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2015 DIGILAW 988 (CAL)

Golam Mustapha v. Board of Wakf, West Bengal

2015-12-22

DIPANKAR DATTA

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JUDGMENT : The petitioners claim that they were appointed joint matwallis in respect of Ashraful Islam Wakf Estate (hereafter the said Wakf Estate) by the Board of Wakf (hereafter the ‘Board’) in the year 2000 for a period of five years; that, after expiry of the tenure of five years, they had approached the Board with an application for their further appointment; that, since such application was not considered, reminders were issued; and that despite the same, the Board is yet to take a decision on the petitioners’ claim for continuance as joint matwallis of the said Wakf Estate. It has also been claimed by the petitioners that they are still looking after the said Wakf Estate as matwallis and maintaining the same properly for the benefit of the persons interested in the wakf. 2. By presenting this writ petition, the petitioners seek an order on the Board to decide their claim for matwalliship. 3. A preliminary objection to the entertainability of the writ petition has been raised by Mr. Galib, learned advocate appearing for the Board. To support the objection, he has relied on a decision of the Supreme Court reported in (2010) 14 SCC 588 (Board of Wakf, West Bengal & Anr. Vs. Anis Fatma Begum & Anr.) and an unreported decision of a co-ordinate Bench of this Court dated 19th April, 2011 in W. P. No. 6923 (W) of 2011 (Musst. Hazera Khatoon & Anr. Vs. The State of West Bengal & Anr.). 4. In ‘Anis Fatma’ (supra), the Supreme Court had the occasion to observe that all matters pertaining to wakf or wakf property should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightway under Article 226 of the Constitution. It was also observed therein that the proviso to Section 83(9) of the Wakf Act postulates that a party who wishes to raise any dispute relating to wakf or wakf property should first approach the tribunal before approaching the High Court. 5. Relying on such decision, the co-ordinate Bench in ‘Musst. Hazera Khatoon’ (supra) opined that: “It was clearly held by the Supreme Court in Anis Fatma that an aggrieved party can approach the Tribunal even if no order has been passed under the Act. 5. Relying on such decision, the co-ordinate Bench in ‘Musst. Hazera Khatoon’ (supra) opined that: “It was clearly held by the Supreme Court in Anis Fatma that an aggrieved party can approach the Tribunal even if no order has been passed under the Act. Hence I am unable to accept the argument that since the Chief Executive Officer did not pass any order, the petitioners were not entitled to go to the Tribunal. The remedy available under s.83 of the Wakf Act, 1995 is not an alternative to the art.226 remedy. It is just one other remedy falling within the genus other remedies, only a species whereof is an alternative remedy. Two remedies are alternatives to one another when the aggrieved person has a right to choose the one or the other. As has been held by the Supreme Court the remedy under s.83 of the Wakf Act, 1995 is the only remedy of the aggrieved persons such as the petitioners. Against the order of the Tribunal an aggrieved person can approach the High Court only under s.83(9) of the Wakf Act, 1995. Hence there is absolutely no scope for approaching the High Court under art.226 at any stage.” 6. Mr. Hassan, learned advocate for the petitioners while countering the preliminary objection raised by Mr. Galib has relied on several unreported decisions of co-ordinate Benches, viz. (i) decision dated 18th October, 2012 passed in W. P. No. 775 (W) of 2011; (ii) decision dated 5th August, 2013 passed in W. P. 20929 (W) of 2013 (Ashoke Roy Vs. The State of West Bengal & Ors.); (iii) decision dated 20th January, 2014 passed in W. P. 652 (W) of 2014 (Md. Takrimul Haque Vs. State of West Bengal & Ors.); (iv) decision dated 23rd June, 2014 passed in W. P. 15473 (W) of 2014; (v) decision passed in W. P. 15473 (W) of 2014 passed on; W. P. 23952 (W) of 2014 (Amanul Haque Vs. The Board of Wakf of W.B. & Anr.); (vi) decision dated 21st July, 2015 passed in W. P. 33478 (W) of 2014 (Abdul Rafi Mondal & Ors. Vs. The Board of Waqf of West Bengal & Ors.) and (vii) decision dated 10th August, 2015 passed in W. P. 18804 (W) of 2015 (Md. Iftekhar Alam Vs. The Board of Wakf). 7. Vs. The Board of Waqf of West Bengal & Ors.) and (vii) decision dated 10th August, 2015 passed in W. P. 18804 (W) of 2015 (Md. Iftekhar Alam Vs. The Board of Wakf). 