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TMI Blog2018 (4) TMI 1982X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the great grandfather of petitioner no. 1 Late Sk. Haji Jan Ali in the year 1920. 4. On the other hand, the case of respondent no. 10 is that the plots including the mosque, which have been registered in W.E. No. 2662 on 20.12.2016 are different, mutually distinct, separate and unrelated to the properties described in the waqfnama of 1920 created by the great grand father of petitioner no.1. They are at far distance from each other and there is absolutely no relation or connection, howsoever remote, between the two. All the four plots in W.E. No. 2662 have been registered on the strength of unimpeachable documentary evidence. Merely because there is also a reference of mosque at Rajopatti in the waqfnama of 1920, a mischief has been played to suggest that it is the same mosque which exist at plot no. 124, 125k whereas in the waqfnama itself, it is duly explained that the mosque is situated within the waqf property. The plot nos. 124, 125k are neither part of W.E.No. 1052 nor they are situated adjacent to the house of the waqif or to the Waqf property. Nazri map, which was filed before the Tribunal clarifies that all the properties of W.E. No. 1052 are situated towards east of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate appearing for the Board submitted that in view of the proviso to sub-Section (9) of Section 83 of the Waqf Act, 1995 undoubtedly a revision petition would be maintainable before this Court. However, he submitted that writ petitions are being entertained by this Court against the judgment of the Tribunal since long and no objection has been raised by any party at any point of time in past. He submitted that such petitions are being filed either under the extraordinary jurisdiction of this Court under Article 226 or under supervisory jurisdiction under Article 227 of the Constitution of India. 8. In reply, Mr. Rajendra Narayan, learned senior advocate submitted that though there is no ambiguity in the language of the proviso to sub-section (9) Section 83 of the Waqf Act, 1995, a writ petition against the judgment of the Tribunal would be maintainable. He submitted that under Article 226 of the Constitution of India, the High Court having regard to the facts of the case has a discretion to entertain a writ petition inspite of availability of alternative statutory remedy. He submitted that against the decisions and orders passed by the Tribunal, writ petitions are fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunals for determination of any dispute, question or other matter relating to a waqf or waqf property. 17. For the purpose of better appreciation Section 83 of the Waqf Act, 1995, which bears direct relevance to the question herein may at this stage be extracted :- 83. Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. (2) Any mutawalli person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. (3) Where any application made under sub-section (1) relates to any Wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying it self as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such order as it may think fit. (emphasis mine) 18. By Wakf (Amendment) Act, 2013, which was brought into force on 01.11.2013, in Section 83 of the Wakf Act, 1995 for sub-section (1), following sub-section has been substituted :- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. 19. Similarly for sub-section (4), following sub-sections have been substituted :- (4) Every Tribunal shall consist of (a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Tribunal to question the correctness, legality or propriety of such determination and the High Court after satisfying itself may confirm, reverse or modify such determination or pass such other order as it may think fit. The said proviso has been couched in such term that it leaves no room for doubt that the High Court has been vested with the revisional jurisdiction against the order or decision of the Tribunal. 23. In the matter of Sadhana Lodh (Supra) on which reliance has been placed by the respondent no.10, a three-Judge Bench of the Supreme Court was dealing with a case in which the insurer had filed a writ petition against the order of the Motor Accidents Claims Tribunal, which had awarded a sum of Rs.3,50,000/- for the death of appellant‟s son. The said order was challenged by the insurer by way of filing a writ petition under Article 226 and 227 of the Constitution of India before the High Court, which was dismissed by the Single Judge. Being aggrieved, the insurer preferred a letters patent appeal before the Division Bench of the High Court. The claimant took an objection before the Division Bench that since petition under Articles 226/227 is not mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 C.P.C., in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under Section 115 C.P.C., no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of High Court under Article 226 of the Constitution. (emphasis mine) 25. Thus, in Sadhana Lodh (Supra), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision or order of the Tribunal. 28. In Md. Abdul Kareem (Supra), the High Court of Andhra Prakesh held : the jurisdiction of the High Court in disputes relating to Waqfs can be invoked only when an aggrieved party files a revision petition under Sub-section (9) of Section 83 of the Act and a writ petition would not be maintainable . 29. In Syed Asadulla Hussaini (Supra) a Division Bench of Karnataka High Court in writ appeal set aside the impugned order passed by the Single Judge in writ petition filed against the decision of the Tribunal with liberty to the aggrieved party to take remedy available under sub-section (9) of Section 83 of the Waqf Act, 1995. 30. In Zubedaben Mohammedmiya (Supra), the High Court of Gujarat held as under :- 6. From the provision in Section 83(9) itself and from what is laid down in the decisions considered hereinabove, it has to be ruled that when against any determination or order by the Waqf Tribunal, the statutory prescription of remedy is revisional power and revisional jurisdiction, only revisional jurisdiction of the High Court could be invoked. The proceedings ought to have been registered as a Revision Application. When the nature of two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is also made clear that this judgment is prospective in nature and will not, in any way, have retrospective effect. 32. In terms of proviso to Sub Section (9) of Section 83 of the Act, any person aggrieved by the orders of the Tribunals can invoke the revisional jurisdiction of the High Court. Thus, remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. The Act contains the mechanism for filing revision petition, thus, providing efficacious alternative remedy to the aggrieved party, rendering the writ petition not maintainable against the orders passed by the Tribunal. This view has been taken by this Court in case titled as M/s Indian Technomac Company Ltd. versus State of H.P. others, being CWP No.4779 of 2014, decided on 4th August, 2014, and restated in plethora of judgments. In a similar case, the High Court of Andhra Pradesh in case titled as Mohd. Abdul Kareem And Anr. vs. Andhra Pradesh State Wakf Board, 2004(2) ALD 345, held that the jurisdiction of the High Court in disputes pertaining to Wakfs can be invoked by way of filing revision petition and not by the medium of a writ petition. It is apt to reproduce par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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