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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