The discretionary jurisdiction under Article 226 of the Constitution of India should be exercised judiciously and not entertained if alternative statutory remedies are available.

JUDGMENT

Anil K. Narendran, J.

The petitioners are the respondents in O.P.No.20 of 2024 (Ext.P3) on the file of the Kerala State Waqf Board, which is one filed by the 2nd respondent herein, invoking the provisions under Section 32 of the Waqf Act, 1995, seeking an order to set aside the order of expulsion from membership and for other consequential reliefs. In that original petition, the State Waqf Board granted Ext.P4 ad interim order. The petitioners are before this Court in this writ petition seeking a writ of certiorari to quash Ext.P4 ad interim order.

2. Heard the learned counsel for the petitioners and the learned Standing Counsel for the Kerala State Waqf Board for the 1st respondent.

3. The learned Standing Counsel for the Kerala State Waqf Board would submit that since Ext.P4 order of the State Waqf Board is only an ad interim order, the remedy open to the petitioners, who are the respondents in O.P.No.20 of 2024, is to file a counter affidavit in that original petition and seek modification or vacation of the ad interim order. They also have an option to invoke the statutory remedy provided under Section 83(2) of the Waqf Act, by filing an appeal before the Waqf Tribunal.

4. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603] the Apex Court held that non- entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226.

5. In Authorised Officer, State Bank of Travancore v. Mathew K.C. [(2018) 3 SCC 85] the Apex Court reiterated that the discretionary jurisdiction under Article 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed in Chaabil Das Agarwal [(2014) 1 SCC 603], i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

6. In Thansingh Nathmal [AIR 1964 SC 1419] a Constitution Bench of the Apex Court held that the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: