whether such interim order of stay should be allowed to continue, but in a modified manner on account of the fact that by staying the operation of the final judgment, the interim orders passed by the High Court were revived, thereby rendering the stay order meaningless.=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 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 or the Trustees = 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

' REPORTABLE



IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) Nos.31288-31290 of 2011



Maharashtra State Board of Wakfs ... Petitioner

Vs.

Shaikh Yusuf Bhai Chawla & Ors. ... Respondents


WITH


SLP(C) Nos.32129-32131 of 2011, SLP(C) No.32636 of 2011,
SLP(C) No.35196 of 2011 AND SLP(C) No.35198 of 2011


O R D E R


ALTAMAS KABIR, J.



1. These several Special Leave Petitions have been

filed by the State of Maharashtra and other parties. While

Special Leave Petition (C) Nos.31288-31290, Special Leave

Petition (C) Nos.32129-32131 and Special Leave Petition (C)

No.32636, all of 2011, have been fled by the Maharashtra

State Board of Wakfs, Special Leave Petition (C) Nos.35196
 2




and 35198 of 2011 have been filed by the Jamait Educational

and Welfare Muslim Minority Education Society and

Maharashtra Muslim Lawyers' Forum.



2. The Special Leave Petitions are directed against the

judgment and final order dated 21st September, 2011, passed

by the Bombay High Court in Writ Petition No.2906 of 2004,

Writ Petition No.357 of 2011 and Writ Petition (L) No.899

of 2011. The impugned judgment of the High Court in the

aforesaid Writ Petitions is the outcome of the challenge to

the formation of the Maharashtra State Board of Wakfs. As

noticed by the High Court, the subject matter of all the

Writ Petitions, and thereby of the Special Leave Petitions,

relates to the challenge to the incorporation of the

Maharashtra State Board of Wakfs and its impact upon the

Wakfs created by persons professing Islam, but belonging to

different sects.



3. The Petitioners in Writ Petition No.2906 of 2004 are

Muslims belonging to the Shia Fatemi Ismaili Tyebia Sect of

Islam and are Shia Muslims. The Petitioner Nos.1 to 3 in

the said Writ Petition are trustees of "Sir Adamji Peerbhoy

Sanatorium" established by a Scheme settled by the Bombay
 3




High Court by an order dated 16th June, 1931 in Suit No.1560

of 1927. The said Trust is registered as a Public Trust

under the Bombay Public Trusts Act. The Petitioner Nos.4

and 5 are trustees of the "Anjuman-i-Null-Bazaar Chhabdi

Bazar Niaz Hussein Charitable Trust", which is also

registered as a Public Trust under the Bombay Trusts Act.

The Petitioners in Writ Petition No.899 of 2011 are Dawoodi

Bohra Muslims and claim to be Trustees of Noorbhoy Jeewanji

Morishwalla Charity Trusts registered under the Bombay

Public Trusts Act. The Petitioners in Writ Petition (L)

No.357 of 2011 are Muslims belonging to the Shia Fatemi

Ismaili Tyebia sect and are also trustees of Sir Adamji

Peerbhoy Sanatorium, referred to hereinabove. The

Petitioner in SLP (C) No.35196 of 2011 is a society

registered under the Societies Registration Act, 1860. All

the members of the Trust profess Islam and are persons

interested in the affairs of the Wakf set in question by

virtue of the provisions of Section 3(k) of the Wakf Act,

1995. Similarly, the Petitioners in SLP(C) No.35198 of

2011 are a group of Muslim lawyers who have formed a Forum

and are also persons interested in the management of Wakf

properties in terms of Section 3(k) of the Wakf Act, 1995.
 4




4. The grievance of the Writ Petitioners in these five

Writ Petitions is the same. The Petitioners in Writ

Petition No.2906 of 2004 have challenged the notification

dated 4th January, 2002, issued by the Government of

Maharashtra and have also sought for a direction to the

State Government to conduct a fresh survey of Wakfs in the

State of Maharashtra. Their further challenge is to

notification dated 13th November, 2003, issued by the

Maharashtra State Board of Wakfs publishing the list of

Wakfs in the State of Maharashtra.



5. In Writ Petition No.899 of 2001, the Petitioners

have challenged the Circular dated 24th July, 2002, issued

by the Charity Commissioner of the State of Maharashtra

stating therein that in view of the provisions of Section

43 of the Wakf Act, 1995, the Wakfs which were registered

as Public Trusts would cease to be governed by the

provisions of the Public Trust Act. It is the case of the

Writ Petitioners that because the establishment of the

Maharashtra State Board of Wakfs by the notification dated

4th January, 2002, was itself invalid, they continued to be

governed by the provisions of the Bombay Public Trusts Act.
 5




6. The Petitioners in Writ Petition No.357 of 2011,

have challenged the notification issued by the State of

Maharashtra on 20th October, 2010, for re-survey of the

Wakfs in the State of Maharashtra. They also sought a

direction that the Charity Commissioner should continue to

supervise the working of the Trusts of which they are

trustees.



7. After the Wakf Act, 1995, which came into force on

1st January, 1996, was enacted, the State Government issued

a notification on 1st December, 1997, in exercise of its

powers under Sub-Section (1) of Section 4 of the Wakf Act,

1995, whereby the State Government appointed :-



(a) Settlement Commissioner and Director of Land

Records, Maharashtra State, Pune, to be Survey

Commissioner of Wakfs; and



(b) Additional Commissioners of Konkan, Nashik, Pune,

Nagpur, Amravati and Aurangabad Revenue Divisions to

be Additional Survey Commissioners, for the purpose

of making a survey of Wakfs existing on the 1 st day

of January, 1996 in the State of Maharashtra.
 6




8. On 4th January, 2002, the Government of Maharashtra,

by a notification of even date, in exercise of powers

conferred by Section 14 of the Wakf Act, 1995, established

a Board by the name of "The Maharashtra State Board of

Wakfs" with its headquarters at Aurangabad. The Government

nominated four persons to be members of the State Board,

namely :-



(a) Shri Khan Yusuf Sarwar, Member of Parliament (Rajya

Sabha);



(b) Smt. Shabana Azmi, Member of Parliament (Rajya

Sabha);



(c) Shri Harun Aadam Solkar, Muslim Ex-member of the Bar

Council of the State; and



(d) Shri Chand Pasha Inamdar, Member of Muslim

Organisation;



Thus, by the aforesaid Notification, a Wakf Board was

established for the entire State of Maharashtra with its
 7




headquarters at Aurangabad and four persons were named in

the Notification as members of the said Board.



9. Pursuant to the notification dated 1st December,

1997, the officers appointed to conduct the survey,

submitted a report to the State Government on 31 st January,

2002. Thereafter, other members were appointed to the Wakf

Board by different notifications. On 24th July, 2003, the

Charity Commissioner of the State of Maharashtra issued a

circular directing his office not to exercise powers under

the Bombay Public Trusts Act or to deal with any of the

Muslim Public Trusts. The said circular mentioned that

according to Section 43 of the Wakf Act, 1995, a Wakf

registered as a Public Trust should not be administered or

governed under the Bombay Public Trusts Act. Several Writ

Petitions were filed challenging the establishment of the

Board and also challenging its constitution and appointment

of various persons as its members. Objections were also

filed in Court challenging the circular issued by the

Charity Commissioner. On 13th November, 2003, the Wakf Board

published a list of Wakfs treating Muslim Public Trusts in

Maharashtra and Suburban districts of Maharashtra as Wakfs.
 8




10. Several Writ Petitions were filed challenging the

list of Wakfs prepared by the Wakf Board which came to be

heard by the Bombay High Court, which set aside the

notification dated 4th January, 2002, as also the list of

Wakfs prepared and published by the Maharashtra State Wakf

Board on 13th November, 2003. The Survey Officers appointed

by notification dated 20th October, 2010, were directed to

take into consideration representations, if any, made by

the Petitioners and other similarly situated persons

connected with the Muslim Wakfs, including the list

prepared by the Committee constituted by the State

Government under the chairmanship of the Charity

Commissioner. The Survey Officers were also given the

option to take into consideration any list of Wakfs, if

prepared under the Act of 1954. The crucial direction which

appears to have adversely affected the special leave

petitioners is the direction that until a new Board or

Boards was incorporated under the Wakf Act, 1995, and the

Board started functioning in accordance with the provisions

of the Wakf Act, the provisions of the Bombay Public Trusts

Act would apply to such Muslim Public Trusts as are

registered under the Bombay Public Trusts Act. The High

Court made it clear that although the notification dated 4th
 9




January, 2002, had been set aside, none of the actions

taken or orders passed by the Wakf Board constituted by the

notification dated 4th January, 2002, had been challenged or

set aside by virtue of the said order. By the impugned

order, the State of Maharashtra was given the liberty to

take steps to make such interim arrangements, as may be

advised, to monitor and supervise the Wakf properties and

other related aspects under the Wakf Act. It was also

stipulated that the decision and/or action already taken,

including the pending disputes and litigations would be

governed by the Wakf Act, 1995.



