The State Of Maharashtra Through Principal Secretary Revenue And Forest Dept. Mumbai v. Shaikh Karimoddin Shaikh Rahimoddin And Others

1 CRA63-08 AND ORS.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.63 OF 2008 WITH CIVIL REVISION APPLICATION NO.64 OF 2008 WITH CIVIL REVISION APPLICATION NO.65 OF 2008 WITH CIVIL REVISION APPLICATION NO.66 OF 2008 Shaikh Karimoddin s/o. Shaikh Rahimoddin, Age 62 years, occ. Business, r/o. Dargah Road, Parbhani, Dist.Parbhani ..Applicant

Versus

1] M/s. Kothari Builders through Partner Lalchand s/o. Thakurdas Khairajani, Age 65 years, occ.Business, r/o. Shastri Nagar, Parbhani, Dist.Parbhani 2] Mangeshrao s/o. Ramrao Subhedar, Age 45 years, occ. Agri., r/o. Kranti Chowk, Parbhani, Dist. Parbhani 3] Abdul Rehman Khan Jeelani s/o. Gulam Khan, age 55 years, occu. Business, r/o. Bashir Gunj Mohalla, Juna Mondha, Survey No.2, Parbhani 4] Maharashtra State Board of Wakfs, Through its Chief Executive Officer, Panchakki, Aurangabad

2 CRA63-08 AND ORS.odt 5] State of Maharashtra, through its Secretary, Revenue and Forest Department, Mantralaya, Mumbai -- Mr.S.S.Kazi, advocate for applicants Mr.P.V.Mandlik, Senior counsel along with Mr. Pratap Mandlik i/b. Mr.Amol Gandhi, advocate for respondent no.1 Mr.G.R.Syed, advocate for respondent no.4 Mr.S.R.Palnitkar, AGP for respondent no.5 -- WITH CIVIL APPLICATION NO.3514 OF 2015 IN CIVIL REVISION APPLICATION NO.63 OF 2008 WITH CIVIL APPLICATION NO.3513 OF 2015 IN CIVIL REVISION APPLICATION NO.64 OF 2008 WITH CIVIL APPLICATION NO.3515 OF 2015 IN CIVIL REVISION APPLICATION NO.65 OF 2008 WITH CIVIL APPLICATION NO.3517 OF 2015 IN CIVIL REVISION APPLICATION NO.66 OF 2008

3 CRA63-08 AND ORS.odt The State of Maharashtra ..Applicant versus Shaikh Karimoddin Shaikh Rahimoddin and ors.

..Respondents -- Mr.S.R.Palnitkar, AGP for applicant - State Mr.S.S.Kazi, advocate for respondent no.1 Mr.P.V.Mandlik, Senior counsel along with Mr. Pratap Mandlik i/b. Mr.Amol Gandhi, advocate for respondent no.2 Mr.G.R.Syed, advocate for respondent no.5 -- CORAM : M.T. JOSHI, J.

DATE : JUNE 16, 2015 ORAL JUDGMENT :

Heard both sides.

2] Perused the impugned order passed by learned Member, Waqf Tribunal, Aurangabad.

3] In the affidavit filed by respondent - State, it is made clear that in the Maharashtra Wakf Rules, 2003, certain mistakes have occurred and

4 CRA63-08 AND ORS.odt therefore, certain amendments are required, more particularly, in Rule 40, with which we are concerned in the present proceedings.

4] Rule 40 provides as under :- "40.Court fee :- (1) Every application, plaint or memorandum of appeal or an application for execution or other application shall be accompanied by court fee or rupees ...............

(2) No Notice, summons or other process of the tribunal shall be issued and no such application for certified copies of orders, documents or other records shall be granted unless proper fee as specified by the Government by notification is remitted."

5] Since the Government is competent under Section 109(1) of the Wakf Act, 1995, to frame

5 CRA63-08 AND ORS.odt rules and make provision vide Rule 40 that some court fees is to be paid, but kept the said column blank and now, the amendment is being carried out, the provisions of Bombay Court Fees Act, cannot be made applicable in the present proceedings. Even if, certain amendment is made by the State as communicated by the State in the affidavit, the said rules naturally would be prospective and it would not be retrospective. In that view of the matter, the order passed by learned Member of Wakf Tribunal dismissing the suit as per the provisions of the Bombay Court Fees Act, cannot sustain. 6] In the result, Civil Revision Applications are allowed and disposed of without any order as to costs.

.

The impugned orders passed by learned Member, Wakf Tribunal are hereby set aside in each of the Revision Application. The suits are restored to

6 CRA63-08 AND ORS.odt file. The Wakf Tribunal is hereby directed to proceed with the suit as per the law.

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In view of disposal of Civil Revision Applications, Civil Applications do not survive and stand disposed of.

[M.T. JOSHI, J.] kbp