Orissa High Court

Rabindranath Kar And Others vs Sayed Mansur Saheb Peer And Others on 1 September, 2025

Author: B.P. Routray

Bench: B.P. Routray, Chittaranjan Dash

Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 01-Sep-2025 14:06:32

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P.(C) No.9790 of 2015 and W.P.(C) No.4447 of 2015
                         (An application under Articles 226 and 227 of the Constitution of India)

                         In W.P.(C) No.9790 of 2015

                          Rabindranath Kar and others                                 ....             Petitioners

                                                                           -versus-
                          Sayed Mansur Saheb Peer and others
                                                                                      ....     Opposite Parties
                         Advocate(s) appeared in this case: -

                                         For Petitioners                : Mr.R.K. Mohanty, Sr.Advocate
                                                                          Ms.S.Mohanty, Advocate

                                         For Opp. Parties               : Mr.T.K.Dash, Addl. Govt. Advocate
                                                                          Mr.S.A.Nayeem, Advocate
                                                                                       (for O.P.No.1)
                                                                          Mr.KMH Niamati, Advocate
                                                                                        (for O.P.No.4)

                         In W.P.(C) No.4447 of 2015

                          Srinibash Pati and another                                  ....             Petitioners

                                                                           -versus-
                          Sayed Mansur Saheb Peer and others                          ....     Opposite Parties
                         Advocate(s) appeared in this case: -

                                         For Petitioners                : Mr. S.D.Das, Sr.Advocate

                                         For Opp.Parties                : Mr.T.K.Dash, Addl. Govt. Advocate
                                                                          Mr.S.A.Nayeem, Advocate
                                                                                       (for O.P.No.1)
                                                                          Mr.KMH Niamati, Advocate
                                                                                       (for O.P.No.4)


                         W.P.(C) No.9790 of 2015 and W.P.(C) No.4447 of 2015                            Page 1 of 12
 Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 01-Sep-2025 14:06:32


                                             CORAM: JUSTICE B.P. ROUTRAY
                                                    JUSTICE CHITTARANJAN DASH

                                                                    JUDGMENT

st 1 September,2025 B.P. Routray, J.

1. Both the writ petitions arise out of common judgment dated 3rd

November 2014 passed by the Presiding Officer, Waqf Tribunal,

Odisha, Cuttack in W.T.(O)/O.A.-08 of 2014. The said judgment is

challenged by respective Petitioners in both the writ petitions.

2. The facts of the case in brief are that Sayed Mansur Saheb Peer,

Idgha and Grave-yard Bije Mustafapur managed by Mansuria, filed the

suit as per Section 7 of the Waqf Act praying for declaration and

consequential reliefs in respect of the suit land appertaining to Major

Settlement Khata No.613 and 614 corresponding to Sabik Khata

No.69, 70 and 71 of Mouza-Mustafapur in the district of Bhadrak.

The plaintiff's case is that local Muslims are using the entire suit

land as Peerstan, Kabarstan and Idgha and the same was notified as

Waqf property vide Gazette Notification dated 19th May 1978. But,

during Major Settlement operation, the same was wrongly recorded

under Sarbasadharan khata, which came to knowledge of the plaintiff

on 24th February 2014 and as such, he filed the suit. Learned Waqf

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32

Tribunal upon adjudication allowed the reliefs prayed for by the

plaintiff declaring his right title interest over the suit land holding the

same as Waqf property. The Tribunal further directed to correct and

prepare a separate ROR in favour of the plaintiff with such declaration

prayed for.

3. The Petitioners as general public of the village have challenged

the judgment by claiming their communal interest over suit property.

According to the Petitioners, the direction of the Tribunal to record the

land in the name of the plaintiff with such declaration in his favour is

incorrect as the same is communal land of local villagers. They further

contend that the plaintiff obtained impugned judgement by suppressing

material facts.

4. Preliminary objection is raised by present Opposite Party No.1

(plaintiff) as well as the Waqf Board regarding maintainability of the

writ petition in the present form. It is submitted by the Opposite Parties

that as per sub-Section 9 of Section 83 of the Waqf Act, 1995 only

revision can be filed against the judgment of the Waqf Tribunal and

therefore present writ petitions are not maintainable.

5. It is answered by the Petitioners that the question of

maintainability raised by the Opposite Parties is unsustainable in view

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32

of the powers of this Court under Article 226 & 227 of the Constitution

of India. According to the present Petitioners, since sub-section 9 of

Section 83 provides for remedy to the High Court against the decision

of the Waqf Tribunal, therefore, the present writ petitions filed

invoking jurisdiction of this Court under Article 227 of the

Constitution of India cannot be said as not maintainable. In this regard,

the decision in Kiran Devi vs. The Bihar State Sunni Wakf Board and

others, (2021) 15 SCC 15, is relied on.

