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2024 Supreme(Online)(KER) 19514
HIGH COURT OF KERALA
AMIT RAWAL, Easwaran S., JJ
RAJA ALIAS MOHAMMED ALI ISMAIL SAIT – Appellant
Versus
THE KERALA STATE WAKF BOARD – Respondent
WP(C) 8550/2024
The court confirmed that a single notice under the main application satisfies natural justice requirements, and a separate notice under Section 65(5) is not mandatory if principles of natural justice were observed.
Headnote:
WAQF - Writ Jurisdiction - WAQF Act, 1995 - Sections 32, 47, 65(5), 69, 70, 71, 83 - The court interpreted the existence of alternative remedies and the necessity of prior notice under Section 65(5) of the WAQF Act, concluding that due process was observed and a separate notice was not required.
Fact of the Case:
The petitioner, a Muthawalli of a WAQF, challenges an order by the WAQF Board regarding his removal without being afforded an opportunity to be heard, despite an alternative remedy being available under the WAQF Act.
Issues: Whether the Writ Petition is maintainable despite an alternative remedy under the WAQF Act and whether prior notice was required under Section 65(5) before invoking powers to remove the Muthawalli.
Ratio Decidendi: The court held that the existence of an alternative remedy does not bar the writ petition but must establish exceptional circumstances for intervention. Notice issued under the main petition sufficed in the circumstances.
Final Decision: The Writ Petition is dismissed.
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 jud
