Bombay High Court
Chand Abbsali Shaikh vs The Chief Executive Officer ... on 14 December, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6629 OF 2018
CHAND ABBASALI SHAIKH
VERSUS
THE CHIEF EXECUTIVE OFFICER MAHARASHTRA
STATE WAKF BOARD AND OTHERS
...
Advocate for the Petitioner : Shri Shaikh Mobin H.
Advocate for Respondent 1 : Shri A.D. Pawar h/f Shri N.E.
Deshmukh
Advocate for Respondent 3 : Shri S.A.P. Quadri
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 14th December, 2021
Per Court :-
1. We have briefly heard the learned counsel for the
respective sides and have perused Section 83 of the Waqf Act,
1995. The petitioner obviously is not the Mutawalli. He is a
person, who claims that the donations dropped in the donation
box at the "Dargah Sayyada Khairunisa Begum alias Sarkar Nani
Maa", situated at Naldurg, Taluka Tuljapur, District Osmanabad,
are being siphoned off and therefore, CCTV camera should be
installed. By the order dated 17.05.2018, the Chief Executive
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Officer of the Maharashtra State Waqf Board, Aurangabad
granted such permission. The petitioner spent about Rs.64430/-
for purchasing equipment. However, the Chief Executive Officer
suo moto passed an order on 25.05.2018 withdrawing the earlier
order.
2. We find that there are disputed questions raised
before us as regards the locus of the petitioner. The question as to
whether, the Chief Executive Officer has the power to review, is
also raised.
3. There can be no debate that specific Tribunals have
been created for dealing with all grievances and for considering
challenges to any order that may be passed under the Waqf Act or
the Rules. Section 83(1), (2) and (3) of the Waqf Act, 1995 read
as under :-
"83. Constitution of Tribunals, etc.--
[(1) The State Government shall, by notification in
the Official Gazette, constitute as many
Tribunals as it may think fit, for the
determination of any dispute, question or
other matter relating to a waqf or waqf
property, eviction of a tenant or determination
of rights and obligations of the lessor and the
lessee of such property, under this Act and
define the local limits and jurisdiction of such
Tribunals.]
(2) Any mutawalli person interested in a [waqf]
or any other person aggrieved by an order
made under this Act, or rules made
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thereunder, may make an application within
the time specified in this Act or where no such
time has been specified, within such time as
may be prescribed, to the Tribunal for the
determination of any dispute, question or
other matter relating to the [waqf].
(3) Where any application made under sub-section
(1) relates to any [waqf] property which falls
within the territorial limits of the jurisdiction
of two or more Tribunals, such application
may be made to the Tribunal within the local
limits of whose jurisdiction the mutawalli or
any one of the mutawallis of the [waqf]
actually and voluntarily resides, carries on
business or personally works for gain, and,
where any such application is made to the
Tribunal aforesaid, the other Tribunal or
Tribunals having jurisdiction shall not
entertain any application for the determination
of such dispute, question or other matter:
Provided that the State Government may, if it
is of opinion that it is expedient in the interest
of the [waqf] or any other person interested
in the [waqf] or the [waqf] property to
transfer such application to any other Tribunal
having jurisdiction for the determination of the
dispute, question or other matter relating to
such [waqf] or [waqf] property, transfer such
application to any other Tribunal having
jurisdiction, and, on such transfer, the Tribunal
to which the application is so transferred shall
deal with the application from the stage which
was reached before the Tribunal from which
the application has been so transferred, except
where the Tribunal is of opinion that it is
necessary in the interest of justice to deal with
the application afresh."
