1. Heard both sides finally at the admission stage.

2. Applicants are taking exception to the distinct judgment and order dated 16.06.2023 rejecting Waqf Application No.3 of 2019 and allowing Waqf Application No.38 of 2021. Applicants are the elected trustees who are aspiring for approval of their change report.

3. The respondent no.1 – Choti Masjid Trust is having registration under Maharashtra Public Trust Act. It is a waqf registered under the Waqf Act, 1995 (hereinafter referred to as ‘the Act’ for the sake of brevity and convenience).

4. For the administration of respondent no.1, a scheme was sanctioned by judgment dated 10.07.1989 by Joint Charity Commissioner, Aurangabad, which will be referred to as the Scheme which is at Exhibit A of the paper book. The applicants were elected on 25.02.2019 as trustees for the period of five years. They had submitted change report to respondent no.2 – Waqf Board. It was approved in resolution dated 01.09.2021 by the Board. Being aggrieved, Waqf Application No.38 of 2021 was filed by respondent no.1. Against the direction issued by respondent no.2 – Board for the appointment of Election Officer, Waqf Application No.3 of 2019 was filed.

5. So far as the impugned judgment passed in Waqf Application No.3 of 2019 is concerned, the matter has become infructuous. The tenure of the present applicants expired on 25.02.2024. The respondents are expected to conduct the election. It is reported that very few persons of First Board of Trustees are surviving. The need to conduct election is apparent. The counsels of both sides are unanimous on the point that the Scheme to the extent of clauses 8 (C) and (D) is ambiguous. The applicants seek clarification and the purposive interpretation of the Scheme so as to facilitate the conduct of transparent and fair election. In this backdrop, I propose to examine the impugned order and relevant portions of the Scheme.

6. Mr. Ameet Vaidya, learned counsel appearing for the applicants submits that the Tribunal overlooked resolution dated 22.12.1989 and in view of clause 27 of the scheme, the resolution has a binding force in the absence of any rules of regulations to regulate the elections. It is submitted that the Tribunal should have upheld the election of the applicants. It is submitted that the Scheme clause 8 (C) and (D) are autocratic in nature. Applicants filed application for modification of the Scheme but it has not been decided. It is further submitted that clause 8 (C) and (D) need to be interpreted so that they would become enforceable and practicable. Learned counsel submits that the respondent no.2 – Board would consume time to modify any new scheme.

7. Mr. S. S. Kazi, learned counsel appearing for respondent no.1 submits that it would be the function of the Board to formulate the scheme and the Tribunal could not have assumed such powers. It is submitted that respondent no.2 – Board approved the change report of the applicants by non-speaking order, which is perversity. Learned counsel supports the impugned order on the ground that the Scheme was not challenged before the Tribunal. It is vehemently contended that both sides are willing to file applications for amendment to scheme and necessary directions be issued to the respondent no.2 – Board to decide the applications.

8. Learned counsel for respondent nos.2 and 3, Mr. N. E. Deshmukh submits that clause 8 (C) and (D) are ambiguous and autocratic. He adverts my attention to Section 69 of the Act.

9. I have considered rival submissions of the parties. Undisputedly, the administration of respondent no.1 is regulated by the Scheme. No rules or regulations are framed till this date by resorting to clause 27 of the scheme for the conduct of elections. The tenure of the First Board of Trustees was for six months from 10.07.1989. The election program was published on 13.02.2019 by Election Officer Advocate Mr. Abid Amir Hamza Inamdar. Elections were conducted and result was declared on 25.02.2019, declaring the applicants as elected trustees.

10. The respondent no.2 did not assign any reason for approving change report of the applicant. Its resolution passed on 01.09.2021 is perverse.

11. In the impugned judgment and order, it is recorded by Tribunal that the final voters list was defective. The age of a few of the voters was below twenty one years. There was no consultation with the Board of Trustees before publishing election program. The Election Officer acted without jurisdiction. He should not have continued with the election process. Ultimately, it is held that there was ambiguity in the electoral college which was not clarified by respondent no.2 – Board. For this reason the change report was rejected.

12. There is no dispute that by reasoned order, learned Joint Charity Commissioner framed the scheme on 10th July 1989. No Rules or Regulations are framed to regulate the election process. Everything is left to the following clauses for which there is a absurdity.

                    (C) Qualification of trustees:- The trustee should be the male Sunni Muslim, R/o the area of Peth Ahmedpur Mohalla and vicinity area under the mosque at Nandura. He should not be less than 21 years of age. He should not be an employee of the trust or indebtor to the trust or the tenant of the trust. He should possess good moral character having interest in the trust within the meaning of the Act.

                    (D) Period of trusteeship:- The period of the trusteeship shall be for a period of five years and thereafter there shall be the election of the board of trustees from amongst the trustees, a qualified in clause (C) of the scheme. However the first board of trustees, appointed hereby under this scheme, shall work only for a period of six months and before expiry of the period of six months, they shall hold elections of the board of trustees of the said trust.