11. As far as Writ Petition (L) No.357 of 2011 is

concerned, the Division Bench clarified that by the

judgment in question it had not considered the reliefs

claimed with regard to the list of Wakfs dated 13th

December, 2004. Accordingly, the Petitioners were given the

liberty either to file a fresh petition claiming such

relief, or to claim the said relief in other pending

matters.



12. It is these directions issued by the Division Bench

of the Bombay High Court which have led to the filing of
 10




the present Special Leave Petitions.



13. One of the facets of the dispute, which was thrown

up during the hearing regarding continuance of the interim

order in a modified form is the creation of Wakfs under the

Muslim law and the creation of Trusts by persons professing

the Muslim faith, which were not in the nature of Wakfs,

but in the nature of English Trusts.



14. Prior to the enactment of the Wakf Act, 1995, the

Central Wakf Act, 1954, was in force, but did not apply to

some of the States which had Special Acts of their own,

such as Uttar Pradesh, West Bengal, parts of Gujarat and

Maharashtra and some of the North-Eastern States. The said

States continued to be governed by their own Special

statutes, which provided for the administration of Wakfs in

their respective States. To do away with the disparity of

the law relating to Wakfs in different States, the Central

Government enacted a uniform law to govern all Wakfs in the

country, which led to the enactment of the Wakf Act, 1995,

whereby all other laws in force in any stage corresponding

to the said Act, stood repealed.
 11




15. The judgment and order of the High Court having been

challenged in these various Special Leave Petitions, on 29th

November, 2011, when the matters were taken up, we had

directed notices to issue in the different Special Leave

Petitions and in the meantime directed that the stay

granted by the High Court on 21st September, 2011, in

respect of its judgment, would remain operative.



16. Thereafter, these matters have been taken up to

consider whether such interim order of stay should be

allowed to continue, but in a modified manner on account

of the fact that by staying the operation of the final

judgment, the interim orders passed by the High Court were

revived, thereby rendering the stay order meaningless.



17. While considering the three sets of Special Leave

Petitions, Special Leave Petition (Civil) Nos.32129-32131

of 2011, filed by the State of Maharashtra, were taken up

for consideration first.



18. Appearing for the Petitioner State of Maharashtra,

Mr. Rohington Nariman, learned Solicitor General for India,

submitted that the only thing which was required to be
 12




considered for a decision as to whether the interim order

shall continue, was whether a prima facie case had been

made out for grant of interim injunction to preserve the

status quo ante which prevailed before the coming into

operation of the Wakf Act, 1995. Mr. Nariman urged that

the provisions of the Wakf Act, 1954, and the Bombay Public

Trusts Act, in relation to Wakf properties, stood repealed

by virtue of Section 112 of the 1995 Act. Mr. Nariman

submitted that Section 112 of the 1995 Act, which dealt

with repeal and savings, clearly indicated that if

immediately before the commencement of the Act in any

State, there was in force in that State any law which

corresponded with the 1995 Act, that corresponding law

would stand repealed. The learned A.S.G. submitted that in

the instant case, the corresponding law to the Wakf Act,

1995, when it came into force, was the Maharashtra Wakf Act

and the provisions of the Bombay Public Trusts Act which

became ineffective on account of the provisions of Section

112(3) of the 1995 Act. With the repeal of the said two

provisions, it was for the Board of Wakfs established under

the 1995 Act to continue in management of the Wakf

properties and the judgment of the High Court setting aside

the establishment of Board could not resurrect the
 13




authority of the Charity Commissioner over such properties.

In fact, after the promulgation of the Wakf Act, 1995, the

Charity Commissioner ceased to have any control over Muslim

Wakfs, even if they had been registered with the Charity

Commissioner as Public Trusts. Mr. Nariman submitted that

at this interim stage only a prima facie view has to be

taken as to whether the interim order passed by this Court

was to be continued, pending the hearing of the Special

Leave Petitions.



19. On the other hand, Dr. Rajiv Dhawan, Senior

Advocate, and other learned counsel who appeared for some

of the Respondents, urged that the learned Solicitor

General had not made any submission with regard to the

balance of convenience and inconvenience and only confined

himself to the question of whether a prima facie case has

been made out for continuance of such interim injunction.

