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2018 Supreme(Cal) 312
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Jyotirmay Bhattacharya, Abhijit Gangopadhyay, JJ.
The Board of Auqaf, West Bengal – Appellant
Versus
Golam Mustapha and Another – Respondents
MAT No. 901 of 2016 with CAN No. 8992 of 2016
Decided On : 15-06-2018
For the Appellants : Mr. Sk. Md. Galib, Mr. Abu Siddique Mallick, Mr. Akbar Ali.
For the Respondents: Mr. Partha Pratim Roy, Mr. S. Sanyal.
The Writ Court's jurisdiction to entertain a writ petition and its supervisory jurisdiction over the Courts and Tribunals subordinate to it.
Headnote:
Mandamus Appeal - Appointment of Joint Mutawallis - Wakf Act, 1995, Sections 6, 7, 32(3), 33(4), 38(7), 40(2), 40(4), 51(5), 52(4), 64(4), 67(4), 67(6), 69(3), 73(3), 83(2), 85, 94(1) - The court discussed the binding effect of the observations of the Hon’ble Supreme Court in Anis Fatma’s case, the jurisdiction of the Writ Court to entertain the writ petition, and the supervisory jurisdiction of the High Court over the Courts and Tribunals subordinate to it. The court concluded that the Writ Court did not commit any illegality either by entertaining such writ petition or by passing direction upon the Wakf Board for early disposal of the long pending application filed by the writ petitioners before the Wakf Board.
Fact of the Case:
The writ petitioners sought appointment as Joint Mutawallis over a Wakf Estate, which was pending before the Wakf Board for a considerable time. The Writ Court passed a direction upon the Wakf Board for early disposal of the application, which was challenged in the Mandamus Appeal.
Finding of the Court:
The court found that the Writ Court did not commit any illegality either by entertaining the writ petition or by passing direction upon the Wakf Board for early disposal of the long pending application filed by the writ petitioners before the Wakf Board.
Issues: The issues involved the maintainability of the writ petition before the High Court, the binding effect of the observations of the Hon’ble Supreme Court in Anis Fatma’s case, and the supervisory jurisdiction of the High Court over the Courts and Tribunals subordinate to it.
Ratio Decidendi: The Writ Court did not commit any illegality either by entertaining the writ petition or by passing direction upon the Wakf Board for early disposal of the long pending application filed by the writ petitioners before the Wakf Board.
Final Decision: The appeal was dismissed, and the application was disposed of with no order as to costs.
Jyotirmay Bhattacharya, J.
1. This Mandamus Appeal is directed against the judgment and/or order passed by the learned Single Judge of this Court on 22nd December, 2015 in a writ petition being W.P. No. 29863 (W) of 2015 filed by the writ petitioners/respondents herein.
2. By the impugned order the writ petition was disposed of with a direction upon the Board of Wakf (appellant) to consider the claim of the writ petitioners for appointment as Joint Mutawallis in accordance with law, as early as possible but not later than 8 (eight) weeks from the date of receipt of the copy of the said order. Such direction was passed by overruling the objection raised by the counsel appearing for the Board of Wakf, the appellant herein, regarding maintainability of such writ petition before the High Court. The legality and/or propriety of the said decision of the learned Single Judge of this Court are under challenge in this mandamus appeal.
3. For proper appreciation of the merit of the appeal, let us now give the facts in brief leading to filing of the writ petition. The writ petitioners’ claim that they were appointed as Joint Mutawallis in respect of Ashraful Islam Wakf Estate (hereafter described as the “said Wakf Estate”) by the Board of Wakf (hereafter described as “the Board”) in the year 2000, for a period of five years. After expiry of the tenure of five years they had approached the Board with an application for their further appointment. Since the said application was not considered for long time, reminders were issued. Still the Board did not take any decision on the writ petitioners’ claim for their continuance as Joint Mutawallis of the Wakf Estate. It was claimed by the writ petitioners that they were still looking after the said Wakf Estate as Mutawallis and maintaining the same properly for the benefit of the persons interested in the Wakf. Under such circumstances, the writ petitioners filed the said writ petition seeking an order on the Board to decide their claim for Mutawallis hip. The said writ petition was disposed of in the manner as aforesaid. The legality of the impugned decision is challenged by the appellant practically on two-fold grounds.
4. Mr. Galib, learned advocate appearing for the appellant, submitted by pressing strong reliance on the decision of the Hon’ble Supreme Court reported in Board of Wakf, West Bengal and Another vs. Anish Fatma Begum and Another, (2010) 14 SCC 588 and an unreported decision of a Co-ordinate Bench of this of Court dated 19th April, 2011 in W.P. No. 6923 (W) of 2011, Musst. Hazera Khtoon and Another vs. State of West Bengal and Another, that the learned Writ Court was not justified in overruling his objection regarding maintainability of the writ petition by holding that the observation of the Hon’ble Supreme Court in Anis Fatma (supra) that High Court cannot be straightway approached under Article 226 of the Constitution loses the precedential value, as such observation which was made by the Hon’ble Supreme Court, was in the nature of obiter dictum. The learned Writ Court held that the observation made by the Hon’ble Supreme Court to the effect that High Court cannot be straightway approached under Article 226 of the Constitution, having been made without any argument advanced before the Court on such issue, cannot be treated to be a binding precedent. To support such conclusion, the Writ Court placed reliance upon the decision of the Hon’ble Supreme Court reported in M/s. Goodyear India Ltd. vs. State of Haryana, AIR 1990 SC 781 where Hon’ble Supreme Court had the occasion to observe that a decision on a question which has not been argued cannot be treated as a precedent.
5. Mr. Galib, learned Counsel argued that even if the decision of the Hon’ble Supreme Court in Anis Fatma - that no one can approach the Writ Court straightway, is obiter dicta, the High Court cannot get over such decision of the Supreme Court which was passed after due consideration of the relevant provis
