain or even repair the building for extreme shortage of funds. In the meeting of the trustees held on 13-12-2011 the resolution was passed to sell the trust property, as the property in question is in dilapidated condition and could not be repaired. A copy of the said Resolution dt.13-12-2011 is annexed hereto and marked as ANNEXURE-D1. The property was declared to be a dangerous condition by the MCGM who had issued

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notice dated 17-5-2007 to vacate the said building. Hereto annexed and marked ANNEXURE-E is the copy of notice dt.17-5-2007. The said property, which is a building of ground plus one and storeys, is and has been fully occupied and encroached upon by half several tenants and trespassers. There is a suit bearing suit no.3299/03 is pending in the Hon'ble High Court at Bombay against the trespassers in the said property and that there is no order passed by any Court or Authority restraining the said Trust from transferring the said properties. The income of trust by way of rent etc. comes to Rs.3,25,773/- per annum which also varies on account of the failure of the tenants to pay the rent whereas the trust has to spend on the statutory outgoings etc. to the tune of about Rs.2,89,365/- per annum. Since the property is in dilapidated condition the Trust also spends around Rs.40,000/- per annum on structural repairs therefore the Trust is incurring losses of Rs.3,592/- per annum out of the said property. Hence, the trustees decided to dispose off the property and invest the amount to be received from the purchaser in fixed deposit in Bank and accrued interest to be received from the Bank should be utilized for the objects of the Trust. The trustees learnt that another public trust known as Saifee Burhani Upliftment Trust, bearing No.E- 25619 (Mumbai) had grand plan scheme for development of a huge area at Mohamedali Road, Bhendi Bazar. The said public trust has a highly prestigious and important mosque situated on the same road namely, Pakmodia Street, Mumbai 400 003. The trustees of this trust approached another trust viz. Saifee Burhani Upliftment Trust registered the Bombay Public Trusts Act, 1950 bearing P.T.R.No.E-25619 (Mumbai), who made an offer by its letter dated 8-12-2009 for purchasing the property at a consideration of Rs.1,10,00,000/- subject to the permission of the Hon'ble Charity Commissioner, Maharashtra State, Mumbai. The offer letter dated 8-12-2009 is annexed herewith and marked ANNEXURE-F.

7. The trustees obtained valuation report from the Govt. Registered Valuer viz.H.Mehta & Associates, who have assessed the valuation of the property at Rs.34,00,000/- whereas trust is getting Rs.1,10,00,000/- from the purchaser viz. Saifee Burhani Upliftment Trust. The said Valuation Report is annexed herewith and marked ANNEXURE-G.

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8. On receipt of the aforesaid offer from Saifee Burhani Upliftment Trust, trustees consider the offer for purchase of the property, which is from another public trust that there is no need whatsoever to issue any public notice or to invite tenders. Since the offer is from another public trust, a trust property would be utilized from the benefit and achievement of the objects of the another public trust. The transaction is not of a commercial nature and therefore commercial rates simply cannot be the criteria or the consideration. The applicants/trustees have therefore, unanimously resolved to accept the offer of Saifee Burhani Upliftment Trust for Rs.1,10,00,000/- on 'as is where is' basis by passing a resolution to that effect in the meeting of the trustees held on 24-12-2011. True copy of the said resolution dated 24-12-2011 is annexed herewith at ANNEXURE-H. Further in the said meeting of the trustees held on 24-12-2011 Trustees authorized Shoeb Zakaria Noorani, one of the trustees of the above trust to enter into MOU and file an application for getting the sanction of the Charity Commissioner, Maharashtra State, Mumbai for sale of the property under Section 36(1)(a) of the Bombay Public Trusts Act, 1950. Therefore, it will be fit and proper and in the interest of justice that the applicants/trustees be permitted to alienate the trust property to Saifee Burhani Upliftment Trust, without insisting publication for sale of the property by giving public notice in the newspapers.

9. An MOU dt.26-12-2011 has been entered into between the applicants/trustees of "Haji Ismail Haji Habib Musafirkhana Trust" and the said Saifee Burhani Upliftment Trust. A true copy of the said MOU dt.26-12- 2011 is annexed herewith and marked ANNEXURE-I."

16. A perusal of these paragraphs shows that the Trust

property is a building on a land belonging to it. That building is in

dilapidated condition and trustees found it extremely difficult to

manage, administer and run the Trust and to maintain or even

repair the building on account of extreme shortage of funds. That

is how, they convened a meeting and passed a Resolution.

Further, there are encroachments in this building and property.

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The trespassers could not be evicted as litigation involves huge

expenditure. Further, a valuation report was obtained by the

trustees and which valuation report says that on account of

encroachments and encumbrances, the value of the Trust

property has diminished to great extent. Then it is stated that an

offer was received from respondent No.8, after which, the

negotiations were held culminating into execution of

Memorandum of Understanding dated 26 th December, 2011, copy

of which is annexed to the application. Thus, the annexures to

the application, include, inter alia, the letters and

communications received from the Municipal Corporation of

Greater Mumbai declaring the building to be dilapidated and

requiring immediate eviction of the occupants, the valuation

report, the copy of Resolution passed by the trustees and the copy

of the Memorandum of Understanding. Thereafter, the necessary

details are filled in the format prescribed by the Rules.

Ultimately, the applicants pray that the third respondent-Trust be

granted permission/sanction under clause (a) of sub-section (1)

of Section 36 of the MPT Act to dispose off the Trust property, on

'as is where is' basis subject to 48 tenants/occupants and the

intending purchaser to be saddled with all the obligations as are

set out in the Memorandum of Understanding.

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17. This application was filed on 13th March, 2012. After all the

procedural formalities were completed, this application was

considered by the Charity Commissioner and after referring to

the contents of this application, the Charity Commissioner, in a

reasoned order, held that the applicants before him are trustees

as per the records maintained in relation to this Trust. The Trust

property is in a dilapidated condition and needs redevelopment.

The Trust will not be able to fund the redevelopment and that is

why the trustees have sought permission to dispose of the

property. The Charity Commissioner noted that another

important factor is that the purchaser (respondent No.8 before

us) is also a Trust headed by respectable persons from Bohra

Community. The object of this respondent No.8-Public Trust is to

uplift the condition of the city and make available residential as

well as the commercial premises to the occupants and residents of

this old building, particularly in the locality in which the subject

Trust property is situate. That is why, the Charity Commissioner

holds that the decision of the trustees to sell the property for

redevelopment is justified. A case of legal necessity to sell the

Trust property is made out. He then concluded, by applying the

principles laid down in several decisions of this Court and the

Hon'ble Supreme Court, that the transaction and deal with this

respondent No.8-Trust is in the interest of the Trust, also in

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interest of the people in the locality and would make the city well

developed. The contents of the valuation report are referred to

and the Charity Commissioner concludes that he finds no reason

to refuse the permission to sell the Trust property to another

Trust. Holding thus, he allows the application.

18. From the record it appears that on 25th June, 2018, the

advocate appearing on behalf of the petitioners-Mrs.Sana Yusuf

Baugwala, gave a notice on behalf of the "Shop Tenants Forum". In

fact, the Forum is a proposed entity, but never registered nor has

any legal status. It is a group of individuals. There were about 26

individuals forming this Forum and represented by one Mr.Abdul

Hamid S. Arbi and Mr.Fazal Mehmood. The notice says that the

group of persons has received from respondent No.8-Trust

communications as also notices which have been issued by the

statutory authorities and in reply to which, the group of persons

says that respondent No.8 is claiming to be the landlord/owner of

the property. Respondent No.8 relies upon the order of sanction

passed by the Charity Commissioner. However, it is stated in

paras 5 and 6 of this notice as under:

"5] That since you claim to be the new Landlord/Owner of the said property, the said property in question being a Religious Charitable organization cannot be bought without prior sanction of the Ld.Charity Commissioner (M.S.) or the Maharashtra State Board of Wakf. Moreover, it is a matter of record that the Hon'ble Supreme Court of India vide its order dated 11.05.2012,

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have issued status quo and have restrained all those in management of the Wakf properties/Muslim Trust, from alienating and/or encumbering the such properties during the pendency of the proceedings. The Hon'ble Supreme Court also has restrained the Charity Commissioner, Mumbai to either encumber or alienate any of the properties under the management, till pendency of the SPLs. The Copy of the said order dated 11-05-2012 passed by Hon'ble Supreme Court is enclosed herewith for your kind perusal and record.

6] That it would be appropriate that you kindly forward to my clients the Copies of the necessary permissions obtained by you from the Charity Commissioner (M.S.) office under section 36 for purchasing/alienating the said Trust property in question and/or the Copy of NOC from the Maharashtra State Board of Wakf for alienating the said "Masjid"

property. That if at all the sale/transfer/alienation of the said Trust has taken during the pendency of the said SPLs i.e. from 11.05.2012 till this date, then the sale itself become null and void."

19. Then, the notice alleges that there is a cluster

Redevelopment Scheme. However, Haji Ismail Haji Habib

Musafirkhana Trust has not communicated any such change of

landlord/ownership nor there is anything informed to this group

to establish that the eighth respondent before us is new landlord/

owner of the property. Therefore, it is alleged that there is no

landlord-tenant relationship. Then it is stated that this eighth

respondent is a Trust, but it is a scam in itself as there is no

charitable purpose involved in the redevelopment scheme. The

advocate for this group alleged that they are not aware of any

redevelopment proposal pertaining to the Haji Ismail Haji Habib

Musafirkhana Trust. No proposal has been forwarded to them.

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Then it is alleged that a copy of the redevelopment agreement

pertaining to the premises of the group, mentioning the benefits

has not been provided nor the features of this redevelopment

scheme are to their knowledge. At the same time, in para 10 of

this notice, the group alleges that respondent No.8 intends to

redevelop the property in question under "Saifee Burhani

Upliftment Trust under a composite scheme invoking

Development Control Regulations for Greater Mumbai and,

particularly, DCR 33(9) as the properties are purchased and

shown as the property of the eighth respondent-Trust. However,

the redevelopment is hit by a mandatory clause, which requires a

transfer of the tenanted premises into ownership. Once the

property is shown as a Trust property and the subject DCR being

invoked, there cannot be conversion for conversion from tenancy

to ownership will require sanction under Section 36 of the MPT

Act. That sanction or permission is mandatory. Thus, it is

claimed that the senders of this notice are not aware of any valid

and legal sanction obtained by respondent No.8 from the Charity

Commissioner. The other paragraphs of the notice call upon

respondent No.8 to provide the documents set out in para 12 and

then in para 13 it is said that the persons whose names are

mentioned in this notice and stated to be a forum of shopkeepers

is ready and willing to repair the property under the Mumbai

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Building Repairs and Reconstruction Board and also willing to

pay their contribution, if any, to the concerned authority to get

the concerned Musafirkhana building repaired immediately. It is

said that the transaction with respondent No.8 is illegal and

violates the directions of the order dated 11 th May, 2012 of the

Hon'ble Supreme Court of India.

20. After this notice was sent and the reference is made to the

order of the Hon'ble Supreme Court of India, the present writ

petition came to be filed. To be precise, it was filed in this Court

on 3rd November, 2018. thereafter it was to appear as per the

computerised dating system on 30th January, 2019. However, it

appeared before the learned Single Judge of this Court on 19 th

March, 2019 and was adjourned to 20th March, 2019. On 20th

March, 2019, none appeared for the petitioners and, therefore,

the matter was adjourned to 29th March, 2019. On 29th March,

2019, by consent, it was adjourned to 3rd April, 2019. After that

the matter appeared before the learned Single Judge on 3 rd April,

2019 and he directed issuance of notice after permitting the

petitioners to carry out the amendment to implead the Waqf

Board. The order of 3rd April, 2019, directs the parties to file

affidavit-in-reply. The matter was then adjourned to 16th April,

2019. Thereafter it could not be taken up and was adjourned to

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16th July, 2019. Prior thereto, from the record, it appears that on

10th June, 2019, the matter was taken up before a learned Single

Judge of this Court and he took affidavit of respondent No.8 on

record. Thereafter, matter was stood over, by consent, on 26 th

July, 2019. After that date, it was placed on 24 th September,

2019, but adjourned to 3rd October, 2019. Then it was taken up on

11th October, 2019 and an order was passed by a learned Single

Judge. That order, inter alia, grants interim relief. Respondent

No.8 is directed not to initiate the steps for eviction of the

petitioners, which would be at the risk of the petitioners. After

that date, the matter appeared together with other cases of

individuals anticipating and apprehending eviction from the

subject building and on 19th November, 2019, we passed the

following order:-

"1. After the administrative order clubbing the matters was passed by the Hon'ble Chief Justice, the present petition has been listed before this Bench.

2. This was listed along with couple of other petitions which are disposed of.

3. We have heard both sides on the point of continuation of an interim order dated 11.10.2019 in the above matter.

4. That order reads as under:

"P.C. Not on Board. Taken on Board.

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respondent- State. Also heard Mr. Tripathy, learned Counsel for Respondent Nos. 3 to 6, Mr.Paranjpe, learned counsel for Respondent No.7 and Ms. Shrikrishnan, learned Counsel for theRespondent No.8.

2 After hearing learned counsel for the parties at some length, Court is of the view that an interim order is called for.

3 Accordingly, Respondent No.8 is directed not to initiate steps for eviction of the Petitioner which would be at the risk of the Petitioner.

4 Stand over to 15.11.2019."

5. Mr. Tulzapurkar, learned Senior Counsel appearing on behalf of the contesting Respondent No.8 says that this order is blanket in nature. This protects the so called forum members, who are shopkeepers, from eviction.

6. Mr. Tulzapurkar submits that the challenge in this petition is to an order of sanction dated 26.11.2015 passed by the Charity Commissioner, Maharashtra State in Application No. J-4/48/2012.

7. Mr. Tulzapurkar submits that by itself this order does not bring about eviction of the members of the Petitioner forum, if at all, there is such legal entity. The order of eviction has been passed because there is a complete rehabilitation scheme carved out in terms of distinct statutes and legislations. After those schemes are in place, the parties like Respondent No.8 can take assistance of the powers which have been conferred by another law, in the authority established under that law. In that regard, our attention is invited to Section 95-A of the Maharashtra Housing and Area Development Act,1976. That confers the power of summary eviction. That Section reads as under:

"95A. Summary eviction of occupiers in certain cases.- (1) Where the owner of a building or the members of the proposed co-operative housing society of the occupiers of the said building, submits a proposal to the Board for reconstruction of the building, after obtaining the written consent of not less than 70 per cent of the total occupiers of that building and a No Objection Certificate for such

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reconstruction of the building is issued by the Board to the owner or to the proposed co-operative housing society of the occupier, as the case may be, then it shall be binding on all the occupiers to vacate the premises.

Provided that, it shall be incumbent upon the builder of such No Objection Certificate to make available to all the occupants of such building alternate temporary accommodation.

(2) On refusal by any of the occupant to vacate the premises as provided in sub-section (1), on being approached by the holder of such, No Objection Certificate for eviction of such occupiers, it would be competent for the Board, notwithstanding anything contained in chapter VI and VII of this Act,to effect summary eviction of such occupiers.

