THE HIGH COURT CAN BE APPROACHED UNDER ARTICLE 226 OF THE CONSTITUTION IN CASES WHERE NO DISPUTE HAS BEEN RAISED IN CONNECTION WITH A WAKF OR WAKF PROPERTY.

The petitioners claim that they were appointed joint matwallis in respect of Ashraful Islam Wakf Estate (hereafter the said Wakf Estate) by the Board of Wakf (hereafter the ‘Board’) in the year 2000 for a period of five years; that, after expiry of the tenure of five years, they had approached the Board with an application for their further appointment; that, since such application was not considered, reminders were issued; and that despite the same, the Board is yet to take a decision on the petitioners’ claim for continuance as joint matwallis of the said Wakf Estate. It has also been claimed by the petitioners that they are still looking after the said Wakf Estate as matwallis and maintaining the same properly for the benefit of the persons interested in the wakf.

2. By presenting this writ petition, the petitioners seek an order on the Board to decide their claim for matwalliship.

3. A preliminary objection to the entertainability of the writ petition has been raised by Mr. Galib, learned advocate appearing for the Board. To support the objection, he has relied on a decision of the Supreme Court reported in (2010) 14 SCC 588 (Board of Wakf, West Bengal & Anr. Vs. Anis Fatma Begum & Anr.) and an unreported decision of a co-ordinate Bench of this Court dated 19th April, 2011 in W. P. No. 6923 (W) of 2011 (Musst. Hazera Khatoon & Anr. Vs. The State of West Bengal & Anr.).

4. In ‘Anis Fatma’ (supra), the Supreme Court had the occasion to observe that all matters pertaining to wakf or wakf property should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightway under Article 226 of the Constitution. It was also observed therein that the proviso to Section 83(9) of the Wakf Act postulates that a party who wishes to raise any dispute relating to wakf or wakf property should first approach the tribunal before approaching the High Court.

5. Relying on such decision, the co-ordinate Bench in ‘Musst. Hazera Khatoon’ (supra) opined that:

“It was clearly held by the Supreme Court in Anis Fatma that an aggrieved party can approach the Tribunal even if no order has been passed under the Act. Hence I am unable to accept the argument that since the Chief Executive Officer did not pass any order, the petitioners were not entitled to go to the Tribunal.

The remedy available under s.83 of the Wakf Act, 1995 is not an alternative to the art.226 remedy. It is just one other remedy falling within the genus other remedies, only a species whereof is an alternative remedy. Two remedies are alternatives to one another when the aggrieved person has a right to choose the one or the other.

As has been held by the Supreme Court the remedy under s.83 of the Wakf Act, 1995 is the only remedy of the aggrieved persons such as the petitioners. Against the order of the Tribunal an aggrieved person can approach the High Court only under s.83(9) of the Wakf Act, 1995. Hence there is absolutely no scope for approaching the High Court under art.226 at any stage.”

6. Mr. Hassan, learned advocate for the petitioners while countering the preliminary objection raised by Mr. Galib has relied on several unreported decisions of co-ordinate Benches, viz. (i) decision dated 18th October, 2012 passed in W. P. No. 775 (W) of 2011; (ii) decision dated 5th August, 2013 passed in W. P. 20929 (W) of 2013 (Ashoke Roy Vs. The State of West Bengal & Ors.); (iii) decision dated 20th January, 2014 passed in W. P. 652 (W) of 2014 (Md. Takrimul Haque Vs. State of West Bengal & Ors.); (iv) decision dated 23rd June, 2014 passed in W. P. 15473 (W) of 2014; (v) decision passed in W. P. 15473 (W) of 2014 passed on; W. P. 23952 (W) of 2014 (Amanul Haque Vs. The Board of Wakf of W.B. & Anr.); (vi) decision dated 21st July, 2015 passed in W. P. 33478 (W) of 2014 (Abdul Rafi Mondal & Ors. Vs. The Board of Waqf of West Bengal & Ors.) and (vii) decision dated 10th