Learned counsel submitted that the matter had already been

dealt with earlier and the order which was passed on 30 th

November, 2011, continuing the stay granted by the Bombay

High Court on 21st September, 2011, was based on consent.

Furthermore, only three of the parties had appeared before

this Court. It was further submitted that although there
 14




were several sales transactions involved which were to be

considered by the Charity Commissioner, only three of the

parties were before the Court and the parties which were

also likely to be affected by any order passed in these

matters should also be given an opportunity of hearing,

particularly because the prayer which had been asked for by

way of interim relief was in fact the main relief itself.

It was urged that till 4th January, 2002, when the Board

came into existence under the 1995 Act, there was no Wakf

Board and even the Board created at a later stage was

wholly illegal.



20. The main thrust of the submissions made on behalf of

the respondents was that the circular issued by the Charity

Commissioner relinquishing its authority over the Trusts

created by Muslims, did not attract the provisions of the

Wakf Act, 1995, which dealt with Wakf properties only and

was not, therefore, entrusted with the jurisdiction over

such Wakfs. It was also submitted that the Bifurcation

Committee which had been created for the purpose of

separating Wakfs from Trusts and Shia and Sunni Wakfs, was

an extra-legal Committee which was not contemplated under

the provisions of the Wakf Act. According to Dr. Dhawan,
 15




the classification of Wakfs as "Shia" or "Sunni" or any

dispute regarding whether a Wakf is existing or not, could

only be decided by the Wakf Tribunal under Sections 6 and 7

or by the Wakf Board under Section 40 of the Wakf Act,

1995.



21. On 4th September, 2008, the State of Maharashtra

issued a notice appointing 7 members to the Board, but the

said notification was struck down by the Bombay High Court

and the strength of the Board of Wakfs was reduced to four

members. This was followed by a notification issued by the

Wakf Board on 23rd February, 2008, cancelling its

corrigendum notification dated 5th May, 2005, seeking to

amend the list of Wakfs dated 13th November, 2003, thereby

retaining its control over the said Wakf estates indicated

in the first list published earlier. Dr. Dhawan urged that

once the order passed was agreed to by the parties, there

could be no further question of passing any interim order

to stay the effect of the order of the High Court passed on

21st September, 2011.



22. Dr. Dhawan urged that since the survey of the Wakfs

and the various denominations in respect thereof, was yet
 16




to be completed, and even the Board of Wakfs had not been

properly constituted in accordance with Sections 13 and 14

of the 1995 Act, the provisions of Section 22 of the Act,

which provides that no act or proceeding of the Board shall

be invalid by reason only of the existence of any vacancy

amongst its members or any defect in the constitution

thereof, would not be attracted. Learned counsel submitted

that Section 22 of the Act would come into operation only

after the Board had been duly constituted but not when the

Board was yet to be constituted. It was submitted that

since the Wakf Board had not been constituted fully, the

list of Wakfs published by it cannot be accepted or relied

upon. It was submitted that the interim order passed by

the High Court did not require any interference in these

proceedings even at the interim stage.



23. Mr. Salve, learned senior counsel appearing for the

Respondents Nos. 1,2 and 3 in SLP (C) No. 31288 of 2011,

submitted that during the pendency of the Special Leave

Petition in this Court, Wakf properties should not be

permitted to be alienated by either the Board of Wakfs or

the Charity Commissioner, though, as far as Public Trusts

are concerned, they should not be treated as Wakfs, since
 17




the genesis of their existence was not under the law

relating to Wakfs, but as English Trusts which are governed

by the Indian Trusts Act.



24. Referring to paragraph 13 of the Special Leave

Petition in SLP(C)Nos.31288-31290 of 2011, Mr. Salve

submitted that the power to establish a Board of Wakfs was

vested in the State Government under Section 13 of the Wakf

Act, 1995 and Sub-Section (2) thereof lays down the manner

in which the power is to be exercised by the State

Government. Mr. Salve pointed out that this provision

provided for the appointment of two Boards, one, a Sunni

Board and the other, a Shia Board, depending on the number

of Wakfs belonging to the two denominations. Accordingly,

one would have to wait till a survey, as contemplated under

Section 4 of the Wakf Act, 1995, was completed. Mr. Salve

submitted that it would, therefore, be best to preserve the

status quo until a final decision was taken in the Special

Leave proceedings.