(3) Any person occupying any premises, land, building or structure of the Board unauthorisedly or without specific written permission of the Board in this behalf shall, notwithstanding anything contained in Chapters VI and VII of this Act, be liable for summary eviction.

(4) Any person who refuses to vacate such premises or obstructs such eviction shall, on conviction, be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both."

8. Mr. Tulzapurkar would submit that the scheme is carved out pursuant to the benefit that is available for redevelopment of old and dilapidated buildings in the city of Mumbai. That benefit is conferred by the Development Control Regulations for Greater Bombay, 1991. Once such a redevelopment scheme is in place, then, the non cooperating occupiers can be summarily evicted and in that regard, the above provisions are material.

9. The order of eviction is a summary one and passed under Section 95-A of this Statute. In the Writ Petition, there is neither any averment, nor any challenge to the summary eviction order. Hence, the blanket interim order passed by the learned Single Judge poses a

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obstacle and hindrance in the sense that this summary eviction order cannot be enforced and implemented. This will stall the redevelopment scheme itself.

10. Mr. Gorwadkar, learned Senior Counsel appearing on behalf of Petitioner would submit that the challenge in this Writ Petition is to the order of sanction. If the sale of the property belonging to the Respondent No.3 Trust is challenged, then once the sanction accorded by the Charity Commissioner falls to the ground, the conveyance in favour of Respondent No.8 would not survive. If all this does not survive, then there is no redevelopment scheme, nor any eviction. Hence, the order be continued for a reasonable period so as to enable the Petitioner to argue the petition.

11. While we note the anxiety of Mr. Gorwadkar to have a continuation of the interim order until the Writ Petition is heard for admission or for a reasonable period, yet, we are of the view that there is substance in the objections raised by Mr. Tulzapurkar. In the petition i.e. fled and brought before us, there is indeed no challenge to the order under Section 95-A of the Maharashtra Housing and Area Development Act, 1976. That order is passed against the individual occupiers be they commercial or residential. Ultimately, individuals are aggrieved and dissatisfied by the order, they may be members of a forum, but their individual tenements would be demolished and brought down and they would be summarily evicted. They cannot get the benefit of a blanket interim order passed by the learned Single Judge in a Writ Petition not fled by the tenement holder or occupier individually. The forum cannot seek any protection for such occupiers against the eviction orders.

12. In this view of the matter, we leave it to the individual members of this forum and if they are aggrieved and dissatisfied with the order of their summary eviction, they can bring a independent challenge to the same. To enable them to bring such challenge by fling individual cases or petitions, we continue the order passed on 11.10.2019 for a period of two weeks. The benefit of this order will not be available to those, who do not file individual petitions within a period of two weeks and move them before the competent Court. The shopkeepers/occupiers be they members of the Petitioner forum, can be evicted in exercise of the summary powers of eviction should they

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not file any individual cases within the period stipulated above. Thus, beyond two weeks, this order will not continue and enure for the benefit of the shopkeepers/occupiers against whom order under Section 95A of the MHADA Act, 1976, is passed.

13. We post this matter on 05.12.2019."

21. We have several affidavits on record and the contents of

which are material.

22. An affidavit-in-reply is filed by respondent No.8, which is at

pages 87 to 97 of the paper-book. In this affidavit it is stated that

the property is not a Waqf property. It is stated that respondent

No.3-Trust is a Public Trust registered under the MPT Act. It is

governed by a scheme dated 9th March, 1945 framed by this Court

in Suit No.741 of 1944. Then it is stated that the land and

building are situate, lying and being at the junction of Yakub

Street, Shaikh Abdulla Pakmodia Street and Edulji Cooper 2nd

street within the Registration District and Sub-District of

Mumbai. This property vests in the trustees of the Trust. It is

not a waqf property. It is specifically stated in this affidavit that

for a property to be a waqf property, it has to be dedicated to or

vested in 'Allah' that is God Almighty and in the absence of such

vesting or dedication, the property in question will not be a waqf

property. In the present case, the said property has been vested

in the trustees of respondent No.3 and there is no vesting or

dedication in favour of 'Allah' or God Almighty. That being the

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case, the said property is not a waqf property. The further

assertion in this affidavit is that there is no 'mosque' or 'masjid' in

the said property. Then it is stated that an attempt is made to

distort the facts without demonstrating and proving that how the

property is a waqf property. It is then stated that the order of the

Hon'ble Supreme Court of India dated 11 th May, 2012 passed in

Special Leave Petition (Civil) No.31288-31290 of 2011 is clear. It

does not say that the Charity Commissioner lacks jurisdiction to

pass an order under the provisions of the MPT Act by invoking

Section 36(1)(a) thereof, in relation to the properties belonging

to a Muslim Trust. Thus, the MPT Act applies to the Trusts

formed by Muslims and it is not contemplated by law that all such

Trusts are waqfs. There is a distinction between 'a Waqf' and 'a

Trust' and merely because a Trust carries on religious and

charitable activities that does not make a Muslim Trust 'a Waqf'.

On such assertions and on merits as well, the allegations in the

petition are denied.

23. There is an affidavit then filed by the trustees of respondent

No.3 and this affidavit says in clearest terms that the third

respondent is a Trust incorporated in the year 1944. It is

governed by a scheme framed by this Court. The object of

respondent No.3-Trust is to provide accommodation to pilgrims.

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It is stated that clause (6) of the scheme provides that at all time,

a member of the Testator's family shall be a trustee of the Trust.

The Trust is not a waqf. Then all aspects of the transaction with

respondent No.8 are highlighted. In addition to that, it is stated

that the building has been taken over by encroachers. They

refused to vacate the building. The Trust had to file a suit being

Suit No.3299 of 2003 in this Court. Then reliance is placed upon

the Maharashtra State Board of Waqf as set out in the

Maharashtra Government Gazette. It is also said that respondent

No.3 was aggrieved and dissatisfied with the inclusion of the third

respondent's name in this Government Gazette and applied for

deletion. Thereafter a corrigendum of 26 th April, 2005 was issued

deleting the name of the third respondent-Trust. It is stated that

as there was no progress in the legal proceedings and

encroachers continued to occupy the building, a meeting was

convened and thereafter, offer of respondent No.8 was

considered. Respondent No.8 was redeveloping the entire Bhendi

Bazar area. Since the building in question is falling in Bhendi

Bazar area, the trustees of respondent No.8 approached the

trustees of respondent No.3 and conveyed their interest to

purchase the building in question. Thereafter, Memorandum of

Understanding was executed. The amounts have been paid.

Then, an application was made to the Charity Commissioner and

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the Charity Commissioner considered all the relevant factors and

passed the order of sanction. Thus, the permission or sanction

received by respondent No.3 is in accordance with law. It is also

brought to the notice of the Charity Commissioner and now in this

litigation before this Court that the building in question is

dilapidated and in a ruinous and dangerous condition. It poses a

threat to the life of the residents of the building, neighbours and

passers-by. That is why this Court was of the view that the

building should be demolished. A copy of the order dated 14 th

June, 2018 in a Civil Suit has been referred to. For all these

reasons, it is mentioned that the order of sanction should not be

interfered with. It is also denied in this affidavit that the

petitioners are the beneficiaries and the tenants/occupants of the

respondent No.3-Trust and are the persons interested. They

cannot bring any challenge to the order of sanction. The material

contentions having been dealt with, this affidavit contains denials.

It is said specifically in this affidavit that it is not correct to allege

that a 'Sunni' Muslim property has been alienated in favour of the

'Shias'. Merely because the Trust is created for the benefit of

'Kachi Memon' does not mean that it cannot do business or

transact with Shia Muslims. It is in these circumstances and

asserting the position in law that the property of a Trust vests in

the trustees and the trustees have right to alienate the same that

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the affidavit proceeds to pray for the dismissal of the writ

petition.

24. It is, inter alia, pointed out that the order of the Hon'ble

Supreme Court is with regard to only waqf property. Once the

property in question is not a waqf property, then, the Charity

Commissioner has powers to pass the order of sanction. The

affidavit also refers to a litigation commenced by one Mohammad

Shafi Abdul Shakoor Arbiwala, who is one of the persons in the

group/Forum and he filed Waqf Suit No.75 of 2019 before the

Maharashtra State Waqf Board at Aurangabad. Thereafter, the

order in that suit is also referred in the affidavit filed

subsequently. Thus to the affidavit of the third respondent-Trust,

we find that there are several annexures. One of the annexures is

a copy of the Memorandum of Understanding and together with

that, there is a Memorandum of Understanding of 12 th March,

2015 entered into between a Trust (respondent No.8) and

respondent No.3. In this Memorandum of Understanding, it is

stated as under:-

"The Memorandum of Understanding dated 12th day of March, 2015 entered into between Saifee Burhani Upliftment Trust hereinafter referred to as the 1st Party and Haji Ismail Haji Habib Musafirkhana Trust, a Public Charitable Trust registered under the Bombay Public Trust Act of 1950, hereinafter referred to as the 2 nd Party.

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WHEREAS the 2nd Party is the absolute Owner of a building known as Haji Ismail Haji Habib Musafirkhana Trust, located and situated at Junction of Yakub Street, Sheikh Abdulla Pakmodia Street and Edulji Cooper 2nd Street at the Registration Sub-Division of Bombay and registered in the Books of Collector of Land Revenue under No.9341 New Survey No.4315 of Bhuleshwar Division. The said Musafirkhana was a Dharamshala having 36 rooms used for the lodging of pilgrims travelling to Saudi Arabia on Haj. The said building is a s such infested with trespassers who have been squatting over the same since past 40 years and the 2 nd Party has filed Suit No.3299 of 2003 in the Bombay High Court for evicting these trespassers.

WHEREAS the entire second floor of the aforesaid building admeasuring about 568.87 sq.feet was occupied by Mr.Dawood Ibrahim, a fugitive from law and the 2nd Party through Mr.Shoeb Z. Noorani had filed an undertaking in Misc. Application No.188 of 2007 in Bombay Blast Case No.1 of 1993 (Misc.Application No.376 of 1994) before the Designated Court under the TADA (P), at Mumbai Central Prison, Mumbai wherein he has undertaken to construct and handover 568.87 sq.feet to the State of Maharashtra till the disposal of M.A.No.314/94, 326/94, 376/94 in BBC No.1 of 93, in order to safeguard the interest of the prosecution/Government.

WHEREAS, the 1st Party is engaged in the development of Bhendi Bazar area as per the Cluster Development Scheme announced by Saifee Burhani Upliftment Trust, is undertaking the redevelopment of Bhendi Bazaar area admeasuring approximately 16.5 acres as an urban renewal scheme in terms of Regulation 33(9) read with Appendix IIIA (Hereinafter collectively referred to as Regulation 33(9) of the Development Control Regulations for Greater Mumbai, 1991 ("The project"). The Government of Maharashtra has granted in- principle approval and the High Power Committee constituted under Regulation 33(9) has granted its letter of intent for the project. The Municipal Corporation of Greater Mumbai has granted IOD (Intimation of Disapproval) for one of the sub-clusters of the Project. The Project involves the rehabilitation of around 3,200 residential families and 1250 commercial/ retail business/tenants, Saifee Burhani Upliftment Trust is therefore keen to acquire the building referred to hereinafter as Haji Ismail Haji Habib Musafirkhana Trust Building.

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WHEREAS the 1st Party had entered into a Memorandum of Understanding with the 2nd Party on 17th February, 2010 pursuant to which the 2 nd Party had filed Application No.48 of 2012 before the Charity Commissioner u/s 36(1)(a) of the Bombay Public Trust Act 1950 seeking permission to sell the above building known as Haji Ismail Haji Habib Musafirkhana Trust Building."

25. In this Memorandum of Understanding it is stated that

despite best efforts, respondent No.3-Trust has not been able to

evict the trespassers. The Memorandum of Understanding

records that a payment of Rs.1,10,00,000/- would be made after

deducting therefrom a sum of Rs.11,00,000/-, which has already

been paid to respondent No.3 by cheque on 12 th February, 2010.

This amount will be paid after the third respondent is able to

obtain the sanction of the Charity Commissioner in Application

No.48 of 2012. After the necessary compliance, the eighth

respondent has undertaken to become a party to the pending suit,

namely, Suit No.3299 of 2003. It has taken over the obligation

and responsibility to deal with all the trespassers. It will settle

their claims and file Consent Terms. The trespassers would

vacate the respective rooms and hand over possession thereof to

the eighth respondent. Thereafter a sum of Rs.35,00,000/- would

be paid to each of the trespassers, who are in occupation of

various rooms, by way of cheques as and when the trespassers

vacate the respective rooms and hand over possession thereof.

Thus, the responsibility of vacating all the trespassers was taken

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over. In addition, a sum of Rs.5,00,000/- would be paid to

respondent No.3. Thus, respondent No.8 says that on obtaining

permission from the Charity Commissioner by the third

respondent, the eighth respondent would take over the building

and thereafter also comply with the requirements under the

order of the Designated Court under the Terrorist and Disruptive

Activities (Prevention) Act (for short, "TADA"). With reference to

568.87 sq.ft. on the second floor which is at present in the

ownership of the Designated Court, it is agreed that it will be

cleared by the third respondent and will be handed over to the

eighth respondent. The annexures to this affidavit include a copy

of an order of the learned Single Judge passed in Suit No.3299 of

2003. That, according to the deponent, refers to all the problems

faced by the trustees.

26. Pertinently, the seventh respondent to this petition, who

was once a party to the application filed before the Charity

Commissioner, has filed an affidavit. In this affidavit, he purports

to support the petitioners. However, in the first affidavit filed by

this seventh respondent in this Court on 24 th June, 2019, he says

that he is not aware of any matter concerning the Waqf Act, 1995

nor he is aware about the writ petitions concerning the Muslim

Properties filed in this Court and its outcome or any order passed

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by the Hon'ble Supreme Court relating to these writ petitions.

The seventh respondent says that at the time of passing the

Resolution dated 24th December, 2011, the authority for pursuing

the case on behalf of the Trust (Respondent No.3) and the

remaining trustees was given to respondent No.4. Respondent

No.4 is well conversant with the MPT Act as well as the Waqf Act,

1995 as he is member of various Trusts and Auqafs run by the

Muslim Community. He was authorised to pursue the application

seeking sanction. The seventh respondent says that he will not be

able to say whether the order passed by the Charity

Commissioner is in accordance with law or not. The seventh

respondent says that he was party applicant in the application

filed before the Charity Commissioner, but his name was

deliberately deleted at the behest of respondent Nos.4, 5, 6 and 8

in this petition. It is alleged that the second respondent is hand in

glove with respondent Nos.4, 5, 6 and 8 so that a valuable Trust

property can be sold at a meager price of Rs.1,10,00,000/-. In

fact, its actual price is more than Rs.7,00,00,000/- and

respondent No.8 paid the stamp duty on the said amount. If that

is the position, then, the seventh respondent says that the sale at

such a meager price would not be in the interest of the Trust.

Pertinently, he admits that on the basis of the order passed by the

Charity Commissioner (impugned order), a Conveyance Deed has

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been executed, but even that does not have the signature of

respondent No.7. For all these reasons, he would submit that this

Court should pass appropriate order.

