Waseem Ullah Beg vs Chairman U.P. Suuni Central Board Of ...

Respondent :- Chairman U.P. Suuni Central Board Of Waqfs & 2 Ors.

Counsel for Petitioner :- Akhlaq Ali,Mohammad Babar Khan,Rafat Farooqui,Zafar Yab Jilani

Counsel for Respondent :- Q.H. Rizvi,Syed Husain

Hon'ble Ved Prakash Vaish,J.

Hon'ble Narendra Kumar Johari,J.

(Delivered by Hon'ble Ved Prakash Vaish, J.)

1. Heard Sri Zafar Yab Jilani, Senior Advocate assisted by Ms. Rafat Farooqui, learned counsel for the petitioner and Sri Syed Husain, learned counsel for respondent no.3.

2. The petitioner has filed the present petition seeking to quash order dated 20th October, 2014 passed by respondent no.1 and Office Memorandum dated 21st October, 2014.

3. Learned Senior Counsel for the petitioner contended that in the year 2006, the petitioner was appointed as Mutawalli of Waqf No.111, Farrukhabad; the petitioner deposited the contribution of Waqf Board from time to time; on 23.06.2012, the petitioner applied for renewal of his Mutawalliship; vide order dated 24.06.2012, respondent no.1 allowed the petitioner to continue as Mutawalli for a period of three years with a direction to get the accounts of Waqf audited within a month and to pay the contribution; the petitioner get the record of Waqf audited on 15.05.2012 and deposited contribution of the Board amounting to Rs.1200/-.

4. Learned Senior Counsel for the petitioner also submitted that the petitioner has been performing his duties as Mutawalli with due diligence; on 03.10.2013, respondent no.3 moved an application to respondent no.1 alleging that the petitioner has not deposited the contribution of Waqf Board and requested for removal of the petitioner as Mutawalli and for his own appointment on the said post. A notice under Section 64 of the Waqf Act was issued to the petitioner on 09th May, 2014 calling upon the petitioner to reply to the said notice; the petitioner filed his objection in October, 2014. Vide order dated 21st October, 2014, respondent no.1 removed the petitioner from the office of Mutawalli and appointed respondent no.3 as Mutawalli of the Waqf for a period of three years. He further submitted that the petitioner moved an application for recall of order dated 20th October, 2014 and the said application was dismissed on the ground that the recall application is not maintainable.

5. On the other hand, learned counsel for the respondents has raised a preliminary objection regarding maintainability of the present writ petition on the ground that the petitioner has an alternative and efficacious statutory remedy of appeal under Section 64(4) of the Waqf Act, 1995 and Section 83 of the Waqf Act, 1995 before the Waqf Tribunal. Therefore, the writ petition is liable to be dismissed on this ground alone. He also submitted that in para no.32 of the writ petition, the petitioner has stated that since Waqf Tribunal is non-functional at present, as such, there is no remedy available to the petitioner except to file a writ petition under Article 226 of the Constitution of India.

6. Learned Senior Counsel for the petitioner submitted that even if there is a provision for appeal under Section 64(4) of the Waqf Act, 1995, the writ petition under Article 226 of the Constitution of India is maintainable. In support of his submission, he has relied upon the judgments in the case of 'Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors.', (1998) 8 SCC 1, 'Syed Mohammad Ahmad Hasan v. Shia Central Board of Waqf, U.P. & Ors', AIR 2009 Allahabad 38 and 'Mohd. Ismail v. U.P. Sunni Central Waqf Board and Ors.', 2016 (7) ADJ 619 (DB)(LB).

7. We have carefully considered the submissions made by learned counsel for both the parties and have perused the material available on record.

8. Before adverting to the rival submissions advanced on behalf of the parties, it would be useful to consider the relevant provisions of Section 64(4) of the Waqf Act, 1995 and the same reads as under:-

"(4) A mutawali who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. "

9. On a bare perusal of Section 64(4) of the Waqf Act, it is manifestly clear that a mutawali who is aggrieved by an order passed under any of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final.

10. It is well settled that before invoking jurisdiction under Section 226 of the Constitution of India, the aggrieved person must exhaust his statutory alternative remedy.

11. In the case of 'City and Industrial Development Corporation v. Dosu aardeshir Bhiwandiwala and Ors.', (2009) 1 SCC 168, the Hon'ble Supreme Court held:

"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: -

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factor."

12. In another case 'Nivedita Sharma v. Cellular Operators Association of India and Ors.', (2011) 14 SCC 337, the Hon'ble Supreme Court observed that where statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation. It was held that the petitioner must exhaust the statutory remedy before resorting to writ jurisdiction. It is true that in certain exceptional cases, the powers of judicial review under Article 226 of the Constitution of India can be invoked, even if, statutory remedy of appeal has not been exhausted.

13. In the case of Whirlpool Corporation (supra), certain conditions have been indicated wherein despite availability of an alternative remedy, powers of judicial review can be exercised by the High Courts. The Hon'ble Supreme Court observed as under:

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions on the evolutionary era of the constitutional law as they still hold the field. "

14. The Hon'ble Supreme Court in the case of 'Commissioner of Income Tax v. Chhabil Dass Agarwal', (2014) 1 SCC 603 has observed that statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation subject to such exception. The Hon'ble Supreme Court held that it is settled law that non-entertainment of petition under writ jurisdiction by the High Court when an efficacious alternative remedy is available, is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Hon'ble Supreme Court has also observed that, undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.

15. The relevant paras of the judgment in the case of 'Commissioner of Income Tax v. Chhabil Dass Agarwal'(supra), are as under:

"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).

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15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case."

16. Admittedly, the impugned order dated 20th October, 2014 is appealable under Section 64(4) of the Waqf Act, 1995 and the petitioner did not avail the statutory remedy of appeal and has filed the present writ petition under Article 226 of the Constitution of India. The appeal before the Waqf Tribunal would not simply be an alternative remedy but efficacious also.

17. At this juncture, it is relevant to mention here that the Waqf Tribunal was constituted in April, 2014 and the impugned order was passed on 20th October, 2014 and the writ petition was filed on 05.01.2015. It is not the case of petitioner that the Tribunal was not constituted at the time of passing the impugned order.

18. Learned Senior Counsel for the petitioner contended that the Waqf Tribunal was in existence but one member of the Tribunal was not available and therefore, the appeal was not filed. In case, the Waqf Tribunal was constituted as per provisions of Section 83 of the Waqf Act, 1995 before passing the impugned order, the petitioner could have preferred an appeal before the Waqf Tribunal and therefore, the writ petition is not maintainable. Even if, one member of the Tribunal was not available, there was no bar in filing the appeal.

19. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid judgments, we are of the considered view that the present case does not fall within any of the exceptions as indicated in Whirlpool Corporation's case (supra).

20. In view of our finding that an alternate remedy of appeal under Section 64(4) of the Waqf Act, 1995 is available to the petitioner and the writ petition is not maintainable, it is not necessary to delve into the merits of the case.

21. In view of the above discussion, the writ petition is not maintainable and the same is hereby dismissed. However, it is made clear that dismissal of the present writ petition will not stand in the way of the petitioner seeking any other remedy as is available in law.

22. No order as to costs.

23. Interim application (s), if any, stands disposed of.

(Narendra Kumar Johri) (Ved Prakash Vaish)

Judge Judge

Order Date :- 03rd March, 2020

Shanu/-