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UTTARAKHAND HIGH COURT
Sudhanshu Dhulia, J.
Management of Committee —Petitioner
versus
State of Uttarakhand and Ors. —Respondents
Writ Petition (M/S) No.2585 of 2016
Decided on 30.3.2017
Counsel for the Parties:
For the Petitioner:Mr. T.A. Khan, Senior Advocate assisted by Mr. Aditya Kumar Araya, Advocate
For the Respondent: Ms. Prabha Naithani, Brief Holder
For the Respondent Nos.2 and 3:Mr. Dharmendra Barthwal, Advocate
For the Respondent Nos.5 and 6:Mr. J.C. Belwal, Advocate
IMPORTANT POINT
Alternative remedy – Cannot always be an equal efficacious remedy particularly when the challenge is as to the procedure itself.
Headnote:(a) Constitution of India – Article 226 – Maintainability – Alternative remedy – Cannot always be an equal efficacious remedy particularly when the challenge is as to the procedure itself – Secondly, petitioner’s application for interim relief already rejected – Further, petitioner’s special appeal was also closed – Writ petition cannot be dismissed at the threshold on the ground of alternative remedy. (Para 16, 17,18)
(b) Waqf Act, 1995 – Section 32(2)(j) r/w Rules – Wakf Board claiming to have permitted respondent 5 and 6 to continue in possession – On facts the same found to be a lease – Provisions of the Act and the Rules not followed – Not permissible. (Para 19)
(c) Constitution of India – Article 226 – The order impugned passed in violation of law and without jurisdiction – Petitioner praying “any relief which this Court deem fit” – Held, writ petition has not become infructuous. (Para 20)
Result: Writ petition allowed.
Sudhanshu Dhulia, J.—This writ petition has been filed by the Management of Committee of Waqf No. 664 “Waqf Haji Abdul Lateef”, Khatima, District Udham Singh Nagar through its President, namely, Mohd. Raza Khan. The petitioner has challenged the validity and the propriety of the order dated 11.08.2016 by which the Chief Executive Officer of Uttarakhand Waqf Board has granted permission to respondent Nos. 5 and 6 for raising construction on the first floor above the shop which is already in their tenancy. The shop is admittedly the property of the petitioner, which is a Waqf. The order seems to have been passed on the application moved by respondent Nos. 5 and 6 before the Uttarakhand Waqf Board for permission to raise construction on the first floor of the shop. This permission was granted to respondent Nos. 5 and 6 by the Chief Executive Officer of the Uttarakhand Waqf Board vide its order dated 11.08.2016. The said order states that since respondent Nos. 5 and 6 are already in possession of ground floor, they are granted permission to raise construction on the first floor of the property. It further says that after raising construction, its rent would be determined by the petitioner – Management Committee of Waqf and the construction would be completed within six months.
2. Learned Senior Counsel for the petitioner would first argue that what has effectively been done in the present case is not only that respondent Nos. 5 and 6 have been authorized to raise construction on the property of the Waqf, without there being any approval from the petitioner for the said construction. Moreover, effectively the constructed property is also leased out in favour of respondent Nos. 5 and 6, though for the sake of determination of its rent right has been given to the petitioner. This, according to the petitioner, is in violation of the law and the impugned orders are without jurisdiction.
3. The challenge of the petitioner to the said order is on various grounds. First and foremost, the learned Senior Counsel for the petitioner would argue that admittedly the property is under the Management of the Waqf – petitioner, and it is subjected to the provisions of the Waqf Act, 1995. Learned Senior Counsel for the petitioner relies upon Section 32(2)(j) of the Waqf Act, 1995 whereby one of the functions of the Board is to sanction lease of any immovable property of a Waqf, in accordance with the provisions of the Act and the rules made thereunder.
4. Section 32(2)(j) of the Waqf Act, 1995, which is relevant in the present case, reads as under:-
“32. Powers and function of the Board (1) …..
(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-
(a) …..
(b) …..
(c) …..
(d) …..
(e) …..
(f) …..
(g) …..
(h) …..
(i) …..
(j) to sanction lease of any immovable property of a waqf in accordance with the provisions of this Act and the rules made thereunder:
Provided that no such sanction shall be given unless a majority of the less than two-thirds of the members of the Board present cast their vote in favour of such transaction:
Provided further that where no such sanction is given by the Board, the reasons for doing so shall be recorded in writing.”
5. Learned Senior Counsel for the petitioner would then argue that there has been no sanction for the construction obtained by respondent Nos. 5 and 6. Proviso (j) to the Sub-Section (2) of Section 32 of the Waqf Board, 1995 clearly stipulates that before such a lease has to be given it must be sanctioned by majority of not less than two-third of the Board Members. This has not been done, as the Board at the relevant time was not functional. All the same it was under the control of District Magistrate, Dehradun, and therefore, at least an approval of District Magistrate ought to have been taken, which has admittedly not been done.
6. Learned Senior Counsel for the petitioner would also argue that under the powers vested u