27. Respondent No.8 filed a further affidavit-in-reply to deal

with the allegations in the affidavit of respondent No.7. In this

affidavit-in-reply, it is said that respondent No.7 was a party to

the Resolution passed by the third respondent-Trust on 24 th

December, 2011. Respondent No.7 accepted the valuation of

Rs.1,10,00,000/-. He gave his no-objection to the sale as well. It is

clear that once the Resolution was passed by all the trustees and

the seventh respondent is a party thereto, there is no necessity of

obtaining the signature of respondent No.7. Pertinently,

respondent No.7 says in his affidavit, according to respondent

No.8, that the fourth respondent was authorised to present the

application and finalise the transaction. It is said that the

Memorandum of Understanding dated 26th December, 2011 has

also been signed by respondent No.7, who agreed to all the terms

and conditions thereof. There is also an affidavit dated 17 th

November, 2011 executed by respondent No.7 consenting to the

sale of property to respondent No.8. A copy of this affidavit is also

enclosed as Exhibit 'B' to the affidavit filed on 8th November, 2019.

In this affidavit, respondent No.8 says that the seventh

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respondent to this petition has filed a suit in this Court bearing

Suit No.1231 of 2018, wherein, he has prayed for setting aside

and cancelling the Conveyance Deed dated 19th May, 2016

executed in favour of respondent No.8 in respect of the Trust

property.

28. After this affidavit was served on all the parties, an

additional affidavit has been filed by respondent No.8 to point out

that Waqf Suit No.75 of 2019 filed before the Maharashtra State

Waqf Tribunal at Aurangabad specifically says that the Trust

property as defined in this petition is, Godown Nos.1 and 2

admeasuring 636 square feet. That is part and parcel of the

subject building. It is alleged in this affidavit that the application

before the Waqf Tribunal was the most appropriate remedy to

resolve the issue as to whether the property is a 'Waqf Property'

or not. Pertinently, one of the petitioners/members of this "Shop

Tenants Forum" has approached this Tribunal at Aurangabad.

The Tribunal has rejected his application. Aggrieved by that, a

Civil Revision Application has been filed before this Court's Bench

at Aurangabad in which an order was passed on 30 th April, 2019

not to demolish the godown. Thus, the application in that

application says that the waqf property is godown Nos.1 and 2

and that is in his possession. It is these circumstances that the

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eighth respondent says that if the Waqf Board is the proper forum

to resolve this issue, then, after the eighth respondent has come

on the scene, became the owner of the property, no proceedings

before that Tribunal could have also been proceeded with unless

the eight respondent was impleaded as a party thereto. With

regard to the fulfillment of the terms and conditions under the

Conveyance Deed, in this affidavit the following paragraphs are

material:-

"8. I state that Respondent No.8 has till date paid Rs.5,25,00,000/- (Rupees Five Crore Twenty Five Lakh Only) to Respondent No.3 over and above Rs.1,10,00,000/- (Rupees One Crore Ten Lakh Only) paid under the Deed of Conveyance in order to comply with the obligations under the Memorandum of Understanding dated 12th March 2015 (Exhibit E in the Affidavit in Reply dated 12th April, 2019 filed by Respondent No.4). Respondent No.8 under the Memorandum of Understanding dated 12th March, 2015 has also agreed to construct and hand over premises admeasuring 568.87 square feet in terms of the order dated 31st December 2007 passed in Miscellaneous Application No.188 of 2007 in Bomb Blast Case No.1 of 1993 by the Hon'ble Designated Court for Bomb Blast Cases, at Greater Bombay under Terrorist and Disruptive Activities (Prevention) Act, 1987. A copy of the receipt issued by Respondent No.3 evidencing the payment of Rs.5,25,00,000/- (Rupees Five Crore Twenty Five Lakh Only) is annexed hereto and marked as Exhibit "C".

9. I therefore, submit that Respondent No.8 has paid a total sum of Rs.6,35,00,000/- (Rupees Six Crore Thirty Five Lakh Only) to Respondent No.3 in respect of the said Property.

10. Further I state that since Respondent No.8 has undertaken the responsibility of redeveloping the Bhendi Bazaar Area under Regulation 33(9) read with Appendix IIIA of the Development Control Regulation of Greater Bombay, 1991 as an urban renewal/cluster Page 34 of 106 M.M.Salgaonkar

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scheme, Respondent No.8 is obligated to rehabilitate the eligible tenants/occupants of the said Building in new premises on ownership basis at its own costs. I submit that Respondent No.8 over and above the transitory benefit, will be giving the eligible tenants/occupants of the said Building an total carpet area of approximately 4,900 square feet to the commercial tenants/occupants & a total carpet area of approximately 7,500 square feet to the residential tenants/occupants, on ownership basis, which has to also be factored into the price of the said Property.

11. I further state that all the aforesaid very material and relevant facts relating to the redevelopment scheme and the rehabilitation of the eligible tenants/occupants as a part of a cluster redevelopment scheme along with the surrounding buildings in the Bhendi Bazar Area undertaken by Respondent No.8, were placed before the Hon'ble Charity Commissioner and were present to his mind while passing the Impugned order."

This affidavit was filed on 29th November, 2019.

29. There is an additional affidavit filed by respondent No.7 and

in which, respondent No.7 says that he is dealing with the

affidavit-in-reply of respondent No.8. He once again admits that

there was a transaction for sale of the Trust property. The

transaction and the agreement in relation thereto with the eighth

respondent is to the knowledge of this seventh respondent.

However, he says that the Sale Deed does not bear his signature

and he has already issued a legal notice. He is not accepting the

sale. He has also stated in this affidavit that there was a

Resolution of the Trust. That the affidavit of 17 th November, 2011

preceding this Resolution bears his signature. Further, even the

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says that the Conveyance Deed was not signed by him. If the

Conveyance Deed has not been signed by him, then, the subject

transaction, according to him, is illegal. This affidavit is filed on

3rd December, 2019.

30. To this affidavit, there is an annexure. The same is a copy of

the communication dated 26th March, 2013 between the

Chairman/Trustee of the third respondent-Trust and one Shaikh

Abdealibhai Bhanpurawala of the eighth respondent-Trust. After

a copy of the Sale Deed has been annexed, reliance is placed on a

challan, which was executed evidencing payment of stamp duty.

31. The affidavit-in-rejoinder of the petitioners needs to be

referred to because it sets out a case some what distinct from

what is set out in the memo of the petition. It is stated that

respondent No.8 is in no way connected to the challenge to the

registration of a Sunni Trust/Waqf (Respondent No.3). That is a

Waqf and the certification is done by the competent authority

under the Waqf Act, 1995 in Application No.40 of 2009. It is

stated that the certificate would enable the petitioners to contend

together with the assertions in the petition that a Gazette

Notification of Bombay Government of the year 1944 notifies the

said respondent No.3-Trust in question as Waqf at page No.34 of

the said Gazette at serial No.3/1931. Now the reference thereto is

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a Waqf institution "Seth Haji Ismail Haji Habib Musafirkhana

Trust". Even the address is that of the third respondent. Thus,

the third respondent is created as a Waqf and there are names of

Mutawallis mentioned at serial No.163 in the List of Mutawallis of

Waqfs of Bombay registered under the MUSALLAM Waqf Act

No.XLII of 1923 as amended by Bombay Act No.XVIII of 1935.

This substantiates the case that the third respondent is created

as Waqf even prior to 1935.

32. For these reasons, it is contended that the MPT Act governs

the religious and charitable Trusts. It was enacted to regulate

and to make provisions for their administration in the State of

Bombay. The Muslim category Waqf/Trust was enlisted under the

'B' category of the Bombay Public Trust Act, 1959. The 'A'

category is for Hindu religious and charitable institutions and 'C'

category is for Christians etc. The Waqf Act was enacted in 1995.

That is a Central Act. That provides for better administration of

Auqaf/Waqf and for matters connected therewith or incidental

thereto. Reliance is placed on Section 112 of this Waqf Act, 1995

to urge that the information, which is gathered by the petitioners

would reveal that the third respondent is a Waqf. There is an old

marble plate embedded in one of the wall of the Masjid in the said

Musafirkhana whereon in Urdu, the details of the intention of the

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Wakif (Donor) is mentioned. The copies of the same are annexed

to the affidavit-in-rejoinder and it is stated the premises comprise

'Masjid' and Namaz is offered regularly five times together with

Friday prayers and Eid Namaz. All this would denote that the

third respondent-Trust and its property is a Waqf. The existence

of 'Masjid' is sought to be proved by relying upon the municipal

assessment record. Thus, the attempt is to show that the order of

the Hon'ble Supreme Court of India applies with full force to the

third respondent. This is an affidavit-in-rejoinder filed on 4 th

December, 2019. This completes the narration of the facts and

their contents.

33. We have also an Interim Application filed by one Mohammed

Farooq Anwar Rathod, who seeks to intervene in this writ petition

by urging that Haji Ismail Haji Habib Musafirkhana Trust building

is a place where this applicant/intervener has spent his

childhood. He is a Muslim and belongs to 'Sunni Sect'.

Pertinently, this intervener says that there is an order dated 10 th

July, 1944 passed by this Court in relation to the third

respondent after the third respondent came into existence. The

main object of the third respondent is to rent out the place to

those Haji's who wish to take pilgrimage to Haj. The Haji Ismail

Haji Habib Musafirkhana Trust has a building called

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Musafirkhana located and situate at 33, Pakmodia Street,

Mumbai - 400 008. This intervener says that the building

consists of ground plus two upper floors. The ground floor

consists of 36 shops and a godown. These shops and godown were

given on rent to various persons to carry on business therefrom.

It is stated that the revenue earned from running the shops on

ground floor is used for charitable purpose. The premises on the

first and second floor were initially used to house Haj pilgrims. As

time passed, the Musafirkhana lost its significance. The people

taking pilgrimage did not require the accommodation in the

Musafirkhana. The Musafirkhana came to be used less and less

by the pilgrims. The premises, therefore, were given on rent and

the revenue generated therefrom was used to further various

charitable objects like education of boys and girls, meet medical

expenses of the poor and needy etc. Thereafter, it is said that in

the year 1990, the rooms on the second floor came to be given out

on rent to one Dawood Ibrahim. Many of the tenants lodged in the

first and second floor are part of the underworld. These

individual members of the underworld fearing action against

them stopped going out and began using the ground floor for

reading Namaz. This is how the prayer room on the ground floor

came into existence. The applicant/intervener further states that

this prayer room is being wrongly depicted as 'Masjid'. Being a

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Muslim, the applicant offered Namaz in the prayer room. Then he

says that there is a flurry of activities in the Musafirkhana. On

few occasions, even police visited the site. Then the applicant

learnt that the building has been sold by the third respondent to

the eighth respondent. This is how from the documents, this

applicant gathered information and says that the sale is illegal.

The illegality is sought to be demonstrated by urging that

respondent No.3 should have given a public notice before the sale.

The public notice ought to have been given in a prominent daily

English newspaper and a language newspaper published from

Mumbai, having wide circulation in the area. The object of the

public notice is to attract best possible price. In the absence of a

public notice, the real price of the property cannot be determined.

There was no public notice and, therefore, duty of the Charity

Commissioner was to protect the interest of the beneficiaries.

Having failed to do so, the applicant is also one of the persons

aggrieved by the order of the Charity Commissioner. He realised

about all the developments set out in this application in the

month of October 2019. This intervener/applicant, therefore,

says that the order of the Charity Commissioner be set aside and

the petitioners in the writ petition be directed to implead him as a

party respondent.

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34. We have referred to the averments in this Interim

Application for a specific reason, which we will set out in our

discussion. The discussion would commence after we summarise

the oral arguments of the learned counsel appearing for the

parties.

35. Mr.Gorwadkar, learned senior counsel appearing for the

petitioners submitted before us that the impugned order is bad in

law and deserves to be quashed and set aside. The counsel would

submit that the order of the Charity Commissioner can be faulted

in law as also on facts. He would submit that the first objection to

the order is that it has been passed by an authority, who lacks

inherent jurisdiction to pass the same.

36. Mr.Gorwadkar would submit that once the order of sanction

impugned in the petition is without jurisdiction and ex facie

illegal, then by virtue of the same, no title passes in favour of the

eighth respondent. If the order of sanction falls, then, even the

sale must perish. In other words, no separate proceedings are

then required to quash and set aside the Sale Deed in favour of the

eighth respondent.

37. Mr.Gorwadkar, in support of his first contention, would

invite our attention to the statements in the affidavit-in-rejoinder.

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He took us through that rejoinder affidavit, and, particularly,

pages 315, 316 and 317 thereof to urge that the property in

question belongs to a Waqf. It partakes the character of Waqf

property by virtue of these annexures. Once it is a Waqf property,

then, it is the authority set up by the Waqf Act, 1995, which would

have to deal with the same. Thus, the Waqf Act, 1995 is the

governing law and not the MPT Act. Mr.Gorwadkar would submit

that there is a definition of the term "Waqf". According to

Mr.Gorwadkar, that expression is defined in law to mean the

permanent dedication by any person, of any movable or

immovable property for any purpose recognised by the Muslim

law as pious, religious or charitable and includes what is set out in

the definition of the term "Waqf" appearing in Section 2(r) of the

Waqf Act, 1995. Mr.Gorwadkar was emphatic in his submission.

He would urge that even if "Waqf" means the permanent

dedication by any person, of any movable or immovable property

for any purpose recognised by the Muslim law as pious, religious

or charitable, still that is an inclusive expression. It includes, a

Waqf by user, but such Waqf shall not cease to be a Waqf by reason

only of the user having ceased irrespective of the period of such

user. Thus, Mr.Gorwadkar would submit that assuming without

admitting that there is no dedication, the user from times

immemorial would enable him to urge that this is a Waqf, as

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defined in Section 2(r). Mr.Gorwadkar submits that the sect of

Muslims, which is administering and managing the affairs of

respondent No.8 are 'Sunnis'. They could not have struck a deal

or entered into any transaction in relation to the property

belonging to a Waqf managed and administered by 'Shia' sect.

From the very inception, therefore, this deal and transaction is

vitiated.

38. By relying upon the judgment of the Hon'ble Supreme Court

of India in the case of Mohammad Shah vs. Fasihuddin Ansari

and others1, Mr.Gorwadkar would submit that actual proof of

dedication is not necessary. There is no divestment required. He

would submit that once this legal position becomes clear, then, we

should not hesitate to accept the arguments of the petitioners

based as they are on documentary evidence.

39. In answer to certain arguments canvassed in reply,

Mr.Gorwadkar would rely upon further notification issued by the

State Government to cancel the corrigendum. He would, thus,

submit that we should place no reliance on the two Government

notifications referred by respondent Nos.3 and 8.

40. Mr.Gorwadkar further, alternatively, submitted that

assuming that the immovable property in question is not a Waqf,

1 1956 SC 713

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still the same cannot be disposed of by a private treaty.