7. In all such cases, the writ petitions were entertained and in most cases were disposed of with a direction upon the Board to discharge its statutory duty. 8. Of all the aforesaid decisions, the one in Iftekhar Alam (supra) requires special mention because in such decision Anis Fatma (supra) was considered by this Bench. Upon consideration of such decision as well as this Bench’s decision reported in (2013) 4 CHN (CAL) 701 (Ameruddin Ahmad Vs. Board of Wakfs, West Bengal), it was observed as follows :- “It is no doubt true that the Court of writ would be reluctant to entertain a writ petition regarding a dispute relating to a Wakf; however, this writ petition does not call for affidavits from the respective parties since no factual aspect is in dispute. The only claim of the petitioner is that the Board having issued the notice dated 25.03.2014 calling upon interested parties to object to his application, such application should be taken to its logical conclusion. Bearing in mind such fact, I am of the considered view that the Board having failed to discharge its statutory duty, it would be a travesty of justice to relegate the petitioner to the remedy available under the Wakf Act only for the purpose of obtaining a decision one way or the other on his application. The decisions cited by Mr. Salahauddin were rendered noting that there were disputes, which ought to have been left for decision of the tribunal at the first instance, and hence are distinguishable. The preliminary objection is thus overruled.” 9. It is noted that the decision in ‘Anis Fatma’ (supra) arose out of a suit filed in the original jurisdiction of this High Court. It does not appear from the decision itself that any argument was advanced on behalf of any of the parties that an aggrieved person is precluded from approaching the High Court straightway under Article 226 of the Constitution in respect of any dispute, question or other matter concerning a wakf or wakf property. It does not appear from the decision itself that any argument was advanced on behalf of any of the parties that an aggrieved person is precluded from approaching the High Court straightway under Article 226 of the Constitution in respect of any dispute, question or other matter concerning a wakf or wakf property. The observation made by the Supreme Court to the effect that the High Court cannot be straightway approached under Article 226 of the Constitution having been made without any argument advanced before the Court on such issue, the same cannot be treated to be a binding precedent. If support for such view is required, one may usefully refer to the decision of the Supreme Court reported in AIR 1990 SC 781 (M/s. Goodyear India Ltd. Vs. State of Haryana), where Hon’ble Sabyasachi Mukherjee, J. (as His Lordship then was) had the occasion to observe as follows :- “A decision on a question which has not been argued cannot be treated as a precedent.” 10. The observation of the Supreme Court in ‘Anis Fatma’ (supra), which is in the nature of obiter dictum, thus loses precedential value. 11. That apart, the decision of the co-ordinate Bench in ‘Musst. Hazera Khatoon’ (supra) to the effect that there is absolutely no scope for approaching the High Court under Article 226 of the Constitution at any stage against an order of the Wakf Tribunal is clearly contrary to the decision of the Full Bench of this Court reported in (2008) 4 CHN 420 (Bhowanipore Gujrati Education Society Vs. Kolkata Municipal Corporation). Thus, this Bench, despite deep respect for the author of the judgment in ‘Musst. Hazera Khatoon’ (supra), is not inclined to follow the same. 12. On facts of the present case, no dispute has been raised in connection with a wakf or wakf property. Mr. Galib, for want of instructions, has not been able to satisfy as to why the Board did not consider the application made by the petitioners for appointment as joint matwallis of the said Wakf Estate. In terms of Section 32 of the Wakf Act read with Section 63 thereof, it is the function, nay the duty, of the Board to appoint matwalli(s). Once the Board has failed to discharge such statutory duty, there is no plausible reason as to why a writ petition would not lie to activate the Board. In terms of Section 32 of the Wakf Act read with Section 63 thereof, it is the function, nay the duty, of the Board to appoint matwalli(s). Once the Board has failed to discharge such statutory duty, there is no plausible reason as to why a writ petition would not lie to activate the Board. It is not a case of usurpation of the power of the Board or the Wakf Tribunal by the writ Court requiring the Board to act in a particular direction. The writ petition has been presented to wake the Board up from its slumber and to discharge the statutory duty in terms of the statutory mandate. If upon a decision being given by the Board on such application of the petitioners affecting the rights of parties, any aggrieved party may approach the Wakf Tribunal first without approaching the writ Court. It would be a travesty of justice to relegate the petitioners to the Wakf Tribunal to obtain a direction on the Board to discharge its statutory duty. It must be remembered by one and all that the rule of law is paramount, which requires public authorities created by a statute to function in the manner ordained by the statute that creates it. Merely because an observation has been made in the passing in ‘Anis Fatma’ (supra) precluding parties from approaching the writ Court, cannot be used by the public authorities to their advantage by stalling proceedings before a court of Writ. The preliminary objection, therefore, stands overruled. 13. The writ petition stands disposed of with a direction upon the Board to consider the claim of the petitioners for appointment as joint matwallis in accordance with law, as early as possible but not later than 8 (eight) weeks from date of receipt of a copy of this order. 14. There shall, however, be no order for costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.