4. The learned advocate for the petitioner has placed
reliance upon the judgment delivered by the Honourable
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Supreme Court in Magadh Sugar and Energy Limited vs. The
State of Bihar and others, 2021 SCC Online 801 . The principles
culled out by the Honourable Supreme Court are set out in
paragraph 19, which read thus :-
"19. While a High Court would normally not exercise
its writ jurisdiction under Article 226 of the
Constitution if an effective and efficacious
alternate remedy is available, the existence of an
alternate remedy does not by itself bar the High
Court from exercising its jurisdiction in certain
contingencies. This principle has been crystallized
by this Court in Whirpool Corporation v. Registrar
of Trademarks, Mumbai, (1998) 8 SCC 1 and
Harbanslal Sahni v. Indian Oil Corporation Ltd.,
(2003) 2 SCC 107. Recently, in Radha Krishan
Industries v. State of Himachal Pradesh and others,
a two judge Bench of this Court of which one of us
was a part of (Justice DY Chandrachud) has
summarized the principles governing the exercise
of writ jurisdiction by the High Court in the
presence of an alternate remedy. This Court has
observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any
other purpose as well;
(ii) The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where an
effective alternate remedy is available to the
aggrieved person;
(iii) Exceptions to the rule of alternate remedy
arise where (a) the writ petition has been filed for
the enforcement of a fundamental right protected
by Part III of the Constitution; (b) there has been a
violation of the principles of natural justice; (c) the
order or proceedings are wholly without
jurisdiction; or (d) the vires of a legislation is
challenged;
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(iv) An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of
the Constitution in an appropriate case though
ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided
by law;
(v) When a right is created by a statute, which
itself prescribes the remedy or procedure for
enforcing the right or liability, resort must be had
to that particular statutory remedy before invoking
the discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory
remedies is a rule of policy, convenience and
discretion;
(vi) In cases where there are disputed questions of
fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High
Court is objectively of the view that the nature of
the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be
interfered with."
The principle of alternate remedies and its
exceptions was also reiterated recently in the
decision in Assistant Commissioner of State Tax v.
M/s Commercial Steel Limited. In State of HP v.
Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499,
this Court has held that a writ petition is
maintainable before the High Court if the taxing
authorities have acted beyond the scope of their
jurisdiction. This Court observed:
"23. Where under a statute there is an allegation of
infringement of fundamental rights or when on the
undisputed facts the taxing authorities are shown to
have assumed jurisdiction which they do not
possess can be the grounds on which the writ
petitions can be entertained. But normally, the
High Court should not entertain writ petitions
unless it is shown that there is something more in a
case, something going to the root of the
jurisdiction of the officer, something which would
show that it would be a case of palpable injustice
to the writ petitioner to force him to adopt the
remedies provided by the statute. It was noted by
this Court in L. Hirday Narain v. ITO, AIR 1971
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SC 33 that if the High Court had entertained a
petition despite availability of alternative remedy
and heard the parties on merits it would be
ordinarily unjustifiable for the High Court to
dismiss the same on the ground of non-exhaustion
of statutory remedies; unless the High Court finds
that factual disputes are involved and it would not
be desirable to deal with them in a writ petition."
5. It is apparent that where a statutory remedy by
creation of a specific tribunal is provided and when there are
disputed questions of facts, the High Court can decline to
exercise it's jurisdiction in a writ petition. The Honourable
Supreme Court has ruled in Virudhunagar Hindu Nadargal
Dharma Paribalana Sabai Vs. Tuticorin Education Society, 2019
SCC Online SC 1292 (Civil Appeal No.7764/2019, decided on
30.10.2019) and Genpact India Private Limited Vs. Deputy
Commissioner of Income Tax and others, (2019) 419 ITR 440
that if there is a statutory remedy available, the High Court
should not entertain the petition filed directly by bypassing such
statutory remedy.
6. In view of the above, we are not inclined to entertain
this petition. This Writ Petition is disposed off.
7. We are relegating the petitioner to the statutory
remedy available in law and as such, the time spent by the
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petitioner in this Court from 14.06.2018 when the petition was
instituted till the passing of this order, shall stand excused if the
petitioner approaches the Tribunal on or before 31.12.2021.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