Mr.Gorwadkar would submit that the property is disposed of

virtually by a private treaty. There is a clear indication in the

documents that respondent Nos.3 and 8 dealt with a property

belonging to a Public Trust governed by the MPT Act. It is a

Trust property. The Trust is a Public Charitable Trust. Therefore,

it is a public property. It could not have been disposed of in a non-

transparent and secret manner. Now, the impugned order, though

passed in the year 2015, can be assailed in the petition filed in

November, 2018. It can be so assailed because there is no

knowledge of the sale nor is there any information available in

public domain with regard to the discussions, negotiations

preceding the same. The Charity Commissioner also did not

adhere to the norms and standards prescribed in law. Once the

Charity Commissioner is chosen by the MPT Act and he is

endowed with the duty to accord sanction to alienation of a Trust

property or property belonging to a Public Trust, then, the

Charity Commissioner is obliged to follow the mandate of Article

14 of the Constitution of India or the principles analogues thereto.

In other words, the Charity Commissioner could not have allowed

disposal of the property without the proposed sale being notified

to the public. The Charity Commissioner should have directed the

trustees to invite bids and offers from the public after publishing

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a public notice. He should have allowed other bidders to bid or

make an offer to purchase the property. The Charity

Commissioner having not adopted this course mandated by law,

his order deserves to be quashed and set aside.

41. Additionally, Mr.Gorwadkar would submit that there is an

obligation in law on the Charity Commissioner and he must

satisfy himself that the sale is in the interest, for benefit or for the

protection of the Trust. Thus, he has to be satisfied that the sale

is necessary and that the sale or disposal of the property is, in the

interest for benefit or protection of the trust. So long as this

satisfaction is not specifically recorded in the order of sanction,

that must fail. In other words, such a satisfaction must be patent

or discernible from the order itself. In the instant case, the

Charity Commissioner has not applied his mind to this aspect at

all. His order is virtually unreasoned and cryptic. He has allowed

a private deal or transaction to be finalised in a non-transparent

and secret manner. The order of the Charity Commissioner,

therefore, does not accord with the principles set out in the

judgments of this Court and, particularly, a Full Bench judgment

rendered in the case of Sailesh Developers and others vs. Joint

Charity Commissioner Maharashtra and others2. The order does

not take note of the parliamentary legislation, particularly, the

2 2007(3)Bom.C.R.7

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Places of Worship (Special Provisions) Act, 1991. Mr.Gorwadkar

relies upon this legislation to contend that the Trust property in

this case specifically refers to a 'Masjid'. There is a 'Masjid' in the

property. If that is so situate and where the prayers/Namaz are

offered regularly by the members of the community, then, this law

protects such place of worship. Mr.Gorwadkar also invited our

attention to the Government Resolution dated 7 th October, 2008

to urge that the property in question is a Waqf property. For all

these reasons, he would submit that the impugned order be set

aside and petition be allowed.

42. In support of his arguments, Mr.Gorwadkar relied upon the

following judgments.

(i) Mohammad Shah vs. Fasihuddin Ansari and Ors., [AIR 1956 SC 713(S)]

(ii) U.P.Sunni Central Board of Wakfs vs. Mazhar Hasan and Ors., [(2001) 6 SCC 289]

(iii) Cyrus Rustom Patel vs. Charity Commissioner, Maharashtra State and Ors., [(2018) 14 SCC 761]

(iv) Sailesh Developers and Ors. vs. Joint Charity Commissioner Maharashtra and Ors., [2007(3) Bom.C.R.7]

(v) Ritesh Tiwari and Anr. vs. State of Uttar Pradesh and Ors., [(2010) 10 SCC 677]

(vi) Sayyed Ali and Ors. vs. A.P.Wakf Board, Hyderabad and Ors., [(1998) 2 SCC 642]

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43. Mr.Gorwadkar is partly supported in his arguments by the

learned counsel appearing for respondent No.7. He would submit

that the seventh respondent signed the documents in the belief

that the Charity Commissioner is empowered by law and could

have protected the interest of the Trust. Now, that everything is

revealed to him, he does not support the order of the Charity

Commissioner. He joins the petitioners in the challenge.

Additionally, learned counsel would submit that the documents

have been signed by respondent No.7, but it is pertinent to note

that the primary document, namely, the application made before

the Charity Commissioner, though contains the name of

respondent No.7, later on, it was deleted at the behest of the

trustees of respondent No.3. Thus, other trustees of respondent

No.3-Trust have colluded with each other in disposing of the Trust

property. He, therefore, would submit that the petition must

succeed.

44. The writ petition is contested by respondent Nos.3 to 6 and

8. Mr.Tripathi, learned counsel appearing for respondent Nos.3 to

6, invited our attention to pages 183 and 187 to submit that

respondent No.3 is a Trust. That it is a Public Trust is clear and

apparent from the fact that there was a scheme prepared in

relation to the administration and management of the affairs of

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this Trust. The trustees are named. The scheme does not say

that the property is dedicated to the Almighty. Rather, it vests in

the trustees. On the ground floor of the building belonging to the

Musafirkhana-Trust, there is a godown. It may have been used as

a prayer-room or prayer-hall, but that by itself or without

anything more does not mean that there is dedication of the

property and for the purposes set out in the definition of the term

"Waqf". Thus, there is no substance in the contentions of

Mr.Gorwadkar that there is a Waqf and the property in question is

governed by the Waqf Act, 1995. Our attention has been invited

to the two affidavits filed in reply. For the above reasons, the

counsel would submit that this petition be dismissed.

45. The writ petition was argued extensively by

Mr.Tulzapurkar, learned senior counsel appearing for respondent

No.8. He has invited our attention to the scheme to urge that

respondent No.3 can never be termed as Waqf. He would submit

that the building comprises of ground plus two upper floors. There

may be a prayer-hall on the ground floor, however, the first and

second floor of the building are occupied by trespassers,

encroachers and also members of the underworld.

Mr.Tulzaourkar relied upon the proceedings before the

Designated Court under the TADA to urge that the Court has

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passed the order referring specifically to the second floor of this

property and the entire floor is, therefore, sought to be brought

under the control of this Designated Court.

46. Mr.Tulzapurkar would submit that the Waqf Act, 1995 sets

out a complete procedure if there is a dispute as to whether a

Waqf exists and a property is belonging to a Waqf or not. In

relation thereto, he invites our attention to the provisions of the

Act. He would submit that the Act contains elaborate provisions.

The counsel would invite our attention to the sections appearing

in Chapter II titled as "Survey of Auqafs".

47. Mr.Tulzapurkar would submit that Section 4 of this Chapter

is titled as "Preliminary survey of Auqafs". Then Section 5

provides for a "Publication of list of Auqafs" and Section 6

provides for "Disputes regarding Auqafs". Then material section

is Section 7, which empowers the Tribunal to decide a question of

the nature referred in sub-section (1) thereof. Thus, when any

question arises as to whether a particular property specified as

Waqf property in a list of Auqafs is Waqf property or not or

whether a Waqf specified in such list is a Shia Waqf or Sunni Waqf,

the Board or the mutawalli of the Waqf or any person aggrieved

by the publication of the list of Auqaf under Section 5 therein,

may institute a suit in the Tribunal for a decision on the question

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and the decision in respect thereof shall be final. Our attention

has been invited to the two provisos below sub-section (1) and

sub-section (2) to urge that notwithstanding aything contained in

sub-section (1), no proceedings under the Waqf Act, 1995 in

respect of any Waqf shall be stayed by any Court, Tribunal or

other authority by reason only of the pendency of any suit,

application or appeal or other proceeding arising out of any such

suit, application, appeal or other proceeding. Mr.Tulzapurkar

then relied upon sub-section (5) of Section 6 and Section 7 to urge

that these two sections set out a complete Scheme and is a Code

by itself. If any question arises of the nature raised in this

petition, then, the petitioners' remedy was to approach the

Tribunal. This writ petition under Article 226 of the Constitution

of India cannot be the remedy to decide a disputed question of

fact. Therefore, according to Mr.Tulzapurkar, the petition

deserves to be dismissed on this ground. However,

Mr.Tulzapurkar submits that he would satisfy this Court even on

merits that there is no substance in the arguments of

Mr.Gorwadkar.

48. Mr.Tulzapurkar would submit that the application was

made to the Charity Commissioner with specific averments.

These averments are based on the legal proceedings in relation to

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respondent No.3 and its property. Mr.Tulzapurkar submits that

way back in the year 1944, the suit was filed in this Court and in

which a scheme for administration and management of the third

respondent was settled. There are specific clauses in the scheme

by which certain persons named therein are styled as trustees

and the property in question has been included therein to be

vesting in these trustees. After that, Mr.Tulzapurkar relies upon

the registration, which has been obtained by the third respondent

under the MPT Act. Mr.Tulzapurkar would submit that none of

these documents or their contents are disproved till date. There

was never any dispute raised with regard to the status of the

third respondent as Trust and governed by the MPT Act. For the

first time, in a writ petition to challenge the order of sanction of

the Charity Commissioner that some frustrated and disgruntled

persons occupying ground floor shop premises styling

themselves as "Forum", have sought to question this status.

Whether they are beneficiaries or otherwise, they could not raise

this issue for they are aware of the execution of these documents,

including the scheme of the Trust, its registration as Public

Charitable Trust and its property being included in the Property

Register maintained under the MPT Act and the Rules framed

thereunder. For decades together, these documents have not been

questioned by anybody. Further, the petitioners seek to rely upon

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a stray sentence or paragraph in the order of the Hon'ble

Supreme Court of India. That judgment should be read in its

entirety. That judgment was rendered in an appeal to challenge a

judgment of the Division Bench of this Court. The Division Bench

of this Court was seized of certain writ petitions, during the

course of which, it proceeded to quash and set aside the entire list

of the properties. This list of the properties being struck down,

the persons aggrieved by that direction, approached the Hon'ble

Supreme Court. They would urge that the order of this Court

would not enable the Charity Commissioner, exercising powers

under the MPT Act, to deal with Waqf property. He is not

empowered to deal with them. There is a distinction between a

Trust governed by the MPT Act and a Waqf governed by the Waqf

Act, 1995. The Hon'ble Supreme Court, bearing in mind this

fundamental underlining distinction, proceeded to issue the

sweeping directions. Mr.Tulzaopurkar would submit that the

judgment of the Hon'ble Surepme Court itself clarifies that

members of the Muslim community or Muslim region can form a

Trust. A Trust, formed and established by Muslims, is not

necessarily a Waqf. For it to be a Waqf, it has to satisfy the

requirements set out in section 2(r) of the Waqf Act, 1995. In

other words, a Muslim Trust can also be governed by the MPT

Act, 1950. There is nothing illegal about such governance and the

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Hon'ble Supreme Court's judgment expressly clarifies this aspect.

Once the burden is entirely on the petitioners to establish and

prove that the third respondent is a Waqf and the property of the

third respondent is a Waqf property, then, they have miserably

failed to discharge that burden. No amount of reliance on the

judgment of the Hon'ble Supreme Court would therefore be of any

assistance to the petitioners, according to Mr.Tulzapurkar.

49. Mr.Tulzapurkar would submit that the affidavit-in-rejoinder

also does not carry the case of the petitioners any further. The

documents referred to in the affidavit-in-rejoinder and the copies

of which are annexed to the same would not by themselves

establish and prove the case of the petitioners that the third

respondent is a Waqf. For these documents to be relied upon, the

petitioners would have to file appropriate proceedings and in

which the contents of these documents can be verified and

scrutinised. The burden is on the applicants/petitioners and they

cannot, by relying on the annexures to the affidavit-in-rejoinder,

urge that all the documents of 1945 onwards and particularly, the

registration of respondent No.3 as a Public Trust is ipso facto

wiped out. The documents annexed to the affidavit-in-rejoinder

are doubtful and suspicious in character. There is a reference to

certain Trust and Mutawallis, but the address of the Mutawalli is

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stated to be Kambekar Street and not of Junction of Yacoob Street

and Pakmodia Street Bhuleshwar. Therefore, there is no

reference to the specific entity as a Waqf. For these reasons, he

would submit that some of the old documents would not belie the

contents of the legal proceedings, particularly the suit instituted

in this Court and the order setting out a scheme passed in that

suit. Mr.Tulzapurkar would submit that the Advocate General

had appeared in the proceedings way back in the year 1944. For

all these reasons, he would submit that we must reject the

arguments of Mr.Gorwadkar on the point of jurisdiction and

competence of the Charity Commissioner.

50. Then, Mr.Tulzapurkar attempted to support the order of the

Charity Commissioner by urging that the law is not as

propounded by Mr.Gorwadkar. The law does not oblige the

Charity Commissioner to issue a public notice. The moment he is

seized of an application in the nature made by respondent No.3,

the law does not lay down any absolute principle by which such

application and its filing has to be publicised and public at large

has to be informed about the pendency of the same. The

satisfaction of the Charity Commissioner in terms of Section 36 of

the MPT Act is the predominant requirement. That satisfaction

can be based on the Charity Commissioner perusing the record in

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relation to the application brought before him. The record would

indicate that the details therein set out the Trust in question, its

object and purpose, the nature of the property belonging to it, its

location and present status and position. Mr.Tulzapurkar

submits that the trustees brought before the Charity

Commissioner an application with specific assertions, including

the averments in relation to the notice from a public body like the

Municipal Corporation of Greater Mumbai. That notice calls upon

the trustees to pull down or demolish the building belonging to

the third respondent. That was stated to be dangerous and in a

dilapidated condition. It is so ruinous or likely to fall that if it

indeed collapses, that would endanger the life of the occupants

and residents in the building. Not only they would be affected, but

equally those residing in the neighbourhood and passing by this

building would suffer. Their life is in danger. This is the first

factual assertion in relation to the condition of the building. The

second factual assertion in relation to the building is that the

building is occupied by the persons who are not the original

tenants or occupants. Now, the trespassers have taken over the

building. The trespassers and encroachers could not be evicted

by the trustees for they have no financial means to evict them. In

other words, though legal proceedings have been initiated against

these trespassers and encroachers, today, despite pendency of the

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legal proceedings for over a decade, the trustees could not secure

an order of eviction. The trustees are receiving meager income

from which it is impossible for them to maintain and preserve the

structure and to prosecute the litigation. More particularly, on

the second floor of the building, there is occupancy by the

members of the underworld. These members are accused of

belonging to the gang of a dreaded Gangster Dawood Ibrahim. In

relation to the acts committed by him and his gang, criminal

prosecution was launched and that was subject matter of the

proceedings before the Designated Court. There is specific

reference to the second floor of the building and the nature of its

occupancy. That second floor cannot be dealt with except in

terms of the order and direction of the Designated Court.

51. The trustees, therefore, obtained a valuation of such an

encumbered and unsafe property. The valuer opined that such a

property will not fetch the price prevailing in the market, which is

ordinarily fetched by a unencumbered vacant property in that

locality. The old dilapidated building, occupied by trespassers and

encroachers, therefore, will not command a price in the market as

projected by the petitioners. The meager price that it commands

was not enough for the trustees to maintain the property in

future. They, therefore, took a pragmatic and practical call to

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dispose of the property. Thus, the sale was a necessity. That was

also because of the pending demolition threat from the Mumbai

Municipal Corporation and public bodies. In such circumstances,

the Charity Commissioner was rightly satisfied that there was a

legal necessity and that the sale was in the interest and for the

benefit and protection of the Trust. This satisfaction is

specifically recorded and by applying correct legal parameters.

