OD-1 ORDER SHEET IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE WPO/259/2024 MEHBOOB ALAM VS STATE OF WEST BENGAL AND ORS.

BEFORE:

The Hon’ble JUSTICE SOUMEN SEN AND The Hon’ble JUSTICE SMITA DAS DE Date : 25th April, 2025.

Appearance:

Sk. Md. Galib, Adv.

Mr. Abu Siddique Mallik, Adv.

...for the Board of Waqf, West Bengal (respondent nos.2 and 3).

1. The following question has been referred to a larger Bench presided over by one of us (Soumen Sen, J.) for answer.

2. The following question is as under:

“In the event a designated Tribunal under a particular statute is not functioning, whether the alternative remedy of going before such Tribunal provided in such statute operates as an absolute bar to the Writ Court invoking its powers under Article 226 of the Constitution of India.

3. The reference was made in view of an order passed by a learned Single Judge in W.P. No.6923(W) of 2011 (Musst. Hazera Khatoon & Anr. – vs.- The State of West Bengal & Anr.) decided on 19th April, 2011. Both the matters are arising out of the interpretation of Section 83 of the Waqf Act, 1995. In Musst. Hazera Khatoon & Anr. (supra), the writ petitioner approached the learned Single Judge in the writ jurisdiction, the eviction on the part of the Chief Executive Officer to record the name of the writ petitioner as joint mutawalli of the Golam Rasul Waqf Estate and the subsequent representation dated 10th December, 2010 to the Chief Executive Officer to exclude the persons whose names were mentioned in the earlier representations from the Committee of Management of the Waqf and to appoint the writ petitioner no.1 as the permanent mutawalli of the Waqf was kept pending and no decision was taken by the authorities concerned. On such grievances, the writ petition was filed with a prayer for issuance a writ of and/or writs in the nature of mandamus directing the concerned respondent authorities to make necessary changes in the Committee of Management. On such conspectus of fact, the learned Single Judge was of the view that Section 83 of the Waqf Act, 1995 provides a complete efficacious remedy as has been held by the Supreme Court that the remedy under Section 83 of the Waqf Act, 1995 is the only remedy of the aggrieved persons such as the petitioners. Moreover, against the order of the Tribunal, an aggrieved person can approach the High Court only under Section 83(9) of the Waqf Act, 1995. In view thereof, there is no scope for approaching the High Court under Article 226 of the Constitution of India at any stage.

4. In the matter under reference, it appears that the petitioner is a member of the mutawalli Committee in respect of a particular Waqf estate. Even after the Waqf estate was registered duly, an apprehension came in the mind of the Committee that the Chairperson of the Waqf Board with certain hooligans in the locality would have an influence in the functioning of the Waqf estate and threats have been issued by such local hooligans to the Committee members. A representation was made on 3rd November, 2023. True to the apprehension of the petitioner on 23rd November, 2023, the Chairperson of the Board of Waqf, West Bengal suo motu took up the matter of modification/recall of the Board’s resolution dated 17th July, 2023 regarding the formation of the Committee of mutawalli as per Waqf deed in respect of Sarbat Ali Mohammad Waqf estate. By virtue of the said order, the Chairperson, it is argued, unilaterally suspended the registration of the present Waqf estate as a Waqf property.

5. When this matter was being heard at the threshold, the learned Counsel appearing for the Waqf Board raised objection with regard to the maintainability of the writ petition in view of specific alternative remedy available under Section 83 of the Waqf Act, 1995. Moreover, it was argued that the entire Waqf Board and not the Chairperson alone had passed the impugned order. It appears that an unreported judgment of the Hon’ble Supreme Court in the matter