Muhammad Saghir Khan vs U.P.Sunni Central Board Of Waqf ...
2022 Latest Caselaw 217 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Chief Justice's Court
 
Serial No. 303
 

 
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
(Lucknow Bench)
 
***
 
Special Appeal No. 167 of 2021
 
(Arising out of WRIT-C No. 5314 of 2021)
 

 
      Pronounced on 24 March, 2022
 

 

 
Muhammad Saghir Khan 							  
 
....Appellant
 
	Through:- Mr. Arshan Ahsan Siddiqui, Advocate
 
			
 
v/s
 
U.P. Sunni Central Board of Waqf, Lucknow and others
 
      ...    Respondents
 

 
	Through:- Mr. S.Q.H. Rizvi, Advocate for respondent nos. 1 to 		      3, Mr. Gopesh Tripathi, Advocate for respondent no.4  
 
Coram:  HON'BLE RAJESH BINDAL, CHIEF JUSTICE
 
	     HON'BLE JASPREET SINGH, JUDGE
 
ORDER

JASPREET SINGH,J.

1. Heard Sri Arshad Ahsan Siddiqui, learned counsel for the appellant and Sri S.Q.H. Rizvi, learned Counsel for the respondents.

2. The instant appeal has been preferred against the judgment and order dated 23.02.2021 passed by the learned Single Judge in Writ Petition No. 5314 (MS) of 2021 (Mohd. Saghir Khan Vs. U.P. Sunni Central Board, Waqf and Others) whereby the writ petition was dismissed on the ground of availability of alternate statutory remedy.

3. The learned counsel for the appellant submits that the learned Single Judge has erred in dismissing the writ petition on the ground of availability of alternate remedy despite a specific ground having been raised that the order impugned in the writ petition was wholly without jurisdiction and such an order could be assailed in a writ petition in view of the decision of the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1.

4. It has further been urged that the learned Single Judge has failed to notice that the order impugned in the writ petition was wholly without jurisdiction as it had been passed by the Civil Court by usurping the jurisdiction of a Waqf Tribunal and such an order was not liable to be sustained and was amenable to the writ of certiorari as held by the Apex Court in the case of Syed Yakub Vs. K.S. Radhakrishanan and Others reported in AIR 1964 SC 477.

5. Thus, it is urged that the learned Single Judge in the aforesaid backdrop ought not to have relegated the appellant to the remedy of filing a revision under the provisions of the Waqf Act as the the order impugned was passed by the Civil Court which did not have jurisdiction to pass the said order, hence, the Special Appeal deserves to be allowed.

6. Per contra, the learned counsel for the respondents has urged that the instant Special Appeal is not maintainable in view of the fact that the order impugned emerges from proceedings of a Civil Court/Tribunal under the provisions of Waqf Act, hence, in light of a full Bench decision of this Court in the case of Sheet Gupta Vs. State of U.P. and Others reported in 2009 SCC Online All 1613 the appeal deserves to be dismissed.

7. Having heard the learned counsel for the parties and from the perusal of the material available on record, it appears that one Sri Shekh Mohd. Yakub challenged an order dated 18.07.1985 whereby the Waqf Board had appointed Sri Anwar Rashid Khan as Mutawalli of Waqf No. 4. Madarasa Rahmania, Raebareli. This challenge was made before the Civil Judge/the Waqf Tribunal, Raebareli and registered as Case No. 74 of 1985 (Shekh Mohd. Yakub Vs. U.P. Central Sunni Board, Waqf and Others).

8. The said case came to be decided ex-parte by means of judgment dated 22.08.1986 by the Civil Judge/Waqf Tribunal and the order dated 18.07.1985 by which Sri Anwar Rashid Khan was appointed as Mutawalli was set aside and it was further held that the property in question was not a waqf property but was a self-acquired property of Sheikh Mohd. Yakub.

9. The Waqf Board thereafter preferred Revision No. 179 of 1986 before the High Court, which was allowed by means of judgment dated 12.11.2007 and the matter was remanded to the Court concerned to decide the case afresh. The record further indicates that after remand, the matter was again considered by the Tribunal and by means of order dated 20.05.2014 it once again decreed the suit and the order dated 18.07.1985 was set aside.