6. In the afore-cited case before the Hon'ble Supreme Court, a writ

petition was filed challenging the decision of the Waqf Tribunal. In the

writ petition before the High Court the judgment of the Tribunal was

set aside. Against the same, the parties went to the Supreme Court.

Before the Supreme Court it was, inter alia, challenged that order of

Waqf Tribunal cannot be challenged by way of writ petition before the

High Court under Article 226 & 227 of the Constitution of India as

only a revision in terms of the proviso to sub-section 9 of Section 83 of

the Waqf Act could be preferred. The Hon'ble Supreme Court while

answering such ground of challenge have observed as follows:

"17. To appreciate the second argument, the relevant provisions of Section 83 and sub-section (9) of Section 83 of the Act are extracted below:

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 "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 wakf or wakf 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.

xx xx xx (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."

xx xx xx

20. A perusal of the proviso to sub-section (9) of Section 83 of the Act shows that it confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination. In fact, the statutory provision is acceptance of the principle

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L&S) 577]. The relevant extract reads thus: (SCC pp. 307-

308, paras 90-91)

"90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. ... On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

91. ... We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of the Tribunals under Article 227 of the Constitution. In R.K. Jain case [R.K.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 Jain v. Union of India, (1993) 4 SCC 119: 1993 SCC (L&S) 1128], after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunal on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued. It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably. Having regard to both the aforestated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution, will be subject to the High Court's writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls."

xx xx xx

22. Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub- section (9) of Section 83 of the Act, the High Court

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court.

23. We find merit in the argument raised by Mr Sanyal that the nomenclature of the title of the petition filed before the High Court is immaterial. In Municipal Corpn. of Ahmedabad v. Ben Hiraben Manilal [Municipal Corpn. of Ahmedabad v. Ben Hiraben Manilal, (1983) 2 SCC 422], this Court held that wrong reference to the power under which an action was taken by the Government would not per se vitiate the action, if the same could be justified under some other power whereby the Government could lawfully do that act. The Court held as under: (SCC p. 427, para 5)

"5. ... It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provisions was mentioned. (See in this connection the observations in Pitamber Vajirshet v. Dhondu Navlapa [Pitamber Vajirshet v. Dhondu Navlapa, 1887 SCC OnLine Bom 2: ILR (1888) 12 Bom 486 at p.

489]. See in this connection also the observations of this Court in L. Hazari Mal

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 Kuthiala v. CIT [L. Hazari Mal Kuthiala v. CIT, (1961) 11 SCR 892: AIR 1961 SC 200: (1961) 41 ITR 12 at p. 16].) This point has again been reiterated by this Court in Hukumchand Mills Ltd. v. State of M.P. [Hukumchand Mills Ltd. v. State of M.P., (1964) 6 SCR 857 : AIR 1964 SC 1329 : (1964) 52 ITR 583] wherein it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. (See also the observations of the Supreme Court in Nani Gopal Biswas v. Municipality of Howrah [Nani Gopal Biswas v. Municipality of Howrah, 1958 SCR 774 at p. 779 : AIR 1958 SC 141] .)"

24. Later, in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749: 1998 SCC (Cri) 1400], this Court held that nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses. If the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. This Court held as under: (SCC pp. 759-60, para 26)

"26. Nomenclature under which petition is filed is not quite relevant and that does not debar the

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32 court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."

25. Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.

7. As seen from the facts of the present case, the issues involved

with regard to challenge of maintainability of the writ petition is found

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32

squarely covered by the principles rendered by the Supreme Court in

Kiran Devi (supra) case. So, the present writ petitions cannot be said as

not maintainable, as the nomenclature of the proceeding would be

inconsequential and immaterial. But it is important here to re-produce

the Rule 5 of Chapter-XV, Part-II of the Orissa High Court Rules, Vol-

1, 1948. The same reads as under:

"Every application shall be registered as Writ Petition (Civil) "W.P.(C)" except the application for Habeas Corpus registered as "WPCRL". Applications under Article 227 of the Constitution arising out of a Suit or a First Appeal shall be registered as Civil Miscellaneous Petition "C.M.P." and arising from any criminal proceeding shall be registered as Criminal Miscellaneous Petition "Crl.M.P".

8. The question, therefore, is whether the writ petitions though held

maintainable, would it be appropriate to be heard by a Division Bench?

The applications under Article 227 of the Constitution of India arising

out of a Suit or a First Appeal and registered as CMP are required to be

heard before Single Bench as per Rule 1(a) and 1(b) of Chapter-XV of

the Orissa High Court Rules, Vol-1, 1948. Thus, as a matter of

procedure, while holding that challenge by the Petitioners before this

Court in these writ petitions as maintainable, we further direct the

Registry to register both the writ petitions with nomenclature of

"CMP" and place before the appropriate assigned Bench.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 01-Sep-2025 14:06:32