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IN THE HIGH COURT AT CALCUTTA
Mir Dara Sheko, J.
Mrs. Farkhondeh Khanum - Petitioner
Vs.
The Board of Wakfs, West Bengal & Anr. - Opposite Parties
C.O. No. 888 of 2009
Decided On : 04-11-2016
The Calcutta High Court, in the case of Mir Dara Sheko v. Board of Wakfs, West Bengal, discussed the maintainability of an application under Article 227 of the Constitution of India challenging an order passed by the Board of Wakfs under Section 64(1) (j) and (k) of the Wakf Act, 1995.
Fact of the Case:
The petitioner, a Mutawalli of a Wakf Estate, challenged the order of the Board of Wakfs removing her and her mother and sister from the post of Mutawalliship under Section 64(1) (j) and (k) of the Wakf Act, 1995. The petitioner argued that the order was not passed by a Court or Tribunal and hence not amenable to Article 227. The petitioner also argued that the impugned order was passed without affording her an opportunity of hearing and without considering her reply to the show cause notice.
Finding of the Court:
The Court held that the Board of Wakfs, in passing the impugned order, was not acting as a Court or Tribunal and hence the application under Article 227 was not maintainable. The Court further held that the petitioner had an efficacious alternative remedy under Section 83(2) of the Wakf Act, 1995, by way of an appeal to the Tribunal, and hence the application under Article 227 was not maintainable on that ground as well.
Issues: 1. Whether the order passed by the Board of Wakfs under Section 64(1) (j) and (k) of the Wakf Act, 1995 was an order of a Court or Tribunal and hence amenable to Article 227 of the Constitution of India? 2. Whether the petitioner had an efficacious alternative remedy under Section 83(2) of the Wakf Act, 1995, by way of an appeal to the Tribunal, and hence the application under Article 227 was not maintainable?
Ratio Decidendi: 1. The Court held that the Board of Wakfs, in passing the impugned order, was not acting as a Court or Tribunal. The Court relied on the judgment of the Supreme Court in Jaswant Sugar Mills Ltd. v. Lakshmi Chand, wherein the Supreme Court held that a body or authority is a Tribunal only if it is constituted by the State and invested with judicial power. The Court found that the Board of Wakfs was not constituted by the State and was not invested with judicial power, and hence it was not a Tribunal. 2. The Court held that the petitioner had an efficacious alternative remedy under Section 83(2) of the Wakf Act, 1995, by way of an appeal to the Tribunal. The Court relied on the judgment of the Supreme Court in Board of Wakf, West Bengal v. Anis Fatma, wherein the Supreme Court held that an application under Article 227 is not maintainable if there is an efficacious alternative remedy available under a statute.
Final Decision: The Court dismissed the application under Article 227 of the Constitution of India.
Mir Dara Sheko, J.
1. The application under Article 227 of the Constitution of India is filed by the petitioner assailing the order of removal of the petitioner and her mother Narges Khanum and her sister Mrs. Rokhsandeh Khanum from the post of Mutawalliship of the Wakf Estate namely “Mirza Ali Akbar Al-Al-Aulad Wakf” under Clauses (j) and (k) of Section 64(1) of the Wakf Act, 1955 pursuant to the resolution dated 16.10.2008 adopted by the Board of Wakfs.
2. Background of the matter, is that the father of the petitioner created the wakf specifying as to who would be the Mutawallis and how or by whom and in what mode such wakf property would have to be managed in taking action for its development.
3. One Ram Bilash Agarwal was chosen by the petitioner to develop the wakf property with approval of the Board of Wakf, but it had to be cancelled. For the 2nd time another Kamal Singh Baid was chosen for its developing under approval of the Board of wakf but the same also could not be materialised since Kamal Singh Baid had no promoter licence. Therefore ultimately agreement between the petitioner and Kamal Singh Baid was terminated. Kamal Singh Baid thereafter attempted on and again at first in City Civil Court, then in the Civil Court at Sealdah, and lastly, in the High Court, to get the said agreement resumed, but could not succeed.
4. Though said Kamal Singh Baid became unsuccessful at his end to resume the agreement dated 05.12.2013 the Board of Wakf issued notice to the petitioner on 14.09.2007 to consider the said agreement. The petitioner, in her turn during hearing before the Board of Wakf questioned its jurisdiction to interfere with the affairs between the petitioner and Kamal Singh Baid, where she noticed the act of one of the Board members Mr. Ali Abbas Shirazi to deal with dual role with biasness. The petitioner alleged that during continuation of hearing before the Board of Wakf Mr. Shirazi once came down from the presiding chair of the Board of Wakf, and made submissions before the other Board members as the alleged constituted Attorney of Petitioner’s mother Narges Khanum and sister Rokshandeh Khanum, and then again took seat to preside over the hearing by the Board.
5. Completing hearing in this process notice dated 22.11.2007 was issued asking the petitioner to show cause as to why the Managing Mutawalli as well as Joint Mutawallis would not be removed, against which reply was submitted by the petitioner before the Chief Executive Officer, Board of Wakf on 22.01.2008.
6. Enquiry was held at the office of Board of Wakf upon notice to the petitioner who was confronted with some letters, purported to have written by her mother, copies of which were not supplied to the petitioner. The petitioner contended that those letters were procured at the behest of aforesaid Mr. Abbas Ali Shirazi on misrepresentation upon the petitioner’s mother and sister.
7. Hearing of the matter before the Wakf Board was fixed on 29.08.2008. On that day the hearing was adjourned on prayer of the petitioner with direction to hand over copies of unsupplied documents immediately to the petitioner and next date of hearing was fixed on 16.10.2008. Notice of such date of hearing was accordingly was served upon the petitioner on 29.9.2008. On the following day i.e. on 30.9.2008, the petitioner submitted an application to shift the date of such hearing till November 02, 2008, since her Advocate would not be available due to closure of High Court on account of puja vacation commencing from October 02, 2008. Said prayer of adjournment was rejected on 16.10.2008 and the Board of Wakf passed the resolution on that day which was confirmed in the next Board meeting dated 26.11.2008 with some rectification and amendment by which the petitioner being managing Mutawalli along with mother and sister were ordered to be removed from the her post of Mutawalliship under Section 64(1) Clauses (h), (i), (j) and (k) and the Wakf estate under reference was assumed u
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