10. Being aggrieved against the aforesaid order dated 20.05.2014, the appellant preferred a writ petition before the learned Single Judge which has been dismissed on the ground of availability of statutory remedy of Revision as provided under the Waqf Act by means of order dated 23.03.2021, which is under challenge in the instant appeal.

11. In order to ascertain whether the Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is maintainable, it will be gainful to glance at the said provision which reads as under:-

"5. Special Appeal.-- An appeal shall lie to the Court from a Judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by the Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal Jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award -- (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."

12. If the facts of the instant case are noticed in context with the submissions made by the learned counsel for the appellant, it would clearly reveal that the proceedings were initiated under the Uttar Pradesh Waqf Act, 1960. At the relevant time, the Civil Judge was vested with the powers of the Waqf Tribunal and as noticed above the order passed by the Waqf Tribunal was assailed in a civil revision before this Court and while allowing the civil revision, the matter was remanded to the Tribunal to re-consider the matter, which was done by means of the order dated 20.05.2014.

13. By the time, the matter was remanded vide order dated 12.11.2007. The Uttar Pradesh Waqf Act, 1960 had been repealed and the Waqf Act of 1995 came into force.

14. Now either way, whether the order dated 20.05.2014 passed by the Civil Judge, Raebareli is treated to be an order passed by a Civil Court in its plenary jurisdiction or a Tribunal exercising powers under the Waqf Act, the fact remains that against such an order, the appellant if aggrieved has an alternate and statutory remedy available under the C.P.C. or the Waqf Act, 1995 as the case may be.

15. The order of Civil judge if treated to be an order of a Civil Court would not be amenable to a writ of certiorai under Article 226 of the Constitution of India as held by the Apex Court in Radhey Shyam and Another Vs. Chhabi Nath and others reported in (2015) 5 SCC 423 and the relevant portion reads as under:-

"18. While the above judgments dealt with the question whether judicial order could violate a fundamental right, it was clearly laid down that challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Articles 226 and 32.

19. Another Bench of three Judges in Sadhana Lodh v. National Insurance Co. Ltd. [(2003) 3 SCC 524 : 2003 SCC (Cri) 762] considered the question whether remedy of writ will be available when remedy of appeal was on limited grounds. This Court held: (SCC p. 527, para 6)

"6. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi [(2002) 7 SCC 456 : 2002 SCC (Cri) 1788] ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

21. Thus, it has been clearly laid down by this Court that an order of the civil court could be challenged under Article 227 and not under Article 226."

27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."

16. On the other hand, if the order is treated to be an order passed by the Tribunal under the Waqf Act then also the said order can be assailed by taking recourse to the statutory remedy available under the Waqf Act and the writ petition may not be the appropriate remedy. The Apex Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and others vs. Tuticorin Educational Society and others reported in (2019) 9 SCC 538 had the occasion to consider the issue of jurisdiction under Article 226 of the Constitution of India viz a viz the availability of adequate statutory remedy and it held as under:-

"11. Secondly, the High Court ought to have seen that when a remedy of appeal under Section 104(1)(i) read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, was directly available, Respondents 1 and 2 ought to have taken recourse to the same. It is true that the availability of a remedy of appeal may not always be a bar for the exercise of supervisory jurisdiction of the High Court. In A. Venkatasubbiah Naidu v. S. Chellappan [A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695] , this Court held that "though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is a well-recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies before he resorts to a constitutional remedy.

12. But courts should always bear in mind a distinction between (i) cases where such alternative remedy is available before civil courts in terms of the provisions of Code of Civil Procedure, and (ii) cases where such alternative remedy is available under special enactments and/or statutory rules and the fora provided therein happen to be quasi-judicial authorities and tribunals. In respect of cases falling under the first category, which may involve suits and other proceedings before civil courts, the availability of an appellate remedy in terms of the provisions of CPC, may have to be construed as a near total bar. Otherwise, there is a danger that someone may challenge in a revision under Article 227, even a decree passed in a suit, on the same grounds on which Respondents 1 and 2 invoked the jurisdiction of the High Court. This is why, a 3-member Bench of this Court, while overruling the decision in Surya Dev Rai v. Ram Chander Rai [Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675] , pointed out in Radhey Shyam v. Chhabi Nath [Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 : (2015) 3 SCC (Civ) 67] that "orders of civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts".

