Back
2020 Supreme(Guj) 677
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, ASHUTOSH J. SHASTRI, JJ.
Akhalak Ahmed Nizamali Bukhari – Appellant
Versus
Gujarat State Waqf Board – Respondent
Letters Patent Appeal No. 171 of 2020, Special Civil Application No. 550 of 2020, Civil Application (For Stay) No. 1 of 2020
Decided On : 07-09-2020
Advocate Appeared:
For the Appellants : Mr. M.I. Hava, Mr. Moiz K. Rafique.
For the Respondents: Mr. Manish Shah, Mr. Shalin Mehta, Mr. M.I. Merchant, Mr. Hemang Shah.
IMPORTANT POINT
Writ petition under Article 226 of the Constitution even though there being a statutory remedy available, would not come to the aid of the appellants inasmuch as there are enough facts which are not admitted rather disputed which need to be examined by the statutory authority. The scope of judicial review under Article 226 of the Constitution is too limited and may also not be in the best interest of the appellants as also the other parties.
Headnote:
Constitution of India - Article 226/227 - Wakf Act, 1995 - Section 83 ,63 ,32, 37 ,15 ,42 , 43 – Appellant - Letters Patent – Wakf pr- when there is a vacancy in the office of mutawalli in the following fashion “when there is a vacancy in the office of the mutawalli of a wakf applies to both types of situations viz. there being no one to be appointed under the terms of the deed of the wakf and where the right of any person to act as mutawalli is disputed.” The word “or” appears to have escaped and in place the conjunction ‘and’ is used which is not found in the statute meaning thereby that the High Court of Kerala has proceeded to relate the two contingencies with the vacancy in the office of the mutawalli independent of each other. As explained hereinabove, the use of word ‘or’ under Section 63 of the Act is suggesting that the two contingencies are independent, first contingency depending upon the vacancy in the office of the mutawalli whereas the second contingency is only where there is a dispute with regard to the right of any person to act as a mutawalli Property – Availability of alternate remedy.
Facts of the case:
Appeal under Clause 15 of Letters Patent Act has been preferred by original writ petitioners assailing correctness of judgment and order passed by learned Single Judge in Special Civil Application, whereby writ petition has been dismissed on ground of alternative remedy available to the writ petitioner-appellant - Present appeal is purely legal and may not require any detailed narration of facts - Even otherwise, facts giving rise to writ petition as also appeal have been elaborately recorded by learned Single Judge and same have not been disputed by learned counsel for parties - As such, we are not repeating same in detail, however necessary reference to relevant facts have been made at appropriate places.
Finding of the court:
appointment, removal of Mutawalli, addition and removal of Mutawalli, change of Mutawalli, power of Wakf Board and all other aspects relating thereto and for those reasons also Court do not find any merit in present appeal - Court may also record here that have also examined judgments relied upon by learned counsel for appellants - None of judgments relied upon by learned counsel for appellants have any application to facts of present case and are clearly distinguishable - These judgments do not extend any benefit to appellants - They are discussed hereinafter in brief.
Result: Appeal dismissed.
JUDGMENT :
VIKRAM NATH, J.
1. This Letters Patent Appeal under Clause 15 of the Letters Patent Act has been preferred by the original writ petitioners assailing the correctness of the judgment and order dated 13.02.2020 passed by the learned Single Judge in Special Civil Application No. 550 of 2020, whereby the writ petition has been dismissed on the ground of alternative remedy available to the writ petitioner-appellant under Section 83 of the Wakf Act, 1995 (hereinafter referred to as “the 1995 Act”).
2. We have heard Shri M.I. Hava, learned counsel appearing for Shri Moiz Rafique, learned counsel for the appellants and Shri Shalin Mehta, learned Senior Advocate along with Shri M.I. Merchant and Shri Hemang Shah, learned counsels for respondent No. 2.
3. The issue arising in the present appeal is purely legal and may not require any detailed narration of facts. Even otherwise, the facts giving rise to the writ petition as also the appeal have been elaborately recorded by the learned Single Judge and the same have not been disputed by the learned counsel for the parties. As such, we are not repeating the same in detail, however necessary reference to relevant facts have been made at appropriate places.
4. The present appellants preferred Special Civil Application No. 550 of 2020 praying for quashing of the order dated 21.11.2019 issued by the Chief Executive Officer of the Gujarat State Wakf Board and the Circular dated 21.09.2019 issued by the Wakf Board, whereby it was ordered that respondent Nos. 2, 3 and 4 to the writ petition and also to the present appeal be appointed as trustees of the trust in question.
5. The order further mentions that any party aggrieved by the said order may approach the Tribunal under Section 83 of the 1995 Act. Before the learned Single Judge, a preliminary objection was raised with regard to the writ petitioners’ having a statutory remedy of filing an appeal under Section 83 of the 1995 Act. According to the learned counsel for the respondents, the order dated 21.11.2019 would be an order passed under Section 63 of the Act and as such the same could be challenged before the Tribunal under Section 83(2) of the 1995 Act. The learned Single Judge dealt with this aspect of the matter in great detail and also considered the relevant case-laws on the point as also the scope of Section 63 of the 1995 Act and was of the firm view that the writ petitioner must avail the alternative remedy rather than approaching the High Court by way of a writ petition under Article 226/227 of the Constitution. In addition, the learned Single Judge also took into consideration the fact that the same order of the Wakf Board has already been challenged before the Wakf Tribunal by different parties by filing separate appeals which are still pending consideration before the Tribunal. It was also considered by the learned Single Judge that the parties appealing before the Wakf Tribunal when failed to succeed in getting an interim order, the others have approached this Court under Article 226/227 of the Constitution. The entire exercise by the writ petitioners as also the pro forma respondents was a collusive exercise. For all the reasons, the learned Single Judge dismissed the writ petition. The findings recorded by the learned Single Judge are contained in paragraphs 12, 13 and 14 of the judgment which are reproduced below:
“12. The Court is in respectful disagreement with the aforesaid proposition as the High Court of Kerala has considered the expression that when there is a vacancy in the office of mutawalli in the following fashion “when there is a vacancy in the office of the mutawalli of a wakf applies to both types of situations viz. there being no one to be appointed under the terms of the deed of the wakf and where the right of any person to act as mutawalli is disputed.” The word “or” appears to have escaped and in place the conjunction ‘and’ is used which is not found in the statute meaning thereby that the High Court of