25. Mr. Y.H. Muchhala, learned Senior Advocate, who

appeared for Anjuman-i-Islam, adopted the submissions made

by Mr. P.P. Rao, Dr. Dhawan and Mr. Salve, but submitted
 18




that in the absence of a validly constituted Board of

Wakfs, the Wakf Act, 1995, could not be said to have come

into force in Maharashtra which continued to be governed by

the State Government. Mr. Muchhala urged that for the

purpose of management of the Wakfs within the State of

Maharashtra, the system of management prevailing prior to

the enactment of the 1995 Act would continue to remain in

operation.



26. Having considered the submissions made on behalf of

the respective parties, we are restricting ourselves at

this interim stage to the broad outlines of the case made

out by the respective parties and whether, in the

background of the facts disclosed, the stay granted by the

Bombay High Court on 21st September, 2011 should continue in

a modified form.



27. Broadly speaking, the grievance of the Petitioners

in these Special Leave Petitions is with regard to the

vesting of powers of management and supervision of Muslim

Wakf estates in Maharashtra in the Charity Commissioner by

virtue of the impugned order of the High Court.

Undoubtedly, the Wakf Board was constituted under the
 19




provisions of the Wakf Act, 1995, but not at full strength

as envisaged in Sections 13 and 14 of the aforesaid Act.

Whatever may be the reason, the factual position is that

today there is no properly constituted Board of Wakfs

functioning in the State of Maharashtra. At the same time,

the administration of Wakfs in Maharashtra cannot be kept

in vacuum. The Bombay High Court did what it thought best

to ensure that there was no vacuum in the administration of

Wakf properties in Maharashtra by directing that till such

time the Board was properly constituted, the Charity

Commissioner would continue to administer the Muslim Wakf

properties, including English Trust properties, which had

already been registered as Trust properties with the

Charity Commissioner under the Bombay Public Trusts Act. As

a corollary, the list of Wakfs published by the truncated

Board of Wakfs was also set aside by the Bombay High Court.

The question is whether the Bombay High Court had the

jurisdiction to make such orders in the writ jurisdiction

and particularly to vest the management of all Wakf

properties in the Charity Commissioner in view of the

provisions of Section 112 and in particular Sub-Section (3)

thereof of the Wakf Act, 1995.
 20




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 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
 21




properties in the Trust, unless he relinquishes such title

in favour of the Trust or 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
 22




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.




...............................................................J.
(ALTAMAS KABIR)




...............................................................J.
(J. CHELAMESWAR)




...............................................................J.
(RANJAN GOGOI)
New Delhi
Dated : 11.05.2012
 23




ITEM NO.37 COURT NO.2 SECTION IX
[FOR ORDERS]

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s)for Special Leave to Appeal(Civil)No(s). 31288-
31290/2011

(From the judgement and order dated 21/09/2011 in WP No.
2906/2004,WP No.357/2011,WP No.899/2011 of The HIGH COURT
OF BOMBAY)


MAHARASHTRA STATE BOARD OF WAKFS Petitioner(s)

VERSUS

SHAIKH YUSUF BHAI CHAWLA & ORS. Respondent(s)

(With appln(s) for intervention,modification of Court's
Order,permission to file additional documents and with
prayer for interim relief and office report ))
WITH SLP(C) NO. 32129-32131 of 2011
(With appln.(s) for modification of Court's order and
with prayer for interim relief and office report)
( for final disposal )
SLP(C) NO. 32636 of 2011
(With appln.(s) for impleadment/intervention and
impleadment and with prayer for interim relief and
office report)
( for final disposal )
SLP(C) NO. 35196 of 2011
(With appln.(s) for exemption from filing c/c of the
impugned judgment and office report)
SLP(C) NO. 35198 of 2011
(With appln.(s) for exemption from filing c/c of the
impugned judgment and with prayer for interim relief and
office report)


Date: 11/05/2012 These Petitions were called on for ORDERS
today.
 24




For Petitioner(s)
Mr. Sudhanshu S.Choudhari,AOR.

Mr. Shakil Ahmed Syed, AOR.
Mr. Shuaib-Uddin, Adv.
Mohd.Parvez dabas, Adv.

Ms. Asha Gopalan Nair, AOR.

Mr. Mohd.Irshad Hanif, AOR.

For Respondent(s)
Mr. Ejaz Maqbool,AOR

Mr. Vimal Chandra S. Dave ,AOR

Mr. Praveen Kumar ,AOR

Mr.Vinay Navare, Adv.
Mr. Keshav Ranjan, Adv.
Mr. Satyajeet Kumar, Adv.
Ms. Abha R. Sharma ,AOR

Mr. T. Mahipal ,AOR

Mr. Ejaz Maqbool, AOR.