17. Thus, the view taken by the learned Single Judge relegating the appellant to avail the alternate statutory remedy, cannot be said to be erroneous. However, the writ petition filed before the learned Single Judge either under Article 226 or 227 of the Constitution of India, which emerges from proceedings from the Civil Court/Tribunal under the Waqf Act and in view of th embargo placed by Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, the special appeal would not be maintainable against such an order passed by a Single Judge of the Court exercising powers under Article 226 or 227 of the Constitution of India. A full Bench of this Court in Sheet Gupta's case (supra) has held as under:

"18. Having given our anxious consideration to the various plea raised by the learned counsel for the parties, we find that from the perusal of Chapter VIII Rule 5 of the Rules a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:

1. The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;

2. The order made by one Judge in the exercise of revisional jurisdiction;

3. The order made by one Judge in the exercise of the power of Superintendence of the High Court;

4. The order made by one Judge in the exercise of criminal jurisdiction;

5. The order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by

(i) the tribunal,

(ii) Court or

(iii) statutory arbitrator

made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;

6. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of

(i) the Government or

(ii) any officer or

(iii) authority,

made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India.

20. The exercise of original jurisdiction by any tribunal, Court or statutory arbitrator or exercise of appellate or revisional jurisdiction by the Government or any officer or authority is to be under any U.P. Act or any Central Act with respect to the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India. The powers have to be exercised under the Act and not given by the Act. As held by the Apex Court in the case of Dr. Indramani Pyarlal Gupta (supra) the words ''powers exercised under the Act' would comprehensively embrace in its power conferred by any bye laws or delegated legislation. If the appellate or revisional powers has been conferred by the Government trough an order issued under the delegated provisions of the Act then it is definitely a power exercised under the Act and in that event no special appeal under Chapter VIII Rule 5 of the Rules would lie against the judgment and order passed by the learned single Judge. In the present case, we find that the Commissioner had exercised powers conferred under Clause 28 of the Distribution Order, 2004, which order has been passed under the provisions of the Act, therefore, the appellate power has been exercised under the Act and, thus, no special appeal would lie. It may be mentioned here that right of an appeal is a statutory right and not a vested right and can be hedged by conditions as held by the Apex Court in the cases of Smt. Ganga Bai (supra) and Vijay Prakash & Jawahar (supra). The Division Bench of this Court while deciding the case of Ram Dhyan Singh (supra), has incorrectly taken the view that the order should be passed in exercise of appellate or revisional jurisdiction conferred by some Act whereas under Chapter VIII Rule 5 of the Rules, a special appeal would not lie if the appellate or revisional jurisdiction have been conferred on an authority under any U.P. Act or Central Act relating to any of the entries enumerated in the State List or Concurrent List of the Seventh Schedule of the Constitution of India."

18. In so far as the reliance placed by the learned counsel for the appellant on the decision in Whirlpool Corporation's case (supra) is concerned, the proposition of law as enumerated therein is not disputed, however, the fact remains that the appellant has a statutory remedy of filing a revision under the Waqf Act, 1995 and the Apex Court in the case of Authorized Officer, State Bank of Travancore and another vs. Mathew K.C. reported in (2018) 3 SCC 85 has held as under:-

"5. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as follows: (SCC p. 611, para 15)

"15. Thus, while it can be said that this Court has recognised 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 [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] 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."

19. Thus, in light of the proposition as noted above also considering the dictum of the Apex Court in the case of Vidhunagar (Supra), the appellant could not encompass its case within the exceptions as enumerated in the case of CIT Vs. Chhabil Dass Agarwal reported in (2014) 1 SCC 603, hence, the case of Whirlpool (supra) will not come to the rescue of the appellant. Even the case of Syed Yakub (supra) has no applicability in light of the decision of Radhey Shyam (supra) as noted above. Moreover, the learned counsel for the appellant could not dispute the embargo placed by the the binding precedent of the Full Bench of Sheet Gupta (supra), which is squarely applicable to the present case.

20. In light of the detailed discussion, this Court is of the considered view that the Special Appeal is not maintainable and it is accordingly dismissed. No order as to costs.

Lucknow    		         (Jaspreet Singh, J.)         (Rajesh Bindal, C.J.) March 24, 2022
 
Asheesh
 
        
 

 

 
		
 
		Whether the order is speaking 	:  	Yes/No
 
		Whether the order is reportable	:	Yes/No