52. Mr.Tulzapurkar emphasised that there is nothing in the

judgments of this Court and the Hon'ble Supreme Court that in

every case, whenever an application of the nature referred in the

present proceeding is made or pending before him, the Charity

Commissioner must issue a public notice and invite offers from

the public at large to dispose of the Trust property. The Charity

Commissioner in this case was satisfied that there was no

requirement of directing the trustees to publish the sale in the

newspapers and invite offers from the public. This could have

caused considerable delay as well. For all these reasons,

Mr.Tulzapurkar would submit that the impugned order deserves

to be upheld and the petition be dismissed.

53. Mr.Tulzapurkar would rely upon the following judgments in

support of his contention:-

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(i) Haryana Wakf Board vs. Mahesh Kumar, [(2014) 16 SCC 45]

(ii) Sailesh Developers and Anr. vs. Joint Charity Commissioner, Maharashtra and Ors., [2007(3) Mh.

L.J.]

(iii) Dattatraya baburao Walawalkar and Ors. vs. Siddhivinayak Construction Private Limited and Ors., [(2016) 12 SCC 163]

54. For properly appreciating the rival contentions, we must

make a reference to the provisions of the MPT Act and the Waqf

Act, 1995. The Waqf Act, 1995 has been enacted in order to

provide for the better administration of Auqaf and for matters

connected therewith or incidental thereto. In the Statement of

Objects and Reasons preceding this law/legislation, the

Parliament found that only two provisions of the prior enactment

could be enforced because of strong opposition from the Muslim

community. Thus, the two provisions related to increasing the

period of limitation for filing suits in respect of Wakf properties in

adverse possession from 12 to 30 years and application of the

provisions of the Wakf Act, 1954, to the evacuee properties.

Therefore, the new Waqf Act with the features set out in this

Statement of Objects and Reasons was proposed to be enacted.

The further amendment also subserves that purpose. Therefore,

this Act of 1995 applies save as otherwise expressly provided

under the Waqf Act to all Auqaf, whether created before, or after

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the commencement of this Act. The proviso to Section 2 clarifies

that nothing in this Act shall apply to Durgah Khawaja Saheb,

Ajmer to which the Durgah Khawaja Saheb Act, 1955 (36 of

1955) applies. Definitions are to be found in Section 3. The word

"beneficiary" is defined in clause (a) to mean a person or object

for whose benefit a Waqf is created and includes religious, pious

and charitable objects and any other objects of public utility

sanctioned by the Muslim law. Thus, the beneficiary means a

person or object. However, the term "benefit" defined in clause

(b) does not include any benefit which a mutawalli is entitled to

claim solely by reason of his being such mutawalli. The term

"Board" is defined in clause (c), whereas, the "Chief Executive

Officer" is defined in clause (d). The term "encroacher" is also

defined in clause (ee). The "List of Auqaf" means the list of auqaf

published under sub-section (2) of Section 5 or contained in the

register of auqaf maintained under Section 37. The term

"mutawalli' is also defined in clause (i). The term "person

interested in a waqf" is defined in clause (k) to mean any person

who is entitled to receive any pecuniary or other benefits from the

Waqf and includes those set out in sub-clauses (i) and (ii) of

clause (k). We have also the definition of the term "Shia Waqf" and

"Sunni Waqf". The term "Tribunal" is defined in clause (q) and the

word "Waqf" in clause (r). Chapter II is titled as "Survey of

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Auqafs" and contains Sections 4 to 7. Section 6 has been relied

upon heavily before us. This Section enables holding of an inquiry

to decide a question expressly referred in sub-section (1). If any

question arises whether a particular property specified as Waqf

property in the list of Auqafs is waqf property or not or whether a

Waqf specified in such list is Shia Waqf or Sunni Waqf, then, the

Board or the mutawalli of the Waqf or any person aggrieved, may

institute a suit in a Tribunal for a decision on the questions

referred above.

55. Therefore, as rightly relied upon by Mr.Tulzapurkar, the

question that the petitioners seek to raise could have been raised

by them by approaching the Tribunal. They could have

approached the Tribunal and prayed for a decision on the

question whether the property which is the subject matter of the

present petition is a Waqf property and because that is specified

in the list allegedly, by itself would it become a Waqf property or

not. Pertinently, one of the members of the petitioners' Forum

approached the Waqf Tribunal by filing a suit and unfortunately,

that was dismissed.

56. The petitioners before us do not rest their case only on the

assertion that the property in question is a Waqf property and

that there was a Waqf existing and governed by the Waqf Act,

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1995. They raise the question of legality and validity of the order

of sanction of the Charity Commissioner on several grounds.

57. The petitioners are aware that they do not have cogent and

reliable material to establish and prove their case, which is

vaguely set up by them.

58. In the writ petition, the petitioners say that Haji Ismail Haji

Habib Musafirkhana Trust is a Public Charitable Trust registered

with the Charity Commissioner's Office bearing registration P.T.R.

B-140(BOM) and they say in the petition itself that they are

Indian Muslims. They are members of the "Haji Ismail Haji Habib

Musafirkhana-Shop Tenant Forum". Now, the petitioners say that

26 tenants having commercial properties have come together and

formed this proposed Forum. They have authorised Mr.Fazal

Mehmood to represent them and file proceedings. In the writ

petition, there is a clear reference to the MPT Act. In fact, the

petitioners say that they are beneficiaries and tenants/occupants

of the third respondent-Trust and are interested persons as

defined in Section 2(13) and Section 73A of the MPT Act.

59. The petitioners do not assert their status as "tenants", but

term themselves as "occupants". They are not referring to any

Waqf, but say that they are beneficiaries of a Public Charitable

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Trust and that they are persons interested in the affairs of the

Public Trust governed by the MPT Act.

60. In para 3 clause (a), it is said that the property bearing City

Survey No.4315 situate at 23-43 Pakmodia Street, 16-30, 2 nd

Cooper Street and 27-41 Yacoob Street, Bhendi Bazar, Mumbai

400 003 belongs to Haji Ismail Haji Habib Musafirkhana Trust.

This is the third respondent, which is a Public Charitable Trust

bearing registration No.P.T.R.140(BOM) and the petitioners claim

to be the lawful tenants of the Trust. The petitioners say that on

11th September, 2017 and 3rd October, 2017, the members of the

petitioners' Forum received two letters from respondent No.8.

Respondent No.8 claimed that it is the landlord and owner of the

property described hereinabove. Respondent No.8 claims to be

the new owner of the Trust. The petitioners claim that they have

not received any communication of change of landlord from the

original trustees nor they were aware about the alienation of the

Trust property by respondent No.3. The petitioners state and

submit that they inquired about the claim of the eighth

respondent during June-July 2018 and got knowledge that

respondent No.3-Trust made an application under Section 36(1)

(a) of the MPT Act in regard to alienation and sale of the property

in question. The description of the property is as above. The

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petitioners then say that from the certified copies received from

the office of the third respondent, it was discovered by them that

Application No.J-4/48/2012 was filed before the Charity

Commissioner by respondent Nos.3 to 7. That application

contained averments to which we have already made a reference

in the foregoing paragraphs. Then, in para 3(e) of this petition,

the petitioners say that the scheme of the Trust was framed by

this Court in Suit No.741 of 1944 and the main object of the Trust

was to provide rooms to the needy people by taking rent for the

same. There is a vague assertion in this sub-paragraph and to the

effect that the property also consists of a "Masjid" which is used

for performing five time prayers by the petitioners as well as

public at large. The petitioners say in this sub-paragraph that

even though this "Masjid" exists in the Trust property, the same

was not included in the list of the Trusts transferred to Waqf

Board in view of the notification of the State Government dated

5th November, 2005.

61. With regard to this notification as well, we find that on 5 th

November, 2005, a notification was issued by the State

Government. The notification dated 30th December, 2004 was

published in the Maharashtra Government Gazette. That

notification says that the Government of Maharashtra under

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Section 5(1) and sub-section (3) of Section 3 of Central Waqf Act,

1995 has forwarded a list of Waqfs properties to the Maharashtra

State Board of Waqfs, Aurangabad for publication after scrutiny.

The Maharashtra State Board of Waqf, Aurangabad, after

scrutiny, resolved in the Board meeting held on 27 th September,

2003 to publish the lists of Waqfs under Section 5(2) of the said

Act. The Maharashtra Sate Board of Waqf has published the lists

of Waqfs under Section 5(2) of the said Act, forwarded by the

Government of Maharashtra. It says that if a dispute arises

whether a particular property is specified as a Waqf property in

the lists is a Shia Waqf or Sunni Waqf, the Board or Mutawalli of

the Waqf or any persons interested therein may institute a suit in

the Waqf Tribunal, Aurangabad for a decision on the question

within the period specified in this notification. While Sr.No.WB-

140 refers to "Haji Ismail Haji Habib Muzzaffarkhan Trust, 131

Paidhuni Road, Mumbai 400 003, it says that it is a Sunni

Religious Waqf. It has immovable property at Pakmodia Street.

What has then been brought to our notice by the parties before us

is that on 26th April, 2005, the Government published a

Corrigendum in the Government Gazette dated 5th May, 2005. It

says that list No.3 dated 9th March, 2005 of Maharashtra State

Board of Waqf and the Government of Maharashtra letter dated

8th February, 2005, as per the order of this Court in Writ Petition

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No.2127, requires a amendment to the earlier notification being

published. The amendment is relied upon to urge that the same

expressly deletes the Trust-Respondent No.3 in question. Now,

Mr.Gorwadkar hands over another notification published in the

Government Gazette dated 23rd October, 2008. That says that the

corrigendum to the Government Gazette notification of 13 th

November, 2003 was issued on 5th May, 2005 and that was issued

with reference to the Maharashtra State Board of Waqfs

Resolution No.3 dated 9th March, 2005 and the same was

published on 5th May, 2005. However, the Resolution No.3 dated

9th March, 2005 was cancelled and deleted by the Board in its

meeting vide Resolution No.17 of 2008 dated 3 rd April, 2008 and

confirmed that by Resolution on 27th May, 2008. Hence, the

corrigendum published in the Maharashtra Government Gazette

of 5th March, 2005 automatically stands cancelled. The result is

that the original notification of List of Waqf properties published

on 13th November, 2003 remains as it is.

62. To our mind, the property that is described with the name

of the Trust, by the petitioners themselves, is specific. The name

of the Trust is Haji Ismail Haji Habib Musafirkhana Trust. The

Public Charitable Trust is a nomenclature attached to this Trust.

It is specifically with reference to its registration number and

issued to it after the registration is sought under the MPT Act.

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63. The MPT Act has been enacted by the competent legislature

to regulate and to make better provision for the administration of

public religious and charitable trusts in the State of Bombay.

Section 2 contains definitions and the term "beneficiary" is

defined in clause 2A to mean any person entitled to any of the

benefit as per the objects of the trust explained in the trust deed

or the scheme made as per this Act and constitution of the trust

and no other person. This clause has been inserted by

Maharashtra Act No.55 of 2017. The term "Charity

Commissioner" is defined to mean the Charity Commissioner

appointed under section 3 and other definitions include the

definition of the term "person having interest". That appears in

Section 2 clause 10. It is an inclusive definition. It includes in

sub-clause (c) in the case of a waqf, a person who is entitled to

receive any pecuniary or other benefit from the waqf and includes

a person who has right to worship or to perform any religious rite

in a mosque, idgah, imambara, dargah, maqbara or other religious

institution connected with the waqf or to participate in any

religious or charitable institution under the waqf. The word

"Waqf" is also defined in Section 2 clause 19 as under :-

"Wakf" means a permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes a wakf by user and grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious Page 66 of 106 M.M.Salgaonkar

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or charitable and a wakf-alal-aulad to the extent to which the property is dedicated for any purpose so recognised; but does not include a wakf such as is described in section 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any member of his family or descendants."

64. Thus, these two definitions together with the definition of

the term "Public Trust" as appearing in Section 2 clause 13 and

which defines that expression to mean an express or constructive

trust for either a public religious or charitable purpose or both

and includes a temple, a math, a wakf, church, synagogue, agiary

or other place of public religious worship, a dharmada or any

other religious or charitable endowment and a society formed

either for a religious or charitable purpose or for both and

registered under the Societies Registration Act, 1860, would

enable us to hold that in the instant case, when the suit was filed

in the year 1944 and the scheme was settled by this Court in the

year 1945 in relation to respondent No.3, it derived a

nomenclature as a Trust and a Public Trust because of the policy,

functioning and continuance of the scheme. Even in the MPT Act,

there is a specific Chapter III titled as "Charitable Purposes and

Validity of Certain Public Trusts, which contains Sections 9 to 13.

One of the sections, namely, Section 19 provides for "inquiry for

registration" and that provides for an inquiry, on receipt of an

application under Section 18, or upon an application made by any

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person having interest in a Public trust or on his own motion, by

the Deputy or Assistant Charity Commissioner in the prescribed

manner for the purpose of ascertaining, inter alia, whether a

Trust exists and whether such Trust is a Public Trust.

65. To our mind, therefore, all these provisions would denote

that as far as respondent No.3 is concerned, in the absence of any

decision with regard to its status under the Waqf Act, 1995, it

could have approached the Charity Commissioner and applied for

his sanction for sale of the Trust property. The property belongs

to a Public Trust. Respondent No.3 was and is a Public Trust and

continues to be so until any decision in terms of the Waqf Act,

1995. In the absence of a specific decision with regard to the

status, in the present proceedings, the petitioners may launch a

collateral attack, but they cannot clearly, by relying upon Section

112 of the Waqf Act, 1995, say that the same repeals the earlier

enactments and also repeals a law immediately before the

commencement of the Waqf Act, 1995 in any State and in force in

that State corresponding to Waqf Act, 1995 to urge that this

respondent No.3 is a Waqf and, therefore, the Waqf Act, 1995 was

the governing enactment.

66. As we have rightly held in the foregoing paragraphs, it will

not be possible for us to dislodge or demolish the proceedings

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before this Court of the year 1944, namely, Suit No.741 of 1944

and the scheme settled thereby. This scheme remains unaffected

even after the enactment of the MPT Act. In fact, the MPT Act

takes note of such schemes and which came into force by virtue of

the orders passed by the competent court. The specific Section,

namely, Section 50A by sub-section (1) opens with non obstante

clause. The Charity Commissioner is empowered to frame,

amalgamate or modify schemes. It is very clear that the further

Sections, namely, Sections 51, 52 onwards would denote that no

scheme which was in force prior to the enactment in question,

namely, the MPT Act, is bereft of any legal force or sanction. In

fact, all the provisions, which repealed the Religious Endowments

Act, 1863 by the MPT Act, clarify that any right, title, interest,

obligation or liability already acquired, accrued or incurred before

the said date, any legal proceedings or remedy in respect of such

right, title, interest, obligation or liability or anything duly done

or suffered before the said date shall not be affected by the repeal.

