2018 (4) TMI 1982 - HC - Indian Laws

Maintainability of the writ petition preferred under Article 226 of the Constitution of India against the judgment of the Tribunal - registration of plot including mosque as waqf property - in the registration certificate the nature of the mosque declared as Ahl-e-Hadees - HELD THAT - In Sadhana Lodh 2003 (1) TMI 701 - SUPREME COURT , the Supreme Court has held that where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for, the remedy against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision is expressly barred, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. In view of the binding precedent of the Supreme Court in Sadhana Lodh, when a statutory right to file a revision has been given to the person aggrieved under the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995, it would not be open to this Court to entertain a petition under Article 226 or 227 of the Constitution of India. Merely because petitions under Articles 226/227 of the Constitution of India have been entertained in past, such petition cannot be held to be maintainable in law - there are no merit in the submissions of the learned counsel for the petitioner and the Board that since such petitions are being entertained before this Court and several decisions have been given in past which have attained finality, a petition under Article 226/227 of the Constitution of India would be maintainable against the decision or order of the Tribunal. In MUMTAZ AHMED AND ORS. VERSUS STATE OF H.P. AND ORS. 2016 (11) TMI 1757 - HIMACHAL PRADESH HIGH COURT , a Division Bench of the High Court of Himachal Pradesh while considering a bunch of petitions framed the following question for determination - Whether regular First Appeal or Civil Revision or petition under Article 227 of the Constitution of India would lie against the order passed by the Waqf Tribunal. After examining the issue in detail, the Division Bench held that writ petition or appeal is not maintainable against the order of a Tribunal since sub-section (9) of Section 83 of the Waqf Act, 1995 provides an efficacious alternative remedy to the aggrieved party to invoke the revisional jurisdiction of the High Court. This Court is of the considered opinion that a petition under Article 226/227 of the Constitution of India against the judgment or order passed by a Tribunal constituted under the Waqf Act, 1995 is not maintainable - the instant writ petition is dismissed as not maintainable.

Summary

Issues Involved:
1. Legality of the registration of properties under the Bihar State Sunni Waqf Board.
2. Validity of the Tribunal's judgment rejecting Waqf Appeal No. 01 of 2017.
3. Maintainability of the writ petition under Article 226 of the Constitution of India.

Summary:

1. Legality of the Registration of Properties:
The petitioner challenged the registration of Masjid Ahle Hadees properties in W.E. No. 2662, arguing it was part of W.E. No. 1052, registered in 1961 based on a waqfnama from 1920. The respondent no. 10 contended that the properties in W.E. No. 2662 were distinct and unrelated to those in the waqfnama of 1920, supported by documentary evidence.

2. Validity of the Tribunal's Judgment:
The petitioner argued that the Tribunal dismissed the appeal without examining the entire records of W.E. No. 1052 and without adequate hearing. The Tribunal erroneously concluded that the registration certificate did not relate to W.E. No. 1052. The petitioner also claimed that the Chief Executive Officer of the Board violated provisions of Section 36 read with Section 3(o)(i)(ii) of the Waqf Act, 1995.

3. Maintainability of the Writ Petition:
Respondent no. 10 raised a preliminary objection regarding the maintainability of the writ petition under Article 226, citing the availability of an alternative statutory remedy of revision u/s 83(9) of the Waqf Act, 1995. The court examined relevant provisions of the Waqf Act, 1995, including Sections 6, 7, 83, and the jurisdiction of the Tribunal. The court referred to precedents from various High Courts and the Supreme Court, particularly Sadhana Lodh Vs. National Insurance Co. Ltd. [(2003) 3 SCC 524], which emphasized that where a statutory right to file a revision exists, a writ petition under Article 226/227 is not maintainable.

Conclusion:
The court concluded that the writ petition under Article 226/227 of the Constitution of India against the Tribunal's judgment is not maintainable due to the availability of a statutory remedy of revision u/s 83(9) of the Waqf Act, 1995. The writ petition was dismissed, granting liberty to the petitioners to invoke the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 for redressal of their grievances.