IMPORTANT POINT
The court established that the WAQF Board has the authority to take over the administration of a WAQF under Section 65(5) without issuing a separate notice if the parties were already notified about the proceedings.

JUDGMENT :

(Easwaran S., J.)

Ext.P6 order passed by the Kerala State WAQF Board is under challenge in this writ petition, though an alternative remedy is available under Section 83 of the WAQF Act, 1995 by preferring an appeal before the WAQF Tribunal. Primarily we are concerned with an issue as to whether we should entertain this writ petition despite the existence of an alternative remedy.

2. No doubt, the availability of alternative remedy is not a bar in entertaining the Writ Petition under Article 226 of the Constitution of India and it is only a self imposed restraint by the Court. This Court is however required to address this issue especially since, the Court, while admitting the Writ Petition on 6.3.2024 had specifically raised this question and ordered that “the question of maintainability of the Writ Petition will be decided with notice to the party respondents.”

3. Facts succinctly stated are as follows:

The petitioner is the Muthawalli of Abdul Latheef Haji Ismail Sait Dharmasthapanam, which is a WAQF, registered under the provisions of the WAQF Act. The 1st Muthawalli was Abdul Latheef Haji Ismail Sait itself and after his death, his son Muhammed Kasim Abdul Latheef Sait became the Muthawalli who executed a Will in the year 1954 and after his death, father of the petitioner Ismail Mohammed Kasim Sait became the Muthawalli.

4. The contesting respondents filed O.P. No.62 of 2013 before the WAQF Board seeking reliefs in terms of the provisions contained under Sections 32, 47, 69, 70 and 71 in the administration of the WAQF, to conduct an audit of the WAQF from 2000 onwards, to frame a scheme for WAQF to elect the committee for the management of the WAQF on the basis of the scheme so framed, to suspend the 1st respondent (petitioner herein) from the post of Muthawalli and to appoint an interim Muthawalli during the pendency of the petition.

5. The petitioner/1st respondent in OP No.62/2013 before the WAQF Board entered appearance and filed his objections. The WAQF Board, on 14.2.2024, passed Ext.P6 order invoking the powers under Section 65(5) of the WAQF Act, 1995. According to the petitioner, he was not afforded an opportunity of being heard as regards the invocation of the powers under Section 65(5) of the WAQF Act, 1995. Reference is also placed on the judgment of the Division Bench of this Court in O.P.(WAKF) No.26/2017 & WP(C) No.14020/2017 dated 29.6.2017. Therefore, according to the petitioner, the application being filed under Sections 32, 47, 69, 70 and 71 of the WAQF Act, there was no notice prior to the intention expressed by the Board to invoke the provisions of Section 65(5) of the WAQF Act and hence the Writ Petition is filed.

6. We have heard Sri. T.H Abdul Azeez, assisted by Sri. Shankar V., the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the 1st respondent, Sri. P.A. Abdul Jabbar, the learned counsel appearing for the 3rd respondent and Sri. Muhammed Shafi, the learned counsel appearing for respondents 4 and 5.

7. The learned counsel appearing for the petitioner placed reliance on the following judgments to contend that since there is violation of Principles of Natural Justice, the petitioner need not avail the alternate remedy under the provisions of the WAQF Act, 1995 and therefore the Writ Petition is perfectly maintainable.

1. Bombay Co.Ltd. v. State (Kerala) [1952 KHC 104],

2. Sangram Singh v. Election Tribunal Kotah [1955 KHC 374 (SC)],

3. Hari Vishnu Kamath Vs. Syed Ahamed [1955 SCR (1) 1104],

4. The State of Uttar Pradesh Vs. Mohammed Nooh [ 1958 SCR (1) 595],

5. Musali Guptan Vs. State of Kerala [1963 KHC 248 (Kerala)],

6. Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others [1998 KHC 1225],

7. Godrej Sara Lee Ltd. Vs. Excise and Taxation officer [2023 KHC 6093],

8. Central Council for Research Studies in Ayurvedic Sciences Vs. Bikartan Das [2023 KHC 6774 (SC)]

8. Further reliance was placed on the judgment of the Division Bench of