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Bombay High Court

SHAIKH AMIN HUSSAIN PRESIDENT AND OTHERSversusGHANSHYAM PRATAPRAO SHELAR

Disposal
DISPOSED OFF

Holding

Section 41A does not empower the Deputy Charity Commissioner to order de‑registration of a trust from the Waqf Board; the order is ultra vires and is quashed.

Summary

The petitioners, trustees of Shaikh Mohammad Baba Dargah Trust, challenged an order by the Deputy Charity Commissioner issued under Section 41A of the Maharashtra Public Trusts Act directing them to de‑register the trust from the Waqf Board. The petitioners argued that Section 41A only empowers the Commissioner to issue directions for proper administration and protection of trust property, not to order de‑registration, which is governed by the Waqf Act, 1995. The respondent contended that the dual registration as a trust and a waqf created management problems and that the Commissioner was within jurisdiction. The Court examined the language of Section 41A and found no basis for the Commissioner to order de‑registration, noting the absence of any danger to the trust’s property. Consequently, the Court quashed the impugned order, allowed the writ petition, and granted a three‑week stay of the judgment’s operation.

Issues considered

  • Whether Section 41A of the Maharashtra Public Trusts Act, 1950 empowers the Deputy Charity Commissioner to direct de‑registration of a trust from the Waqf Board.
  • Whether the Deputy Charity Commissioner had jurisdiction to issue such a direction when the trust is also registered under the Waqf Act, 1995.
  • Whether remedies under the Waqf Act, 1995 are exclusive for de‑registration matters.

Legislation cited

Subjects

  • Waqf
  • Public Trust
  • Section 41A
  • de‑registration
  • jurisdiction
  • Maharashtra Public Trusts Act
  • Waqf Act 1995
  • charitable trust

Judgment

2026:BHC-AUG:41455-DB

                                                                               901-WP.9747.2026.doc


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                 901 WRIT PETITION NO. 9747 OF 2026

                            Shaikh Amin Hussain President And Others
                                           VERSUS
                                   Ghanshyam Prataprao Shelar
                                               ...
                Mr. Shaikh Mujtaba Gulam Mustafa, Advocate for the Petitioners.
                Mr. M. D. Deshmukh h/f. Mr. U. L. Momale, Advocate for the
                Respondent.
                                               ...

                                                   CORAM : KISHORE C. SANT &
                                                           JITENDRA JAIN, JJ.
                                                   DATE      : 4th SEPTEMBER, 2026

                PER COURT :

                1.       Heard learned Advocates for the parties.

                2.       By consent, petition is taken up for final disposal at the stage of

                admission.

                3.       The   sole   respondent     approached     the   Deputy      Charity

                Commissioner, Ahilyanagar by filing an application under Section

                41A of the Maharashtra Public Trusts Act, 1950. The said application

                came to be allowed. The learned Deputy Charity Commissioner

                directed the Trustees i.e. the petitioners of Shaikh Mohammad Baba

                Dargah Trust, registered as a Public Trust bearing No. E-71 to pass a

                resolution for de-registering the Trust from the Waqf Board, as the

                said Trust is also registered as a Waqf. The petitioners-trustees,


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therefore, being aggrieved by the said order dated 15.05.2026 have

approached this Court.

4.       Mr. Mustafa, learned advocate for the petitioners, vehemently

argues that an application was essentially under Section 41A of the

Maharashtra Public Trusts Act, 1950, only deals with the powers of

the Deputy Charity Commissioner to pass appropriate orders for

proper administration of the Trust. In the present case, the prayer

itself would show that it was not for proper administration of the

Trust, but was for directing the petitioners to get the Trust de-

registered as a Waqf by making necessary application before the Waqf

Board under the Waqf Act, 1995. He further submits that, if at all the

said entity is to be de-registered as a Waqf, there are remedies

provided under the Waqf Act, 1995. The authorities under the

Maharashtra Public Trusts Act would have no jurisdiction to deal with

that aspect. He submits that no case was made out to demonstrate

that the Trust is not being properly administered making it necessary

to invoke the powers under Section 41A. He, therefore, prays for

quashing and setting aside the impugned order.

5.       Mr.   Deshmukh,   learned   advocate   for   the   respondent,

vehemently opposes the petition. He submits that infact in the year

2008, the petitioners themselves had made an application to the

Collector for de-registering the said entity as a Waqf. Now they
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cannot turn around and say that the Deputy Charity Commissioner’s

order is without jurisdiction. He submits that though the Waqf is

registered with the Waqf Board, the authority is still exercised by the

authorities under the Maharashtra Public Trusts Act. The accounts,

audit     reports   etc.   are   submitted    with   the   Deputy       Charity

Commissioner. When, for all the purposes, the entity is a Trust, it is

creating problems as the said is also registered under the Waqf Act.

Both these registrations cannot go together. He, therefore, submits

that Deputy Charity Commissioner has rightly observed, if the

situation continues, there would be mismanagement and there is

apprehension of financial irregularities which would affect the

working of the Trust. He submits that it is rightly observed that the

registration with the Waqf Board is only ad-hoc and he, therefore,

defended the order.

6.       Section 41A of the Maharashtra Public Trusts Act, 1950 reads

as under :-

         41A. Power of Commissioner to issue directions for proper
         administration of the trust.––
          “(1) Subject to the provisions of this Act, the Charity
          Commissioner may from time to time issue directions to any
          trustee of a public trust or any person connected therewith, to
          ensure that the trust is properly administered, and the income
          thereof is properly accounted for or duly appropriated and
          applied to the objects and for the purposes of the trust; and
          the Charity Commissioner may also give directions to the
          trustees or such person that if he finds any property of the
          trust is in danger of being wasted, damaged, alienated or

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          wrongfully sold, removed or disposed of.
          (2) It shall be the duty of every trustee or of such person to
          comply with the directions issued under sub-section (1).”


7.       On a reading of the section itself, it is seen that the power of

Charity Commissioner is to issue directions to the trustees only in

cases where he finds that any property of the trust is in danger of

being wasted, damaged, alienated or wrongfully sold, removed or

disposed of. In the present case, we hardly find any case made out

falling under any of the above categories. The Trust is already

registered as a Trust since 1953. Merely because it is also registered

under the Waqf Act, will not take away the character of the Trust. In

any case, when the Deputy Charity Commissioner exercises

jurisdiction, he has to first form an opinion that a case is made out

under Section 41A for issuance of directions. For that purpose, he has

to first come to the conclusion that directions are necessary to save

the property of the Trust from danger, being wasted, damaged,

alienated or wrongfully sold, etc.

8.       In the present case, the prayer itself is for a direction to the

petitioners to get the Waqf de-registered from the Waqf Board. We

hardly find that the said prayer would fall under Section 41A. As

rightly pointed out by the learned advocate for the petitioners, there

are remedies provided under the Waqf Act. It is open for the

respondent to resort to such remedies, if at all advised.
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9.       With this, this Court finds that the petition deserves to be

allowed. The impugned order dated 15.05.2026 stands quashed and

set aside. The petition thus stands allowed and disposed off.

10.      The observations in this order are strictly for the purpose of

deciding this writ petition and shall not be considered as observations

made on merits or otherwise.

11.      At this stage, learned advocate for the respondent prays for

stay of the effect of this order for a period of three weeks from today.

The effect and operation of this order shall not come into effect for a

period of three weeks from today.



 (JITENDRA JAIN, J.)                           (KISHORE C. SANT, J.)




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