In the circumstances, we do not think that the scheme, which was

in force, has lost its legal sanctity. There was, therefore,

something more required to be done so as to dislodge the scheme

of 1945.

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67. Pertinently, this scheme has been expressly referred to in

the application made before the Charity Commissioner. The first

response of the petitioners to the right derived by respondent

No.8, commencing with their advocate notice does not say that

this scheme is not in force. In fact, they are aware of the

registration number. They are aware of the status that is derived

by respondent No.3 and in the writ petition itself, they make a

reference to the scheme of the Trust framed by this Court in Suit

No.741 of 1944. If that is how they are referring to respondent

No.3, now, they cannot turn around and claim that respondent

No.3 is not a Public Trust governed by the MPT Act. The flip-flop

on the part of these petitioners, whose status in law is also not

clear, would enable us to hold that there is no substance in the

arguments of Mr.Gorwadkar that the Waqf Act, 1995 applies to

respondent No.3 and that the property could not have been

disposed of, save and except in the manner provided in the Waqf

Act, 1995.

68. In fact, to the writ petition, no documents are annexed. No

documents seeking to prove the case that respondent No.3 is a

Waqf are annexed. In fact, in the grounds of this writ petition, the

petitioners urge that the Trust property belongs to "Sunni

Religious Trust" and is having a "Masjid" inside the premises.

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The same could not have been alienated as "Masjid" being a

religious structure, cannot be sold or bought for

development/redevelopment purpose. The other assertion is that

the Muslim Trust has been transferred from the Charity

Commissioner's office to the Maharashtra State Waqf Board.

Being aggrieved by the Circular, many Muslim Trusts had

approached this Court and its Benches at Aurangabad and

Nagpur against the said arbitrary transfer. Then the proceedings

in relation to such a transfer are referred to. The group matters

were heard by this Court and an order came to be delivered on

21st September, 2011. It is that order, which was challenged by

the aggrieved parties before the Hon'ble Supreme Court.

69. Thus, in the present petition, the petitioners make reference

to only one paragraph and leave out rest of the paragraphs in that

judgment of the Hon'ble Supreme Court. In the grounds, the only

assertion is that this judgment of the Hon'ble Supreme Court

would demonstrate and prove that respondent No.3 is a Waqf.

Now, we do not think that even this assertion and the vague

statements in the grounds are enough.

70. Pertinently, the petitioners rely upon the affidavit filed in

rejoinder. The affidavit that they have filed in rejoinder says that

respondent No.3 before us has referred to Government Gazette

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notification of the year 1944. Prior thereto, they referred to a

copy of the registration certificate. That copy, which is annexed

to the rejoinder affidavit, is relied upon, but a close look at that

would reveal that it is the Maharashtra State Board of Waqfs,

which is issuing this registration certificate. It is certifying that

Waqf Institution Haji Ismail Haji Habib Musafirkhana Trust,

which is already registered under the Bombay Public Trusts Act,

1950 (the MPT Act) under number B-B-140 alongwith its

properties have been taken down in the Waqf Register as per

Section 43 of the Waqf Act, 1995 as deemed registerd. Now,

Section 43 of the Waqf Act, 1995 falls under Chapter V titled as

"Registration of Auqafs". That Section 43 says that

notwithstanding anything contained in this Chapter (Chapter V),

where any Waqf has been registered before the commencement of

this Act, under any law for the time being in force, it shall not be

necessary to register the Waqf under the provisions of this Act

and any such registration made before such commencement shall

be deemed to be a registration made under this Act. We are sorry

to say that this certificate, copy of which is annexed as Exhibit 'B'

(Page 351 of the paper-book) dated 29th March, 2019, cannot be

said to be traceable to Section 43. Section 43 makes the

registration of the Auqafs and prior to the commencement of the

Waqf Act, to be a deemed registration under the Waqf Act, 1995.

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This registration certificate, copy of which is relied upon, does not

meet the requirement of Section 43 at all. In fact, a registration

number is sought to be assigned by this certificate in 2019. All

the more therefore, the claim of the petitioners based on this

document is doubtful. Then, a reference is made to the "Seth Haji

Esmai Haji Habib Musafarkhana Trust". Exhibit 'C' to the

affidavit-in-rejoinder is relied upon with the assertion in the same

and to the effect that the Gazette Notification of the Government

of the year 1944 notifies respondent No.3 in question as a Waqf at

page 34 of the said Gazette at Serial Number 163. Assuming that

this is Gazette extract and it says that there is a Waqf by name

"Seth Haji Esmai Haji Habib Musafarkhana Trust", yet, the

petitioners in this petition have impleaded respondent No.3 as

"Haji Ismail Haji Habib Musafirkhana Trust". The words "Seth"

and "Ismail" are conspicuous by their absence. To the affidavit-in-

reply filed by respondent No.3, and to which we do not find any

assertion to the contrary, is annexed a copy of the order of the

Court of Judicature at Bombay in Suit No.741 of 1944 dated 10 th

July, 1944 and which says that the persons who are impleaded as

plaintiffs reside at Kambekar Street without the Fort of Bombay

and that the Charities, in relation to which the scheme has been

declared by the Indenture of Trust dated 30 th October, 1864, is

"Haji Esmail Haji Habib Musafirkhana Trust". The order says that

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the first plaintiff died on 8th July, 1944, his name has been struck

off and the plaint and proceedings were amended accordingly.

After that amendment, the plaintiffs were heard and the Court

found from the Originating Summons, plaint and the affidavit of

the second plaintiff affirmed on that date and after hearing the

advocates, that a scheme be framed for administration and

management of the Trust mentioned in the plaint. That the

scheme as approved by the Advocate General of Bombay and

annexed to the order is thereby sanctioned. It is in these

circumstances that we do not think that we can displace this duly

authenticated copy of the order of this Court only on the basis of

the extract of the Bombay Government Gazette of the year 1944.

Even this document therefore will not carry the case of the

petitioners further.

71. Thereafter, reliance is placed on Exhibit 'D' and it is said in

relation to the Exhibit 'D' in this affidavit-in-rejoinder that it has

come to the knowledge of the petitioners from the material on

record from Department of Archives, Mumbai that respondent

No.3 was created as 'Waqf' and the names of the Mutawallis of the

same is enlisted at Serial No.163 in the list of Mutawallis of Waqfs

of Bombay registered under the Musallam Wakf Act No.XLII of

1923 as amended by Bombay Act No.XVIII of 1935. This is,

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therefore, the document based on which the assertion of the

petitioners is that respondent No.3 is created as a Waqf even prior

to 1935.

72. A careful perusal of this document would show that it is an

extract from what is referred as a proceeding before the Court of

Small Causes at Bombay under the Mussalman Wakf Act No.XLII

of 1923 as amended by Bombay Act No.XVIII of 1935. The subject

is "Election by the Mutawallis to elect their two representatives

on the Wakf Committee, Bombay". Thereafter it says that a list of

Mutawallis of all Waqfs in the City of Bombay registered under the

above Acts has been prepared. That is annexed to the

communication/proceedings before the Court of Small Causes at

Bombay. If any Mutawalli desires to object to any item or

particulars therein or wishes to have any amendment made, he

may apply to the Small Causes Court at Bombay in writing in

person or by pleader by 2 P.M. Thereafter, it says as to how the

meeting will be convened to elect the two representatives on the

Waqf Committee. Now, this is stated to be an order under the

signature of the Chief Judge of the Court of Small Causes, Bombay

dated 1st February, 1945. The petitioners say that it is the list of

Mutawallis of Waqfs in the city of Bombay registered under the

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No. XVIII of 1935. Now, based on this, it is argued that this list

has, at Sr.No.163, Waqf No. 3 year of 1931 and the name of the

Waqf is "Seth Haji Esmai Haji Habib Musafarkhana Trust". The

name of the Mutawalli mentioned is Abulkadar Tarmahomed

Noorani and he resides at Kambekar Street, Bombay -3.

73. Pertinently, we find that the affidavit, which has been filed

by the third respondent says that the plaintiffs in the suit filed

before this Court are, Gulam Husein Haji Hasham Noorani

(deceased at the time of the order dated 10th July, 1944), Abdul

Satar Mahomed Haji and Abubaker Mahomed Khamisa. Apart

from the difference in the name, there is no reference to the

individual- Abulkadar Tarmahomed Noorani. We are, therefore,

of the opinion that even this document cannot be said to be

decisive nor its contents can be accepted by us to hold that

respondent No.3 was a Waqf.

74. We do not think that we should also rely upon Exhibit 'F',

which is some translation from Arabic. The petitioners rely upon

the municipal extract to show that there was a Masjid and in that

there is an old marble plate embedded in one of the wall of the

Masjid in the said Musafirkhana. We are not at all impressed by

this rejoinder and we do not think that merely because the

prayers were offered in this place that it could be termed as

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"Masjid" and, therefore, the whole premises were dedicated to the

Almighty as claimed by Mr.Gorwadkar. On the other hand,

respondent No.7, who is supporting the petitioners, as also other

trustees of respondent No.3-Trust, have also described in their

affidavits, while asserting their stand, that there were

shops/godowns on the ground floor. In such circumstances, the

affidavit-in-rejoinder together with its annexures, including

photographs would not be of any assistance to the petitioners in

contending that the third respondent is a Waqf.

75. Even the Places of Worship (Special Provisions) Act, 1991 is

of no assistance. This Act is enacted to prohibit conversion of any

place of worship and to provide for the maintenance of the

religious character of any place of worship as it existed on the 15 th

day of August, 1947 and for the matters connected therewith or

incidental thereto. Mr.Gorwadkar would read one provision of

this Act in isolation and without in any manner understanding

the object and purpose of the same. Section 3 of this Act reads as

under:-

"3. Bar of conversion of places of worship.-No person shall convert any place of worship of any religious denomination or any section thereto into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof."

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76. Before us is not a controversy whether there is a pre-

existing and pre-established place of worship of any religious

denomination or any section thereto, which is sought to be

converted into a place of worship of different section of the same

religious denomination or any section thereof. The argument

before us is that the Trust (respondent No.3) belongs to one

religious denomination and there is a different section of the same

religious denomination (respondent No.8-Trust), which is

purchasing and acquiring the property of respondent No.3 under

a Deed of Conveyance. That Deed of Conveyance is executed

after the sanction or permission of the Charity Commissioner was

obtained by invoking Section 36(1)(a) of the MPT Act. This is,

therefore, not a conversion, but an acquisition of the property.

During the course of assailing that acquisition, a faint attempt is

made to show that the property comprises of Masjid and that

Masjid was used for offering prayers by members of Shia

Community and now after acquisition of the property by Sunni

Community, maybe of the same religion, this law is attracted. We

do not think that this law is, therefore, applicable and can be

invoked. All the more, when we have found that there is no

evidence of existence of Masjid as far as the subject immovable

property is concerned.

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77. Advisedly, therefore, Mr.Gorwadkar did not continue the

first assertion beyond a point. He made alternate arguments. His

alternate argument would require us to consider the judgment of

the Hon'ble Supreme Court relied upon by him. Mr.Gorwadkar's

reliance upon the judgment reported in the case of Mohammad

Shah Vs. Fasihuddin Ansari and others3 is entirely misplaced.

There, a section of the Mahomedan community at Jabalpur and

one Gulabshah and his son were locked in litigation since the year

1980 about portions of land that adjoin a mosque in Jabalpur

known as Kotwali Masjid. There, the admitted position was that

the masjid property and the ground on which it is built is Waqf

property. The said Gulabshah had claimed even the masjid as his

own property, but that was decided against him in the year 1881

and since then, he and after him, defendant to the suit have

admitted that the masjid property is wakf, but the dispute about

the rest continues and that is why the suit, which was filed in a

representative capacity from which the appeal to the Hon'ble

Supreme Court arose, came to be filed. The contention before the

Hon'ble Supreme Court was that the masjid property is now

admitted to be waqf property, that the other properties surround

the mosque and adjoin it and on five specific acts of user that are

set out in para 7 of the plaint and, particularly, a general

3 1956 SC 713

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assertion that these buildings and lands have always been used

for the benefit of the community. Paragraph No.16, which is

relied upon, cannot be read in isolation and equally the other

paragraphs, on which heavy reliance is placed by Mr.Gorwadkar.

Thus, this was a case solely resting upon the allegations in the

plaint and an assertion to the contrary. We do not think that this

judgment is of any assistance for deciding the issue at hand.

78. Then, Mr.Gorwadkar relies upon the judgment of the

Hon'ble Supreme Court in the case of Uttar Pradesh Sunni

Central Board of Wakfs vs. Mazhar Hasan and Others 4. There, the

properties were registered as waqf. A reference was made under

the Uttar Pradesh Muslim Waqfs Act, 1960 for cancellation of

registration. The property in question was a Muslim

Musafirkhana situate in Kazipura, City Baharich in the State of

Uttar Pradesh, consisting of 24 rooms, one courtyard etc. The

respondents' case was that the property in question was owned

by a society of which the respondents have been office-bearers,

that they have been in possession of the suit property and that

they purchased the said land, on which the accommodation exists

and, therefore, the provisions of Sections 29 to 33 of the Act did

not apply. The registration of the property in dispute as waqf is

illegal, null and void. That reference was resisted by the

4 (2001) 6 SCC 289

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appellant on the grounds that the land in question was purchased

from the subscription given by the Musalman public and the

building was also constructed out of such donations given by the

general public. The purpose of the collection of these funds and

donations made by Musalmans in general was a charitable one.

That was for construction of a Muslim musafirkhana in order to

relieve them from the shortage of accommodation and for

religious purpose, a mosque was also constructed within the

musafirkhana. Hence, the registration was in accordance with

law. Once this mosque was part and parcel of the musafirkhana

and that musafirkhana is meant for charitable purposes so also is

of a religious character, then, the registration was defended. But,

the Tribunal allowed the reference and set aside the registration.

The matter was taken in revision to the High Court, which

affirmed the Tribunal's view and dismissed the revision petition.

The issue was absence of proof of dedication by a dedicator having

Muslim faith and absent such dedication, the property could not

be said to be a waqf property nor it can be deemed to be waqf

property. The High Court was of the view that the dedication

carries with it an idea of voluntary self-donation without any

demand or appeal and that subscription or donation made on

appeal being made by the people at large cannot be taken to be the

donation of property of a permanent character, which is the

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essential ingredient of the definition of Waqf under the Act. The

High Court was, therefore, held not justified in cancelling the

registration. Paras 3 and 4 of this judgment would denote that

the controversy was peculiar. It was purely factual. If there was

already a musafirkhana set up for religious as also for charitable

purposes, then the mosque is part and parcel of musafirkhana

and the object for which the property in question has been set

apart or dedicated, is charitable, pious or religious in nature.

Since there was evidence of user, the Court held that the

dedication was complete. It could not be divested for any other

purpose. In such circumstances, the judgment of the High Court

was reversed. We cannot read the paragraphs relied upon in

isolation and totally out of context.

79. In the case of Cyrus Rustom Patel vs. Charity

Commissioner, Maharashtra5, the Hon'ble supreme Court found

that the appellant questioned the dismissal of his writ petition.

