The court emphasized the importance of adhering to the principles of natural justice and the applicability of Section 83(2) of The Waqf Act, 1995 in determining the maintainability of the writ petition.

JUDGMENT

Moushumi Bhattacharya, J. - The petitioner has challenged a resolution of the Waqf Board dated 9.11.2021, confirmed on 29.12.2021 and seeks quashing of the same. The petitioner claims to be the erstwhile Mutawalli of the Waqf Estate. The petitioner and two other applicants being the respondent no. 3 and one Asraf Ali, sought for being appointed Mutawalli of the Waqf Estate. By the impugned resolution, the petitioner was removed from the post of Mutawalli and her claim for the said position was rejected on the ground of allegations made against the petitioner by one Azhar Sarkar and one Sabbir Ahmed.

2. The respondents before the Court are the Waqf Board, the respondent no. 3 who is the present Mutawalli and respondent no. 4, one Mobinul Haque who also claims to be affected by the Enquiry Report furnished to the Board before the impugned resolution.

3. The Board and the respondent no. 3 (the present Mutawalli) take a point of maintainability which is first being answered.

4. According to the answering respondents, the writ petition is not maintainable since the petitioner can avail of the efficacious alternative remedy of approaching the Tribunal as defined under section 3(q) of The Waqf Act, 1995. The second point raised is that the writ petition deserves to be dismissed since the petitioner had unsuccessfully claimed the same relief before a Co-ordinate Bench. Learned counsel appearing for the petitioner opposes the maintainability argument on the ground that there has been a breach of the principles of natural justice and hence the doors of the Writ Court are open to the petitioner.

5. With regard to the first limb of the maintainability issue, section 83 (1) of the Waqf Act, 1995, may be referred to which empowers the State Government to 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 under this Act. Sub-section (2) of section 83 provides that any Mutawalli, person interested in a waqf or any other person aggrieved by an order made under this Act or rules framed under the Act may apply within the specified time or where no such time is specified, within prescribed time to the Tribunal for the determination of any dispute, question or other matter relating to the waqf. Under section 3(q), 'Tribunal' means that which is constituted under section 83(1) having jurisdiction in relation to a particular area.

6. There is little doubt that the petitioner is aggrieved by orders of the Board passed under the 1995 Act by which the petitioner's claim for Mutawalli-ship was rejected. Hence, the case of the petitioner is squarely covered by section 83 (2) of the Act. The question however, is whether the alleged breach of principles of natural justice in arriving at the impugned orders would enable the petitioner to invoke the extraordinary powers of the High Court under Article 226 of the Constitution of India.

7. The resolutions dated 28.10.2021 and 9.11.2021 were taken in meetings of the Waqf Board which the petitioner attended. The Minutes reflect that the petitioner was also represented by her lawyer on the first day; the petitioner personally attended the second day of the Meeting. Further, the petitioner was informed that an enquiry was conducted by one Jb. Abul Hasnat, OSD, Board of Auqaf, W.B. with regard to illegal construction in the waqf premises. The Minutes also refer to a second enquiry conducted by the OSD with regard to the present status of the waqf property. The Minutes record that an extended deliberation followed after reference to the enquiries and the parties were directed to furnish their affidavits before the Judicial Magistrate within 15 days from the date of receipt of the resolution showing their respective claims in the waqf estate.

8. The enquiries conducted by the OSD were again referred to along with the fact that the enquiries reflected illegal construction in the waqf premises. The Minutes also record that