The Board of Wakf, West Bengal vs. Golam Mustapha & Another - (High Court of Calcutta) (15 Jun 2018)

Wakf Tribunal Cannot Assume Supervisory Jurisdiction Over Wakf Boards

MANU/WB/0428/2018

Property

By way of this appeal, appellant has challenged the judgment and/or order passed by learned Single Judge of this High Court whereby the learned Judge disposed of a writ petition with a direction upon the Board of Wakf (appellant) to consider the claim of the writ petitioners for appointment as Joint Mutawallis in accordance with law, as early as possible; but not later than eight weeks from the date of receipt of the copy of the said order.

Appellants submits that learned Writ Court was not justified in overruling his objection regarding maintainability of the writ petition by holding that the observation of the Hon’ble Supreme Court in Board of Wakf, West Bengal & Anr. vs. Anish Fatma Begum & Anr. MANU/SC/0970/2010, that High Court cannot be straightway approached under Article 226 of the Constitution, loses the precedential value, as such observation which was made by the Hon’ble Supreme Court, was in the nature of obiter dictum. He further submits that even if the decision of the Hon’ble Supreme Court in ‘Anis Fatma’ - that no one can approach the Writ Court straightway, is obiter dicta, the High Court cannot get over such decision of the Supreme Court which was passed after due consideration of the relevant provisions of law.

On the other hand respondent submits that Writ Court do not lose its jurisdiction to entertain the writ petition when no dispute as contemplated under Sections 6 and 7 of the Wakf Act, 1995 concerning a listed Wakf and/or its properties is at issue between the parties which is required to be resolved only by the Wakf Tribunal constituted under Section 83 of the said Act. He further submits that for determination of any dispute, question or other matter relating to a Wakf or Wakf property and such disputes which are required to be resolved by such tribunal cannot be dealt with by the Civil Courts; in view of the provision contained in Section 85 of the said Act which excludes the jurisdiction of the Civil Court in respect of any or every question or dispute relating to Wakf or a Wakf property.

The Court opined that observation of the Hon’ble Supreme Court is merely a casual observation and/or a passing remark which is not supported by any law. Decision which is pronounced on the other issues raised in Anis Fatma’s case is no doubt a decision in the nature of ratio decidendi having binding effect on all the Courts and the authorities within the territory of India. Hon’ble Supreme Court held that the High Court cannot entertain such suit in view of Sections 85 and 83(9) of the Wakf Act. The apex Court also held that even if no order as contemplated under Section 83(2) of the said Act, is passed, Tribunal can entertain an application touching any dispute concerning Wakf or Wakf properties.

The bench observed that as per the Wakf Act 1995, there are three judicial functions which are vested with the tribunal to be discharged: “Section 83 provides for constitution of Wakf Tribunal for discharging three (3) types of judicial functions viz. (i) as a trying forum by entertaining suits as contemplated under Section 6, Section 7 and Section 32(3) of the said Act; (ii) as an appellate forum by entertaining appeals as contemplated under Section 33(4), Section 13 38(7), Section 40(2), Section 40(4), Section 51(5), Section 52(4), Section 64(4), Section 67(4), Section 67(6), Section 69(3) and Section 73(3) and (iii) under Section 83(2) by entertaining applications, as contemplated under Section 35, Section 39(3), Section 48(2), Section 83(2) and Section 94(1) of the said Act.”

The Court finally said that the tribunal is not vested with any supervisory jurisdiction over the Board of Wakf or any other authority created under the said Act. “Tribunal cannot assume supervisory jurisdiction to pass any direction upon the Board of Wakf and/or any other authority under the said Act. As such, jurisdiction which was not vested either directly or indirectly upon the Tribunal by the said Act cannot be assumed by the Tribunal by itself. Since the supervisory jurisdiction is not vested with the Tribunal, the Tribunal cannot assume jurisdiction to pass any direction upon the Board of Wakf to dispose of any pending application before it.”

Tags : WAKF WRIT PROPERTY HIGH COURT