Hon'ble Mr. Justice
Altamas Kabir pronounced the orders of
the Bench comprising His Lordship,
Hon'ble Mr. Justice J. Chelameswar and
Hon'ble Mr. Justice Ranjan Gogoi.



In terms of the signed order, 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
 25




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.
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.




(Sheetal Dhingra) (Juginder Kaur)
COURT MASTER Assistant Registrar
[Signed reportable order is placed on the file]

Pending main suit, no court should express final opinions on a case of the party at the stage of interim applications = Mr. Ravi Shankar Prasad, learned senior counsel for the appellant is fully justified in contending that the Division Bench while deciding the Notice of Motion has exceeded its power and jurisdiction in commenting the conduct of the appellant herein (respondent No.2 therein) stating that she approached the Court on the basis of false and fabricated documents. When the main suits are pending, particularly, the appellant before us is a stranger in the pending suits, we are of the view that such observation that respondent No.2 therein (appellant herein) had approached the Court on the basis of false and fabricated documents is not warranted and those observations have to be eschewed and we rightly do so. We intend to dispose of these appeals by issuing the following directions: (i) The Court concerned, viz., City Civil Court (we were not informed about the exact Court before which the suits have been transferred from the original side of the High Court) is directed to dispose of the suits within a period of one year from the date of the receipt of copy of this judgment. (ii) The deposited amount of Rs.98 lakhs invested in a Nationalized Bank be renewed periodically and disbursed subject to the orders of the court concerned. (iii) All the observations/directions, particularly, the expression of the Division Bench about the alleged conduct of respondent No.2 therein (appellant herein) that she had approached the Court on the basis of false and fabricated documents, is deleted and the trial Court is directed to decide the issue on merits on the basis of the materials to be placed before it. (iv) The Court concerned is directed to adhere to the time schedule and dispose of all the suits, after affording opportunity to all the parties including the appellant herein, uninfluenced by any of the reasoning of the High Court and this Court. (v) The limited protection granted by this Court on 20.04.2012 directing all the parties to maintain status quo prevailing as on that date shall be continued till final decision being taken in the suits as directed above. 9) All the appeals are disposed of on the above terms. There shall be no order as to costs.

' 
REPORTABLE


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

1


2 CIVIL APPEAL NOs. 8202-8205 OF 2012


3 (Arising out of SLP (C) Nos. 6388-6391 of 2012)






Vasanti Bhat .... Appellant(s)

Versus

Premlata A Agarwal & Anr. Etc. .... Respondent(s)






J U D G M E N T


P. Sathasivam, J.
1) Leave granted.
2) These appeals are directed against the final judgments and orders
dated 29.09.2011 passed by the High Court of Judicature at Bombay in Appeal
No. 202 of 2010 in Notice of Motion No. 3112 of 2009 in Suit No. 252 of
2009, Appeal No. 204 of 2010 in Notice of Motion No. 3114 of 2009 in Suit
No. 253 of 2009, Appeal No. 205 of 2010 in Notice of Motion No. 3115 of
2009 in Suit No. 254 of 2009 and Appeal No. 203 of 2010 in Notice of Motion
No. 3113 of 2009 in Suit No. 251 of 2009 whereby the High Court allowed the
appeals filed by respondent No.1 and set aside the order dated 18.03.2010
passed in Notices of Motions.
3) Brief facts:
(a) An Agreement for Sale dated 06.10.2006 was entered into between
Vasanti Bhat-appellant herein and M/s Zenal Construction Private Limited-
respondent No.2 herein (the Developers) wherein the appellant agreed to
purchase Flat No. 703 on the 7th Floor in 'A' Wing of the Reserve Bank of
India Employees Kamdhenu Co-operative Housing Society Limited (in short
'the Society') for a total consideration of Rs. 39 lacs as the Developers
was having absolute right to develop and sell the flats on the said
property pursuant to an agreement between the Developers and the Society.
Out of the total sale consideration, a sum of Rs. 38 lacs has already been
paid through account payee cheques on different dates. Pursuant to the
above Agreement for Sale, respondent No.2 issued a possession letter to the
appellant on 30.09.2008.
(b) In the meantime, on 27.01.2009, Respondent No.1-Premlata A Agarwal
and her son Ravi A. Agarwal filed four suits being Suit Nos. 251, 252, 253
and 254 of 2009 in the Bombay High Court against respondent No.2 for
specific performance of Agreement for Sale with regard to four flats,
namely, 801 and 802 in 'A' Wing and 801 and 802 in 'B' Wing in the said
Society. In none of the suits, Flat No. 703 in 'A' Wing was shown as the
suit property. When the matter came up for hearing, respondent No.2-herein
(Defendant) informed the Court that they have sold out all the said flats.
But on being asked, they informed the Court that two flats in 'A' Wing -
one on the 8th Floor and the other on the 7th Floor are yet not agreed to
be sold to third parties under registered deed.
(c) Learned single Judge of the High Court, vide ad-interim order dated
10.02.2009, appointed a Court Receiver in respect of Flat Nos. 703 and 801
in 'A' Wing and directed respondent No.2 not to execute or register
agreement, alienate or create any third party rights in respect of the
aforesaid two flats.