The High Court refused to interfere with the order of sanction

passed by the Joint Charity Commissioner granting sanction to

development-cum-sale transaction. There was a Trust registered

under the Bombay Public Trusts Act, 1950. The Trust agreed to

enter into an agreement with M/s Astral Enterprises. The

minutes of the meeting noted that the tenants in the premises

5 (2018) 14 SCC 761

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had, in principle, agreed to the development of the Trust

property, on the condition that the interest of the tenants would

be looked after and that they would be provided flats in new

building on ownership basis, and that the development would be

completed in a time bound manner. The partner of the Developer

Firm was invited to the meeting and after the discussion and

deliberations noted, an application was made to its sanction.

Further, the development agreement was with respect to "Fire

Temple" situate at Tardeo, Mumbai. On that property, there was a

Fire Temple and certain other structures occupied by 21

occupants in the capacity of tenants. There was no further

availability of FSI. Paras 5 and 6 contain the factual assertions in

the application, based on which, the Charity Commissioner

accorded sanction. The Charity Commissioner found that there

was an explanation given by way of an affidavit and which was

acceptable, that the public notice was not mandatory in all cases

before a grant of sanction.

80. The arguments of the counsel before the Hon'ble Supreme

Court centered and revolved around the Charity Commissioner's

sanction without safeguarding the interest of the Trust. The

property is a prime property in Mumbai. It is worth more than

what it had been sold away. The Full Bench judgment of this

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Court in Sailesh Developers (supra) laid down the principle that it

was open to the Charity Commissioner to take care of the interest

of the Trust in such transactions, and if necessary, to invite the

other best offers to safeguard the interest of the Trust. It is in

that context, the reliance was placed on earlier decisions of the

Hon'ble Supreme Court. Then, the other argument was made by

the respondents and they argued that the competent authority-

the Joint Charity Commissioner had duly accorded sanction

under Section 36 of the Act and at the relevant time, it was not

open to the Charity Commissioner to make much interference in

such a matter. It was not even open to the Hon'ble Supreme Court

to interfere in such a matter, in view of the decision of this Court

in Vedica Procon (P) Ltd. v. Balleshwar Greens (P) Ltd. 6. The

Hon'ble Supreme Court held thus:-

"2. The B.C. Batliwala Agiary Trust is registered under the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the Act'). The Trust, in its meeting dated 20-1-2003, decided to enter into an agreement with M/s. Astral Enterprises. It was noted in the minutes of the meeting that the tenants in the premises had, in principle, agreed to the development of the Trust property at Tardeo, on the condition that the interest of the tenants would be looked after and that the tenants would be provided flats in new buildings on ownership basis, and that the development would be completed in a time bound manner by the said developer.

3. The minutes of the trustees meeting dated 20-1-2003 states that Shri Suresh Mehta, partner of M/s. Astral Enterprises, had been invited to the meeting. It was decided that in case there was any difficulty in carrying

6 (2015) 10 SCC 94

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out the development agreement, it would be converted into an outright sale. The Trustee would have an exit option. It was decided that development would be on a time-bound basis. The registration charges of the deed would be borne by the developer, as well as the cost of construction. Trustees would have an exit option if trustees felt that it was not in the interest of the Trust to carry on with the joint venture development; the trustees alone shall have the option to convert the joint venture arrangement into a sale, in that event M/s. Astral Enterprises would require paying a fixed predetermined price to the Trust. The application was filed under the provisions of Section 36 of the Act, for granting sanction to enter into joint venture-cum-sale agreement between the Trust as well as the M/s. Astral Enterprises.

4. The aforesaid development agreement was with respect to "Fire Temple", bearing Cadastral Survey No.727 of Malabar Hill Division, Mumbai admeasuring about 3012 sq. m, situated at 160 Tardeo, Mumbai. On the said property stand a "Parsi Fire Temple" and certain other structures that are occupied by 21 occupants in the capacity of tenants. There was no further availability of FSI.

5. It was mentioned in the application filed under Section 36 of the Act that construction of the temple was done prior to 1940, it was old and in a dilapidated condition, and required extensive repairs. The Trust was getting a meagre income from the building. It was in need of funds to meet the objectives of the Trust; as such trustees decided to develop the property after prolonged discussions. As the Trust had no such funds as were required for carrying out the construction work, it was considered necessary to take help of the developer. M/s. Astral Enterprises was ready to provide the necessary services to the Trust, with a proposal to jointly develop the property. It transpires that agreement for joint venture development-cum-sale had been entered into and ultimately sale had been effected, for a sum of Rs.2, 95,00,000.

6. The Charity Commissioner had accorded the sanction under Section 36 of the Act. Though it was noted by the Charity Commissioner that no public notice had been published in the newspaper for inviting the offers, yet for non-publication of the same in newspapers, the applicant, gave an explanation by way of an affidavit,

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that public notice was not mandatory in all cases, before a grant of sanction.

.....

10. The learned counsel appearing on behalf of the appellant urged that in the instant case, the Charity Commissioner while granting sanction has not safeguarded the interest of the Trust. The property is a prime property in Mumbai. It is worth multifolds more than at what it had been sold away. The relevant aspect to grant sanction under Section 56 of the Act had been considered by a Full Bench of the High Court at Bombay in Sailesh Developers v. Charity Commr 2007 (4) ALL MR100: (2007) 3 Bom. CR7, in which it has been held that it was open to the Charity Commissioner to take care of the interest of the Trust in such transactions, and if necessary, to invite the other best offers to safeguard the interest of the Trust.

11. The learned counsel for the appellant has also relied upon the decisions of this Court in Chenchu Rami Reddy and Another v. Govt. of A.P. and Others (1986) 3 SCC 391; R. Venugopala Naidu and Ors. v. Venkatarayulu Naidu Charities and Ors. (1989) Supp. 2 SCC 356, Bhaskar Laxman Jadhav v. Karamveer Kakasaheb Wagh Education Society, (2013) 11 SCC 531.

.....

14. It was also submitted on behalf of the respondents that the competent authority the Joint Charity Commissioner had duly accorded sanction under the provisions contained in Section 36 of the Act, and at the relevant time, it was not open to Charity Commissioner to make much interference in such a matter. It was not open even to this Court to interfere in such a matter, in view of the decision of this Court in Vedica Procon Private Limited v. Balleshwar Greens Private Limited and Others; (2015) 10 SCC 94.

.....

18. It was also observed by this Court in Chenchu Ram Reddy (supra) that public officials and public-minded citizens entrusted with the care of 'public property' have to show exemplary vigilance; the property of religious and charitable institutions or endowments must be jealously protected. The sale of such a property by

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private negotiations which will not be visible to the public eye, and may even give rise to public suspicion, should not be, therefore, made, unless there are reasons to justify the same. This Court observed:

"10. We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has a beneficial interest in it (that is the raison d'etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorized to sell by private negotiations, can, in a given case, enter into a secret or invisible under-hand deal or understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations, which will not be visible to the public eye and may even give rise to public suspicion unless there are special reasons to justify doing so? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution, we close the matter."

19. Again, in R. Venugopala Naidu (supra), this Court observed that fraudulent sale of the property of public charities by way of private negotiations should not be permitted. This Court further held that reserved price should be fixed after ascertaining the market value and offer of higher price by filing an affidavit. In the aforesaid case, the Subordinate Court and the High Court, instead of going into the merits of the case, non- suited the plaintiffs on the ground of locus standi. This Court had considered the fact that the value of the property which the trust got was not the market value, and quashed and set aside the sale order of the subordinate court and the consequent sale. Relying on Chenchu Ram Reddy (supra), this Court observed: Page 87 of 106

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"13. The subordinate court and the High Court did not go into the merits of the case as the appellants were non-suited on the ground of locus-standi. We would have normally remanded the case for decision on merits but in the facts and circumstances of this case, we are satisfied that the value of the property which the trust got was not the market value. Two persons namely S.M. Mohamed Yaaseen ad S.N.M. Ubayadully have filed affidavit offering Rs.9.00 lacs and Rs. 10.00 lacs respectively for these properties. In support of their bonafide, they have deposited 10% of the offer in this Court. This Court in Chenchu Ram Reddy and another v. Government of Andhra Pradesh and Others have held that the property of religious and charitable endowments or institutions must be jealously protected because a large segment of the community has a beneficial interest therein. Sale by private negotiations, which is not visible to the public eye and may, even give rise to public suspicion, should not, therefore, be permitted unless there are special reasons to justify the same.

It has further been held that care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment."

.....

21. This Court in Bhaskar Laxman Jadhav (supra) further observed that the lack of bonafide of trustees and the petitioners could not have been overlooked by the High Court. Therefore, the safest course was to sell off the trust land through auction. It was also observed that it was quite clear that due to the passage of time, the value of the trust land had increased considerably, and that it would be in the best interest of the Trust if the maximum price is made available for the trust land from the open market. This Court also observed that under Section 36 of the Act enjoins duties on the Charity Commissioner to consider the sale of immovable property of the trust with regard being had to the "interest, benefit or protection" of the trust. This Court considered the decision in Chenchu Rami Reddy case (supra) and held that the only course available to the High Court was to mould the relief and to direct the Charity Commissioner to have a relook at all the bids received pursuant to the public notice dated 19-02-2007. In Bhaskar Laxman Jadhav (supra), this Court observed:

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"30. It was also submitted that since Shri Vyankatesh Mandir Trust is a charitable trust, it was expected of the High Court (as also this Court) to subserve the larger interest of the charitable trust. In achieving this, necessary and appropriate orders can be passed for the ultimate benefit of the trust. In support of this submission learned counsel for respondent No.1 relied on Chenchu Rami Reddy v. Government of Andhra Pradesh (1986) 3 SCC 391, R. Venugopala Naidu v. Venkatarayulu Naidu Charities (1989) Supp 2 SCC 356, and Mehrwan Homi Irani v. Charity Commissioner (2001) 5 SCC 305.

.....

5. Section 36 of the Act clearly provides that the trustees may be allowed by the Charity Commissioner to dispose of immovable property of the Trust with regard being had to the "interest, benefit or protection" of the Trust. It cannot be doubted that the interest of the Trust would be in getting the maximum for its immovable property.

.....

23. Before coming to the facts and circumstances of the case, we propose to take note of the decision relied upon by the respondent- developer in Vedica Procon Private Limited (supra). In that case, this Court considered irregularity in the conduct of sale of the property. It was observed that duty of the Court was to satisfy itself that having regard to the market value of the property, the price offered was reasonable and when rights had been acquired as per the law, it could not be disturbed. No subsequent higher offer can be considered as a valid reason. Once the Court reaches a conclusion that adequate price was offered, a subsequent increase in the value, or any subsequent higher offer, is of no avail. In case after the auction the value of the properties had increased, it would not be a ground to recall the auction, and to interfere in the auction sale. The offer of a higher price than that of the successful bidder was made after the sale had been confirmed, and there were no allegations of fraud, irregularity, and inadequacy of price when the sale was confirmed. This Court has observed:

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"47.A survey of the above-mentioned judgments relied upon by the first respondent does not indicate that this Court has ever laid down a principle that whenever a higher offer is received in respect of the sale of the property of a company in liquidation, the Court would be justified in reopening the concluded proceedings. The earliest judgment relied upon by the first respondent in Navalkha & Sons laid down the legal position very clearly that a subsequent higher offer is no valid ground for refusing confirmation of a sale or offer already made. Unfortunately, in Divya Mfg. Co. this Court departed from the principle laid down in Navalkha & Sons. We have already explained what exactly is the departure and how such a departure was not justified."

.....

27. In the instant case, the Joint Charity Commissioner was required to consider the interest and benefit of the Trust. We are compelled to observe that Joint Charity Commissioner has totally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint Charity Commissioner in its Order clearly reflect that Charity Commissioner has failed to exercise the duties enjoined upon to protect trust under Section 36 of the Act. It has not considered the interest, benefit, and protection of the trust at all. The order is wholly perverse. Joint Commissioner abdicated its responsibilities, in as much as it observed that it was the outlook of the Trust as to whom it wanted to sell the property, and as certain development was to be made; as such market value of the property was not a relevant consideration. There is the sale made in the form of Joint Venture development cum sell agreement and lease was for 999 years. Right from the beginning, it was to be a joint venture agreement coupled with a sale option, as apparent from the minutes of the meeting of the trust. The trustees had been acting in collusion with developer even before resolution had been passed. Negotiations were going on with M/s. Astral Enterprises- developer.

28. It was not disputed at Bar, by the trust or the developer, that it was a case of the sale, and right from beginning an option for sale was made. No effort has been made by the Trust, in case the sale was necessary, to ascertain the real market value of the property, nor

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has it been ascertained by the Joint Charity Commissioner. The property is located in a prime location of the city of Mumbai, at Malabar Hill Division near Central Mumbai Railway Station, and that the market value was, obviously, sky high as compared to paltry sum offered.

29. This is a prestigious locality, where one would cherish to own a property, and in the true sense, it would be like a treasure house. We unhesitatingly take judicial notice of the fact, that such a huge area could not have been sold for a paltry sum of Rs.2,95,00,000/-. Trustees, as well as Joint Commissioner, have failed to act in the interest, benefit and to protect the Trust, and the same could not have been sold by such private negotiations. In our opinion, the value was many a time more at the time of entering into the agreement. The paltry sum that was reserved by the Trust could not be said to be in the interest and benefit of the trust. Merely obtaining a valuation report, from a person of choice, without making any serious effort to ascertain the market value by way of any method known to law, and fixing its reserve price, was an eye- wash; such a dubious transaction was not at all acceptable, and it shocks conscience as to how such a valuable property could have been sold at such a throw-away price. Thus, we find, on the basis of the principles laid down in aforesaid decisions, and even on the basis of the decision relied upon by the learned counsel appearing on behalf of the developer, in Vedica Procon Private Limited (supra), that the respondents have no case at all. In the later decision, this court unequivocally held that sale should be at market price. In this case, no such effort had been made; it has not been considered as to why the trust should sell such a valuable property at all, and as to what was the compelling necessity. Ordinarily, the trust property is to be protected, such property is held in trust; in case its condition was not good, there could be several other ways to improve it; it could not have been achieved by virtually throwing away the property."

81. The Hon'ble Supreme Court made the aforesaid

observations because we found that in case before it, the Charity

Commissioner was required to safeguard the interest and benefit

of the Trust. That is paramount and about that there never can

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be any dispute. Secondly, the Hon'ble Supreme Court observed

that the Charity Commissioner totally abdicated his duty and

failed to act as per mandate of Section 36. The observations made

by him in his order reflected that he failed to exercise the duty to

protect the Trust. The Joint Charity Commissioner did not

consider the interest, benefit and protection of the Trust at all.

The order was found to be perverse. The Joint Charity

Commissioner did not find it fit to probe the matter from the

above angles. The Joint Charity Commissioner has observed that

it was the lookout of the Trust as to whom it wanted to sell the

property, and as certain development was to be made; as such

market value of the property was not a relevant consideration.

The case was of a sale made in the form of joint venture

development-cum-sale agreement and lease was for 999 years.

