Case Note & Summary
This judgment by a Larger Bench of the Bombay High Court at Nagpur addresses a reference arising from a writ petition where a learned Single Judge disagreed with an earlier Single Judge's decision in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar (2010) regarding the limitation period under Section 36(8) of the Waqf Act, 1995. The earlier judgment had held that the three-month limitation for filing an application for registration of waqf with the Waqf Board was mandatory and that the Board had no power to entertain applications beyond that period. The referring judge expressed disagreement, leading to the constitution of this Larger Bench. The core legal issue was whether the limitation under Section 36(8) is mandatory or directory. The court analyzed the language of Section 36, the object of the Waqf Act, and the consequences of non-compliance. It noted that Section 36(8) uses the word 'shall' but does not prescribe any consequence for delay, and that the provision is procedural in nature. The court emphasized that the purpose of the Act is to bring all waqfs under a central registry to ensure proper administration, and a strict interpretation would defeat this object. The court also considered that the Waqf Board has the power to register waqfs even after the initial period, as long as it acts reasonably. The court concluded that the limitation is directory, not mandatory, and the Board can entertain applications beyond three months. The decision in Mohd. Ansar Salik was overruled to that extent. The court directed the Waqf Board to consider the petitioners' application for registration on its merits, without being barred by limitation.
Headnote
A) Waqf Law - Registration of Waqf - Limitation under Section 36(8) of Waqf Act, 1995 - Directory or Mandatory - The issue was whether the three-month limitation for registration of waqf under Section 36(8) is mandatory or directory - The Larger Bench held that the limitation is directory, not mandatory, and the Waqf Board has power to entertain applications beyond three months - The court reasoned that the provision is procedural and purposive interpretation supports registration to achieve the object of the Act - Held that the view in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar (2010) that limitation is mandatory is not correct (Paras 1-21).
Issue of Consideration
Whether the limitation of three months prescribed under Section 36(8) of the Waqf Act, 1995 for entertaining an application for registration of waqf by the Waqf Board is mandatory or directory, and whether the Board has power to entertain such applications beyond the said period.
Final Decision
The Larger Bench answered the reference by holding that the limitation under Section 36(8) of the Waqf Act, 1995 is directory, not mandatory, and the Waqf Board has the power to entertain applications for registration of waqf beyond the period of three months. The judgment in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar (2010) was overruled to that extent. The writ petition was directed to be placed before the appropriate bench for consideration of the petitioners' application on merits.
Law Points
- Limitation under Section 36(8) of Waqf Act
- 1995 is directory
- not mandatory
- Waqf Board has power to entertain registration applications beyond three months
- Purposive interpretation of waqf registration provisions
Case Details
2019 LawText (BOM) (12) 108
Writ Petition No. 6104 of 2016
A.S. Chandurkar, Manish Pitale
Mr. M. Sharif, Mr. A. J. Mirza for petitioners; Mr. A. S. Dhore for respondent No.1; Mr. A. M. Kadukar, AGP for respondent No.2 & 3; Mrs. B. P. Maldhure for respondent No.6; Mr. R. L. Khapre and Mr. R. T. Anthony for respondents No.7 to 14
Smt. Zahedabi w/o Abdul Razaque Shete and others
The Maharashtra State Board of Waqf and others
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Nature of Litigation
Writ petition challenging the refusal of the Waqf Board to register a waqf on the ground of limitation under Section 36(8) of the Waqf Act, 1995.
Remedy Sought
The petitioners sought a direction to the Waqf Board to consider their application for registration of waqf on merits, despite the application being filed beyond the three-month period prescribed under Section 36(8).
Filing Reason
The Waqf Board refused to entertain the petitioners' application for registration of waqf on the ground that it was filed beyond the limitation period of three months under Section 36(8) of the Waqf Act, 1995, relying on the judgment in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar.
Previous Decisions
A learned Single Judge of this Court in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar (2010) held that the limitation under Section 36(8) is mandatory and the Board cannot entertain applications beyond three months. The referring judge in this case disagreed with that view, leading to the constitution of this Larger Bench.
Issues
Whether the limitation of three months under Section 36(8) of the Waqf Act, 1995 for registration of waqf is mandatory or directory.
Whether the Waqf Board has the power to entertain an application for registration of waqf beyond the period of three months.
Submissions/Arguments
Petitioners argued that the limitation under Section 36(8) is directory and the Board should consider their application on merits.
Respondents argued that the limitation is mandatory and the Board has no power to entertain applications beyond three months, relying on Mohd. Ansar Salik.
Ratio Decidendi
The limitation prescribed under Section 36(8) of the Waqf Act, 1995 for filing an application for registration of waqf is directory in nature, and the Waqf Board has the power to entertain such applications even after the expiry of three months, as the provision is procedural and a strict interpretation would defeat the object of the Act.
Judgment Excerpts
In the said earlier judgment of the learned Single Judge of this Court, in the context of the provisions of the Waqf Act, 1995, it was held that limitation prescribed in Section 36(8) of the said Act for entertaining an application for registration of waqf by the waqf Board was to be strictly construed and that the Board had no power to entertain an application for registration of waqf, beyond the period of limitation of three months.
This Larger Bench was constituted by the Hon’ble Chief Justice to answer a question referred for consideration by a learned Single Judge of this Court, expressing inability to agree with judgment passed by another learned Single Judge of this Court in the case of Mohd. Ansar Salik and others vs. Shaikh Hamid Babumiya Inamdar and others reported in 2010(5) Mh.L.J. 607.
Procedural History
The writ petition was filed before a learned Single Judge who disagreed with the earlier Single Judge's decision in Mohd. Ansar Salik v. Shaikh Hamid Babumiya Inamdar (2010) regarding the limitation under Section 36(8) of the Waqf Act, 1995. The learned Single Judge referred the question to a Larger Bench, which was constituted by the Chief Justice. The Larger Bench heard the matter and delivered this judgment on 18/12/2019.
Acts & Sections
- Waqf Act, 1995: Section 36(8)
