Point of Law : Occasion to consider the issue of jurisdiction under Article 226 of the Constitution of India viz a viz the availability of adequate statutory remedy.

ORDER :

JASPREET SINGH, J.

1. Heard Sri Arshad Ahsan Siddiqui, learned counsel for the appellant and Sri S.Q.H. Rizvi, learned Counsel for the respondents.

2. The instant appeal has been preferred against the judgment and order dated 23.02.2021 passed by the learned Single Judge in Writ Petition No. 5314 (MS) of 2021 (Mohd. Saghir Khan Vs. U.P. Sunni Central Board, Waqf and Others) whereby the writ petition was dismissed on the ground of availability of alternate statutory remedy.

3. The learned counsel for the appellant submits that the learned Single Judge has erred in dismissing the writ petition on the ground of availability of alternate remedy despite a specific ground having been raised that the order impugned in the writ petition was wholly without jurisdiction and such an order could be assailed in a writ petition in view of the decision of the Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1.

4. It has further been urged that the learned Single Judge has failed to notice that the order impugned in the writ petition was wholly without jurisdiction as it had been passed by the Civil Court by usurping the jurisdiction of a Waqf Tribunal and such an order was not liable to be sustained and was amenable to the writ of certiorari as held by the Apex Court in the case of Syed Yakub Vs. K.S. Radhakrishanan and Others reported in AIR 1964 SC 477.

5. Thus, it is urged that the learned Single Judge in the aforesaid backdrop ought not to have relegated the appellant to the remedy of filing a revision under the provisions of the Waqf Act as the order impugned was passed by the Civil Court which did not have jurisdiction to pass the said order, hence, the Special Appeal deserves to be allowed.

6. Per contra, the learned counsel for the respondents has urged that the instant Special Appeal is not maintainable in view of the fact that the order impugned emerges from proceedings of a Civil Court/Tribunal under the provisions of Waqf Act, hence, in light of a full Bench decision of this Court in the case of Sheet Gupta Vs. State of U.P. and Others reported in 2009 SCC Online All 1613 the appeal deserves to be dismissed.

7. Having heard the learned counsel for the parties and from the perusal of the material available on record, it appears that one Sri Shekh Mohd. Yakub challenged an order dated 18.07.1985 whereby the Waqf Board had appointed Sri Anwar Rashid Khan as Mutawalli of Waqf No. 4. Madarasa Rahmania, Raebareli. This challenge was made before the Civil Judge/the Waqf Tribunal, Raebareli and registered as Case No. 74 of 1985 (Shekh Mohd. Yakub Vs. U.P. Central Sunni Board, Waqf and Others).

8. The said case came to be decided ex-parte by means of judgment dated 22.08.1986 by the Civil Judge/Waqf Tribunal and the order dated 18.07.1985 by which Sri Anwar Rashid Khan was appointed as Mutawalli was set aside and it was further held that the property in question was not a waqf property but was a self-acquired property of Sheikh Mohd. Yakub.

9. The Waqf Board thereafter preferred Revision No. 179 of 1986 before the High Court, which was allowed by means of judgment dated 12.11.2007 and the matter was remanded to the Court concerned to decide the case afresh. The record further indicates that after remand, the matter was again considered by the Tribunal and by means of order dated 20.05.2014 it once again decreed the suit and the order dated 18.07.1985 was set aside.

10. Being aggrieved against the aforesaid order dated 20.05.2014, the appellant preferred a writ petition before the learned Single Judge which has been dismissed on the ground of availability of statutory remedy of Revision as provided under the Waqf Act by means of order dated 23.03.2021, which is under challenge in the instant appeal.

11. In order to ascertain whether the Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 is maintainable, it will be gainful to glance at the said