Right from the beginning, it was to be a joint venture agreement

coupled with a sale option. The trustees acted in collusion with

the developer even before the resolution had been passed and

negotiations were going on with the developers. Thus, the

observations in paras 27 to 29 would denote that in the factual

backdrop, the Hon'ble Supreme Court came down heavily on the

trustees and the Joint Charity Commissioner.

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82. In that process and because of the duty castes on the

Charity Commissioner by law, the Hon'ble Supreme Court thought

it fit to reproduce the observations made by the Full Bench of this

Court in Sailesh Developers (supra). In Sailesh Developers

(supra), the controversy was whether there was a conflict

between the views expressed in the two Division Bench

judgments of this Court, interpreting Section 36 of the MPT Act.

The Full Bench found that the narrow view has rightly been

criticised. The power that is conferred in the Charity

Commissioner is coupled with a duty. While exercising that

power, he can impose conditions having regard to the interest,

benefit or protection of the Trust. Before passing an order of

sanction or authorisation, the Charity Commissioner has to be

satisfied that the Trust property is required to be alienated. Once

he is satisfied about this aspect and that the alienation is in the

interest of Trust or for the benefit of the Trust or for the

protection of the Trust, then, it cannot be said that this power is

restricted either to grant sanction to a particular proposal of the

trustees or to reject it. It is the duty of the Charity Commissioner

to ensure that the transaction of alienation is beneficial to the

Trust and its beneficiaries. He has to ensure that the property is

alienated to a purchaser or buyer whose offer is the best in all

respects. It is not necessary in every case that the Charity

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Commissioner has to ensure that property is sold by the trustees

to the person offering highest price or consideration. What is the

best offer in the interest of the Trust will again depend on facts

and circumstances of each case. The Hon'ble Supreme Court

while reproducing these paragraphs and emphasising that the

Charity Commissioner is not powerless and does not act as a

rubber stamp or exercise the power only to put his stamp of

approval on a particular transaction, held that the Charity

Commissioner's power is not restricted. He can enjoin the

trustees to sell or transfer the Trust property to a third party,

who has given an offer, which is the best in the interest of the

Trust. That is when the Charity Commissioner is satisfied that

the Trust property needs to be alienated and when he finds that

the offer received by the trustees may not be the best offer, he can

always direct the bids by public notice. Therefore, the power

conferred in the Charity Commissioner is not restricted and

cannot be placed in a straight jacket nor can a formula be devised,

which will be applied in all cases covered by Section 36. That is

why the Full Bench answered the question referred to it by

holding that while the Charity Commissioner considers the

application made before him to grant sanction, his power is not

confined merely to grant or refuse sanction to a particular sale

transaction in respect of which sanction is sought, but the power

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extends to inviting offers from the members of the public and

directing the trustees to sell or transfer the Trust property to a

person whose bid or quotation is the best. Thus, the Charity

Commissioner is obliged to consider the interest, benefit or

protection of the Trust. In these circumstances, we do not think

that the answers by the Full Bench to the questions referred to it

can be read in the manner suggested by Mr.Gorwadkar. It is not

an absolute proposition as is sought to be culled out by

Mr.Gorwadkar. The Charity Commissioner is not expected or

obliged to compel the trustees to issue a public notice and

advertise the same so as to invite offers from the interested

persons or bidders. It is in cases of the nature found by the

Hon'ble Supreme Court and the Full Bench of this Court that sale

of Trust property, which is like public property, if at all necessary,

is not permissible by way of private negotiations. That could be

done only in exceptional circumstances for the reasons to be

recorded. In the case before the Hon'ble Supreme Court, there

were no exceptional circumstances, no urgency to throw away the

valuable property of the trust. That was derogatory to the

interest of the Trust and would have defeated the very object of

the creation of the Trust for the preservation and protection of

religion and Parsi culture. To our mind, therefore, we cannot

apply the judgment of the Hon'ble Supreme Court to all cases

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unless we record our reasons either for disapproving the sanction

granted by the Charity Commissioner or to overturn it.

83. Even the case of Ritesh Tewari and another vs. State of

Uttar Pradesh and others7 relied upon by Mr.Gorwadkar

considers an issue when there was a suppression of material

facts. The High Court could not have been taken for a ride and

rather it was its duty as custodian of the Constitution to maintain

the social balance by interfering where necessary for sake of

justice and refusing to interfere where it is against the social

interest and public good. The order when bad from its inception

cannot become legal later on and this proposition would apply to

the facts and circumstances of each case. We do not think that

this principle has any application to the present case.

84. The reliance on the judgment of the Hon'ble Supreme Court

in the case of Sayyed Ali and others vs. A.P.Wakf Board,

Hyderabad and others8 is once again misplaced. There, the

Hon'ble Supreme Court concluded that there was a Waqf.

However, it was contended that one portion or one patta of the

Waqf property was granted in favour of Mokhasadars. Therefore,

that patta or portion could not be taken as Waqf property. The

Hon'ble Supreme Court found that once a Waqf is a permanent

7 (2010) 10 SCC 677 8 (1998) 2 SCC 642

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dedication of property for purposes recognized by Muslim law as

pious, religious or charitable and the property having been found

as Waqf, it would always retain its character as a Waqf. Merely

because one patta of that property was granted in favour of

Mokhasadar under the Inams Act, this character as Waqf

property is not lost.

85. Even this decision, to our mind, has no application to the

present case. All the more, when we have found that the property

is not a Waqf property.

86. All that now remains is to consider whether the reliance

placed by the petitioners on the judgment of the Hon'ble Supreme

Court is well placed.

87. A copy of the judgment of the Hon'ble Supreme Court has

been annexed to the petition.

88. The Hon'ble Supreme Court in the case of Maharashtra

State Board of Wakfs vs. Shaikh Yusuf Bhai Chawla and others 9

considered the challenge to the judgment and final order dated

21st September, 2011 of this Court. The subject matter of all the

writ petitions was the incorporation of the Maharashtra State

Board of Waqfs and its impact upon the Waqfs created by persons

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professing Islam, but belonging to different sects. After referring

to the factual aspects and the ultimate directions, the Hon'ble

Supreme Court found that it was necessary to trace the history of

this law. The circular issued by the Charity Commissioner

relinquished this authority created over the Trusts created by

Muslims, although they did not attract the provisions of Waqf Act.

The Hon'ble Supreme Court noted all the submissions and then

passed an interim order. At the interim stage, it restricted the

issue as to whether the stay granted by the Bombay High Court

on 21st September, 2011 should continue in a modified form. The

Hon'ble Supreme Court found that vesting of powers of

management and supervision of Muslim Waqf estates in

Maharashtra in the Charity Commissioner by virtue of the

impugned order is improper. The Hon'ble Supreme Court held

that the Waqf Board was constituted under the Waqf Act, 1995,

but not at full strength as envisaged in Sections 13 and 14 of the

same. On the day, when the Hon'ble Supreme Court passed the

order, there was no properly constituted Board of Waqfs

functioning in the State of Maharashtra. The administration of

Waqfs in Maharashtra cannot be kept in vacuum. The Division

Bench of this Court found that till the Board of Waqfs is properly

constituted, the Charity Commissioner would continue to

administer the Muslim Waqf properties, which had already been

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registered as Trust properties with the Charity Commissioner

under the Bombay Public Trusts Act. Therefore, the list of Waqfs

published by the truncated Board of Waqfs was set aside by the

Bombay High Court. The Hon'ble Supreme Court found that the

Bombay Public Trusts Act was not a corresponding law. It,

therefore, did not stand repealed. However, it cannot be also said

that this law would be applicable to the Waqf properties, which

are not in the nature of public charity. That is why, the Hon'ble

Supreme Court made the fine, but important distinction as

under:-

"28. Section 112 concerns repeal and savings. By virtue of the said provision, the 1954 Wakf Act and the 1984 Wakf (Amendment) Act were repealed. Sub-Section (3) specifically provides as follows:-

"112. Repeal and Savings.....

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) If immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act, that corresponding law shall stand repealed."

Although, it cannot be said that the Bombay Public Trusts Act was a corresponding law and, therefore, stood repealed, it cannot also be said that the same would be applicable to Wakf properties which were not in the nature of public charities. There is a vast difference between Muslim Wakfs and Trusts created by Muslims. The basic difference is that Wakf properties are dedicated to god and the "Wakif" or dedicator, does not retain any title over the Wakf properties. As far as Trusts are concerned, the properties are not vested in God. Some of the objects of such Trusts are for running

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charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust of the Trustees. At times, the dividing line between Public Trusts and Wakfs may be thin, but the main factor always is that while Wakf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries.

29. In the present case, the difference between Trusts and Wakfs appear to have been overlooked and the High Court has passed orders without taking into consideration the fact that the Charity Commissioner would not ordinarily have any jurisdiction to manage the Wakf properties.

30. In these circumstances, in our view, it would be in the interest of all concerned to maintain the status quo and to restrain all those in management of the Wakf properties from alienating and/or encumbering the Wakf properties during the pendency of the proceedings before this Court. The order of the High Court staying the operation of its judgment has led to the revival of interim orders which have rendered such stay otiose. The said order of stay cannot also be continued during the pendency of these proceedings in its present form.

31. Accordingly, at this stage, we direct that in relation to Wakf properties, as distinct from Trusts created by Muslims, all concerned, including the Charity Commissioner, Mumbai, shall not permit any of the persons in management of such Wakf properties to either encumber or alienate any of the properties under their management, till a decision is rendered in the pending Special Leave Petitions."

89. The Hon'ble Supreme Court was aware of the fact that there

are Muslim Waqfs and Trusts created by Muslims. The later could

be brought under the purview of the MPT Act for the Charity

Commissioner to exercise the powers in relation to them.

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90. To our mind, therefore, far from supporting the arguments

of Mr.Gorwadkar, these observations would militate against them.

We have applied the very principle, which has been set out in

these paragraphs of this judgment, to the facts of the present

case.

91. Now, what remains for our consideration is the final

argument and in the alternative canvassed by Mr.Gorwadkar. We

have already dealt with and rejected his two arguments. There is

no mandate to issue a public notice as was contended by

Mr.Gorwadkar. The Charity Commissioner has to exercise the

powers under the four corners of law and, particularly, Section

36. We find that all the assertions in the application made before

him are totally uncontroverted. Based on the assertions, the

Charity Commissioner found that there was a legal necessity of a

compelling nature to dispose of the Trust property. The Trust

property comprised of a old and dilapidated building in a very

dangerous and ruinous condition and likely to fall. A notice was

already issued by the Municipal Corporation of Greater Mumbai

for its demolition. Secondly, the Trust found that the income

generated from this property is meager. It is not enough to carry

out the repairs and routine maintenance as well. The building

was not only encumbered, but also encroached or trespassed

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upon. The original occupants/tenants were nowhere on the scene,

but those who have occupied for decades together were not

evicted also. There was no possibility of their eviction because a

suit was filed in the year 2003 and when the trustees found that it

was not possible to have this suit decided despite nearly ten years

of institution, it took a call and considered the offer of the another

Trust, namely, respondent No.8. Respondent No.8 took over all

obligations of the trustees, including rehabilitation/removal of the

trespassers and encroachers. They took over the property, which

was highly encumbered and encroached upon, on as is where is

basis. The building was constructed in the year 1939. It was

nearly 80 years old. With regard to such a property, there was no

hope of any better offer being received and, therefore, the

trustees passed the resolution and entered into the agreement for

sale/Memorandum of Understanding. The clauses of the

Memorandum of Understanding were carefully perused by the

Charity Commissioner to record a satisfaction that not only there

was compelling legal necessity, but the interest and benefit of the

Trust is not adversely affected at all. Rather, it is for the

protection of the Trust that the alienation is necessary. He found

that respondent No.8 had undertaken the obligation to

rehabilitate and rehouse all the occupants of nearby building in a

huge area admeasuring 16.5 acres. It was implementing a cluster

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redevelopment scheme. In fact, it has already secured the

eviction of the occupants of other buildings. It had obtained

necessary approvals and permissions from the Mumbai

Municipal Corporation and the Planning Authority. It was a huge

project and in which, respondent No.8 took over the obligation to

remove each of the occupants, temporarily rehouse or if not

acceptable to him, to pay a monthly compensation at the agreed

rate, to bring him back in the new construction and give him

rights of ownership. After all these obligations and duties of the

trustees were taken over and still, price was offered to the

trustees, which bearing in mind the dilapidated condition of the

building and the other factors was the best in the opinion of the

Charity Commissioner. He has, therefore, not placed his approval

blindly, on the transaction finalised by the trustees. In fact, the

order is reasoned and not cryptic. The order takes into

consideration all the necessary applicable legal principles. The

order records that the trustees of the purchaser Trust have

decided to redevelop this property of the Trust as well as adjacent

properties of other Trusts in the area. There are in all four such

properties of different Trusts, which are adjacent and need

redevelopment. The names of these Trusts are also stated in para

3 of the order. The Trust did not prefer to invite offers by

publication because the purchaser Trust gave a good offer and

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undertook redevelopment of all the properties of the Trusts

named in the order. It is in these circumstances, the unanimous

acceptance of the offer of purchaser Trust by the trustees, which

is more than the market rate of the property, influenced the

decision of the Charity Commissioner. He has also found that the

Trust property is in a dilapidated condition needing

redevelopment, but the trustees had no funds to redevelop it. The

decision of the trustees to sell the property for redevelopment

was, therefore, justified and the Charity Commissioner found that

bearing in mind the transaction and taken in its entirety, the

interest of the Trust is also safeguarded. It is in these

circumstances, he granted sanction to the transaction before

before him.

92. We are of the opinion that this order of the Charity

Commissioner is based on the satisfaction contemplated in law. It

is a satisfaction reached in terms of the law. The view taken by

the Charity Commissioner is neither perverse nor vitiated by any

error of law apparent on the face of the record. The Charity

Commissioner was aware of the condition of the property, the

relevant factors, including how the encroachments have totally

infested and affected the building in question. He was, therefore,

not prevented from granting his approval or sanction to the

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transaction and allowing the application filed by the trustees.

This order, therefore, does not warrant any interference under

Articles 226 and 227 of the Constitution of India.

93. As a result of the above discussion, the writ petition stands

dismissed. Rule is discharged. There will be no order as to costs.

94. In view of the dismissal of the writ petition, Interim

Application No.1 of 2019 does not survive and stands disposed of

accordingly.

95. At this stage, Mr.Gorwadkar prays for continuation of the

interim order passed by this Court on 11 th October, 2019.

Mr.Kamdar, learned counsel appearing for respondent No.8 and

the learned advocate appearing for respondent No.3-Trust

opposes the same.

96. We have considered this aspect of the matter as well. After

hearing both sides on this point, we are of the opinion that the

petitioners before us are a proposed Forum of Shop Tenants on

the ground floor of the building. Considering the fact that the

building is dilapidated and that the petitioners are not going to be

deprived of the benefits of the redevelopment scheme and rather,

they are beneficiaries thereof, after proving their eligibility, they

would be provided with permanent alternate accommodation on

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ownership basis, we are not inclined to continue this interim

order. The request in that behalf is rejected.

(R.I.CHAGLA, J.) (S.C.DHARMADHIKARI, J.)

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