(d) Learned single Judge of the High Court, vide order dated 20.03.2009,
after coming to know from the counsel for respondent No.1 that respondent
No.2 allowed the purchasers, namely, Vasanti Bhat and Bhavik K. Shah to do
furnishing in the suit flats and the construction work is yet to be
completed, directed the Court Receiver to seal the suit flats and
communicate the same to Vasanti Bhat and Bhavik K. Shah.
(e) Being aggrieved, on 07.08.2009, Vasanti Bhat filed Notice of Motion
No. 3112 of 2009 in Suit No. 252 of 2009 before the High Court, inter alia,
praying for setting aside the orders dated 10.02.2009 and 20.03.2009.
(f) Learned single Judge of the High Court, vide order dated 18.03.2010
set aside the two orders dated 10.02.2009 and 20.03.2009 and directed the
Court Receiver to return the possession of Flat No. 703 in 'A' Wing to the
applicant-therein i.e. Vasanti Bhat. Similar such orders were passed on
the other Notice of Motions.



(g) Being aggrieved by and dissatisfied with the order dated 18.03.2010
passed by the single Judge of the High Court, respondent No.1 filed four
appeals before the Division Bench of the Bombay High Court.
(h) The Division Bench of the High Court, vide order dated 22.04.2010,
while admitting the appeals directed respondent No.2 to deposit Rs. 98 lacs
which is paid by respondent No.1 and the appellant and stayed the impugned
orders in the said appeals until further orders.
(i) Aggrieved by the order dated 22.04.2010, the appellant and respondent
No.2 preferred separate special leave petitions before this Court. This
Court, by order dated 23.07.2010 disposed of the aforesaid petitions and
asked the parties to raise all objections before the High Court with a
request to consider and dispose of the same at an early date. During the
pendency of the appeals before the High Court, respondent No.2 deposited
the entire sum of Rs. 98 lacs which had been paid by the appellant and
respondent No.1 as directed by the High Court.
(j) The High Court, by impugned orders dated 29.09.2011, allowed the
appeals filed by the respondents and set aside the order dated 18.03.2010
passed in Notice of Motions in the respective suits. The High Court further
directed that the amount which was deposited by respondent No.2 shall be
transferred to the credit of Suit No. 251 of 2009 and the amount should be
kept invested in a FD in a Nationalized Bank.
(k) Against the order passed by the Division Bench of the High Court, the
appellant has filed this appeal by way of special leave before this Court.

4) Heard Mr. Ravi Shankar Prasad, learned senior counsel for the
appellant, Mr. Praveen Samdhani, learned senior counsel for respondent No.1
and Mr. S.K. Katriar, learned senior counsel for respondent No.2.

5) All the three senior counsel appearing for the contesting parties
took us through the Agreement for Sale, averments in the plaint, reliefs
sought for in Notice of Motions and the order of the learned single Judge
as well as the Division Bench of the High Court. Mr. Ravi Shankar Prasad,
learned senior counsel by drawing our attention to the Agreement for Sale
relating to Flat No. 703 in 'A' wing supported the conclusion arrived at by
the learned single Judge and argued that the Division Bench committed an
error in allowing the appeal of the plaintiff by rejecting the Notice of
Motion filed by the appellant herein. On the other hand, Mr. Praveen
Samdhani, learned senior counsel for respondent No.1, by drawing our
attention to the fact that the appellant herein is a stranger in the suits,
submitted that the conclusion arrived at by the Division Bench cannot be
faulted with and according to him the only remedy open to the appellant is
to file a separate suit to secure relief in her favour. Mr. S.K. Katriar,
learned senior counsel for respondent No.2 - the Developers submitted that
there cannot be any injunction against third party and the appellant herein
being not a party to the suits, no injunction can be granted against her.
He further submitted that by depositing a sum of Rs.98 lakhs, the interest
of respondent No.1 is fully protected, hence, the impugned order of the
Division Bench is not warranted and the same is liable to be interfered
with.