13. The parties have rival claims for issuing direction to the respondent no.2 – Board to frame the scheme. The functions of the Board are provided by Section 32 of the Act. The following are the relevant provisions - Section 32 (2) (c) and (d).

                    The Waqf Act, 1995

                    1. …….

                    2. …….

                    Section 32 : Powers and functions of the Board.

                    (1) …..

                    (2) …..

                    (a) ……

                    (b) ……

                    (c) to give directions for the administration of wakf

                    (d) to settle schemes of management for a waqf

14. The respondent no.2 – Board is empowered to frame scheme for the administration of Waqf under Section 69 of the Act. The scheme framed under Sub-section (1) is susceptible to the challenge by preferring appeal to the Tribunal under Sub-section (3). Under normal course, this Court would have directed the respondent no.2 – Board to frame or modify the scheme. Applicants claim that they have filed application for amendment to the scheme on or about 26.09.2024 before respondent no.2 – Board, albeit it has not been registered.

15. As on today, no specific application seeking amendment or modification of the Scheme dated 10.07.1989 is pending before respondent no.2 – Board. The respondent no.2 – Board also can suo moto undertake the exercise of modification of Scheme. An order under Section 69 (1) is appealable before the Tribunal. This exercise is likely to consume time. The tenure of the so-called elected body is over on 25.02.2024. Considering exigency, it is not possible to issue the directions to respondent no.2 – Board to decide the modification of the scheme and till then to postpone the elections.

16. The Tribunal should have decided the true purport of clause 8 (C) and (D). The findings regarding the voters’ list and the appointment of the Election Officer involve disputed questions of facts. The respondent no.2 – Board also abdicated its duties when parties approached it seeking clarification of the relevant clauses of the Scheme. Instead of castigating the Tribunal, I propose to deal with the purport of clause (C) and (D) so as to facilitate the conduct of election process immediately. It will serve as time gap arrangement till any modification of the Scheme occupies the field at instances of respondent no.2 – Board.

17. The purport of the Scheme is clear as to the qualifying age of the voters. It is not a case that the voters having age of 21 and above are not available. Any other interpretation or the norms stipulating qualified age as 18 years is not possible to be countenanced. In the last election also maximum voters were qualifying 21 years. The qualifying age of a voter has to be 21 years.

18. The scheme formulated by the Competent Authority has enabling provision of clause 27 for formation of the rules and regulations for appropriate administration and carrying out the provisions of the scheme. The respondent no.1 – Trust passed a resolution in a special meeting dated 22.12.1989 which was produced before Tribunal. Clause 8 (C) of the scheme in question is ambiguous in the sense that the place of residence of the trustee. The Masjid of respondent no.1 is located at village Peth Ahmedpur, Taluka Nandura, District Buldhana. The surrounding vicinity of the Masjid can be said to be the place of residence contemplated by the clause in resolution. It is described as the bunglow of Sayyed Ekramoddin Saheb, Amboda Naka, Police Station, the houses of Shaikh Bashir Saheb and Chote Khan Saheb. There is no serious dispute between the parties that the vicinity surrounding Peth Ahmedpur would be the qualified place of residence of a voter.

19. The clause 8 stipulates First Board of Trustees. The entire scheme is silent as to who would be members or the voters who would select the trustees. The clause (D) contemplates election after five years from amongst the trustees. Word trustee is misnomer for word member or the voters of the trust. Hence, the qualification prescribed by 8 (C) is applicable for trustees as well as members or voters of the trust. The members or the voters whose names are appearing in the final voters list would elect trustees. The board of trustees in turn would elect Chairman and Secretary as per clause 12 of the Scheme.

20. The explanation or the clarification in the forgoing paragraphs would facilitate free and transparent election without any confusion. It is expected of the parties to approach the respondent no.2 – Board in a prescribed format for amendment or modification of the Scheme. Till the respondent no.2 – Board formulates new Scheme or modifies earlier Scheme, the above Standard Operational Procedure (SOP) shall regulate the elections.

                    O R D E R

                    A. Civil Revision Application is disposed of and following directions are issued which shall regulate the conducting of elections till the amended Scheme is made enforceable :

                    (i) The qualifying age of the voters and the trustees shall be 21 years.

                    (ii) The qualifying place of residence of the voters shall be village Peth Ahmadpura, Tq. Nandura and surrounding vicinity including Amboda Naka, police station.

                    (iii) The word trustee appearing in clause 8 (C) of the scheme shall mean and include voter or member of the respondent No. 1 – trust, who shall elect the trustees for a period of five (05) years.

B. The respondent No. 1 shall undertake the election process and it shall be completed within a period of two (02) months by following the scheme as well as above referred directions, notwithstanding the pendency of any application for modification or amendment to the Scheme.

C. The respondent No. 2 – Board shall decide the applications for modification or amendment to the Scheme on its own merits, if submitted by parties or the persons having interest in the waqf.