6) All the learned senior counsel fairly admitted that as per Section
20(1) of the Specific Relief Act, 1963 it is only discretionary relief
depending upon various factual aspects to be established by the party(s)
approaching the Court. All the counsel have also relied on Section 14 of
the Specific Relief Act, 1963 as well as various provisions of Maharashtra
Ownership of Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963. It is also not in dispute that the
main suits are still pending and it was also brought to our notice that
because of the enhancement of jurisdiction, in October, 2012, the suits
filed by the plaintiff in the original side of the High Court, with which
we are concerned, are being transferred to the City Civil Court, Bombay.
Taking note of the fact that the main suits are pending and any decision in
respect of the issues raised by all the parties would undoubtedly affect
the ultimate stand of the parties and will have bearing on the suits, we
have decided not to analyse and arrive at a definite conclusion one way or
the other. At the same time, Mr. Ravi Shankar Prasad, learned senior
counsel for the appellant is fully justified in contending that the
Division Bench while deciding the Notice of Motion has exceeded its power
and jurisdiction in commenting the conduct of the appellant herein
(respondent No.2 therein) stating that she approached the Court on the
basis of false and fabricated documents. When the main suits are pending,
particularly, the appellant before us is a stranger in the pending suits,
we are of the view that such observation that respondent No.2 therein
(appellant herein) had approached the Court on the basis of false and
fabricated documents is not warranted and those observations have to be
eschewed and we rightly do so.

7) As stated earlier, we also noted the fact that pursuant to the orders
of the Court, the Developers (respondent No.2 herein) has deposited a sum
of Rs. 98 lakhs which safeguards the interest of respondent No.1 herein
(plaintiff in the suits).

8) We intend to dispose of these appeals by issuing the following
directions:
(i) The Court concerned, viz., City Civil Court (we were not informed
about the exact Court before which the suits have been transferred from the
original side of the High Court) is directed to dispose of the suits within
a period of one year from the date of the receipt of copy of this judgment.
(ii) The deposited amount of Rs.98 lakhs invested in a Nationalized Bank
be renewed periodically and disbursed subject to the orders of the court
concerned.
(iii) All the observations/directions, particularly, the expression of the
Division Bench about the alleged conduct of respondent No.2 therein
(appellant herein) that she had approached the Court on the basis of false
and fabricated documents, is deleted and the trial Court is directed to
decide the issue on merits on the basis of the materials to be placed
before it.
(iv) The Court concerned is directed to adhere to the time schedule and
dispose of all the suits, after affording opportunity to all the parties
including the appellant herein, uninfluenced by any of the reasoning of the
High Court and this Court.
(v) The limited protection granted by this Court on 20.04.2012 directing
all the parties to maintain status quo prevailing as on that date shall be
continued till final decision being taken in the suits as directed above.
9) All the appeals are disposed of on the above terms. There shall be
no order as to costs.

.................................................
J.
(P. SATHASIVAM)







...............................................J
.
(RANJAN GOGOI)


NEW DELHI;
NOVEMBER 22, 2012.






















ITEM NO.1-D COURT No.3 SECTION IX
(For judgment)

S U P R E M E C O U R T O F I N D I
RECORD OF PROCEEDINGS

CIVIL APPEAL NOS.8202-8205/2012 @ SLP(C) Nos.6388-6391/2012

VASANTI BHAT APPELLANT(S)

Versus

PREMLATA A. AGARWAL & ANR.ETC. RESPONDENT(s)


DATE :22/11/2012 These matters were called
on for pronouncement of judgment today.

For Appellant(s) Mr. Abhay Prakash Sahay, Adv.
Mr. S.K. Sinha, Adv.
Ms.Suchita Pokharna, Adv.
Mr. Himanshu Shekhar, Adv.

For Respondent(s) Mr. Pramod B. Agrwala, Adv.
Mr. Prashant Mehra, Adv.

Mr. Ajay Amit Raj, Adv.
Mr. Shahid Anwar, Adv.

.....

Hon'ble Mr. Justice P. Sathasivam pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice Ranjan Gogoi.


Leave granted.


The appeals are disposed of with no order as to costs.




(Usha Bhardwaj) (Savita Sainani)
(Court Master) (Court Master)

[Signed reportable judgment is placed on the file ]

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11