ORDER : 1. This petition under Articles 226 and 227 of the Constitution of India is filed with a prayer to declare the impugned order dated 21.11.2019 by the Gujarat State Wakf Board, Gandhinagar to be arbitrary, illegal, non-est and ultra vires without jurisdiction or authority of law and has therefore, prayed for quashing and setting aside the same. 2. By the impugned order, the respondents No.2, 3 and 4 are appointed as additional mutawallis. It is the case of the petitioners that the appointment as additional mutawallis is ultra vires the Waqf Act, 1995 (hereinafter referred to in short as 'the Act') and beyond the purview and scope of Section 63 of the Act. This Court by an order dated 13.01.2020 had issued Notice and stayed the impugned order dated 21.11.2019. 3. The respondent No.2, through their Advocates have raised preliminary objection contending alternative remedy available to the petitioners. While raising the preliminary objection, it is contended the order in question is passed under Section 63 of the Act, which has the power to appoint mutawallis in certain cases and therefore, such being the order of the Board, the same can be challenged before the Tribunal under Section 83(2) of the Act. The Court proposes to hear the preliminary objections and therefore, in this regard, learned Advocate for the petitioners opposing the preliminary objection has submitted that the order in question is without jurisdiction as the order in question is not an order under the Act. Learned Advocate submitted that Section 63 of the Act can be invoked for appointment of mutawallis only when there is a vacancy in the office of mutawalli. Learned Advocate further submitted that Section 42 of the Act provides for contingencies in which the vacancies takes place in a Waqf. It can be either due to death or retirement or removal of the mutawalli. In the instant case, the petitioners are mutawallis since 2016 when the Sajjada-Nashin who was the sole mutawalli of the Trust during his lifetime had appointed the petitioners as mutawalli and therefore, there is no incident of vacancy to invoke Section 63 of the Act. It can be either due to death or retirement or removal of the mutawalli. In the instant case, the petitioners are mutawallis since 2016 when the Sajjada-Nashin who was the sole mutawalli of the Trust during his lifetime had appointed the petitioners as mutawalli and therefore, there is no incident of vacancy to invoke Section 63 of the Act. Therefore, the order which is passed cannot be said to be an order under Section 63 at all and therefore, it is an order not covered under the provisions of Act and therefore, the option available to the petitioners is to approach this Court by way of a Writ Petition. 4. Learned Advocate for the petitioners relied upon the judgment of the High Court of Kerala in the case of The Kerala Wakf Board, Ernakulam v. Alam Abookbacker Sait and Others reported in 1987 SCC OnLine Ker 7 to contend that while interpreting Section 42 and the powers conferred upon the Waqf Board, it is to be exercised under two situations which are specified in the Section itself. First is when there is no one appointed as per the terms of the deed of Waqf and the second is where the right of any person to act as a mutawalli is disputed. In either cases, the vacancy has to be there in the office of the mutawalli, only then two situations can be referred to. Learned Advocate for the petitioners has relied upon the decision of the Madras High Court in the case of Khadar Shariff and Others v. Tamil Nadu State Wakf Board and Others reported in AIR 1989 Mad 40 and submitted that the Board is not empowered to appoint either a Committee or a Executive officer and manage the Waqf when the mutawalli is the Incharge of the management and administration of the Waqf. 5. Learned Advocate has then relied upon the decision of the Apex Court in the case of Raza Textiles Ltd. v. Income Tax Officer, Rampur reported in (1973) 1 SCC 633 to justify the issuance of Writ of Certiorari when the authority cannot confer jurisdiction on itself by deciding a jurisdictional fact erroneously. In the instant case, by presuming the vacancy of mutawalli of the Waqf, the Board has assumed the jurisdiction wrongly and therefore, the order being without jurisdiction, certiorari can be sought. 6. In the instant case, by presuming the vacancy of mutawalli of the Waqf, the Board has assumed the jurisdiction wrongly and therefore, the order being without jurisdiction, certiorari can be sought. 6. In support of the preliminary objection, learned Senior Counsel Mr. Shalin N. Mehta with learned Advocate Mr. M.I. Merchant for the respondents jointly submitted that Waqf Act clearly provides for an alternative remedy. Infact, the impugned order is already the subject matter of challenge before the Gujarat State Waqf Tribunal by way of Waqf Appeal No.6/2020, Waqf Appeal No.48/2019 and Waqf Appeal No.4/2020. All these have been listed from time to time before the Tribunal where the petitioners are also the parties and have been served with a Notice by the Tribunal. 7. Learned Advocates submitted that the vacancy is not an essential requirement for invoking powers under Section 63 of the Act as a close reading of Section 63 specifies two independent and mutually exclusive contingencies, one is when there is a vacancy in the office of mutawalli and there is no one to be appointed under the terms of deed of Waqf and the other contention is where the right of any person to act as mutawalli is disputed. In the instant case, the right of the petitioners to continue as mutawalli is in dispute. The Change Report No.556/2016 has been cancelled and the petition challenging such order is also dismissed meaning thereby, the second contingency is very much alive for exercising powers under Section 63 of the Act. It is further submitted that Section 83(2) of the Act provides for an Appeal by any mutawalli or person interested in Waqf, who is aggrieved by an order passed under this Act. It is submitted that learned Advocate for the petitioners has not been able to establish as to how the order impugned in the present petition is not an order under this Act. In that view of the matter, it is prayed that the preliminary objection has to be sustained and the petitioners be relegated to the statutory alternative remedy. 8. I have considered the rival submissions of the parties and perused the documents on record of the case. In that view of the matter, it is prayed that the preliminary objection has to be sustained and the petitioners be relegated to the statutory alternative remedy. 8. I have considered the rival submissions of the parties and perused the documents on record of the case. The order dated 13.01.2020 was passed by this Court on the basis of argument of learned Advocate for the petitioners by drawing attention of this Court to Section 63 and Section 32(2)(g) – Powers and functions of the Board, as well as Section 42 – Change in the management of [auqaf] to be notified, of the Act. It is contended that for invoking Section 63, vacancy in the office of mutawalli is a must and vacancy can fall only under three situations mentioned in Section 42 of the Act, namely due to death or retirement or removal of muttawali. As none of these contingencies is available in the facts of the case, the impugned order is in accordance with the provisions of this Act and Section 32(2)(g) provides for appointment of appointment and removal of mutawallis in accordance with the provisions of this Act. A close reading of Section 63 of the Act is required which is reproduced herein is as under :- “63. Power to appoint mutawallis in certain cases. - When there is a vacancy in the office of the mutawalli of a [waqf] and there is no one to be appointed under the terms of the deed of the [waqf], or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.” 9. In the opinion of the Court, Section 63 of the Act can be invoked in two situations when there is a vacancy in the office of a mutawalli of Waqf and there is no one to be appointed under the terms of the deed of Waqf. The sentence is broken there and proceeds with “or” where the right of any person to act as a mutawalli is disputed. It is in this set of situations, the Board may appoint another person to act as a mutawalli for such period and on such condition as it may think fit. The sentence is broken there and proceeds with “or” where the right of any person to act as a mutawalli is disputed. It is in this set of situations, the Board may appoint another person to act as a mutawalli for such period and on such condition as it may think fit. These two contingencies the Court will have to read as separate and mutually exclusive both the situations cannot connected to existence of vacancy and the right of any person to act as a mutawalli is disputed, the use of word “or” gains significance to create two mutually exclusive situations and according to the Court, the situation as argued by the petitioners that there is a vacancy in the office of mutawalli of Waqf and the right of any person to act as a mutawalli is dispute can co-exist appears to be incongruent. Moreover, Section 42 of the Act is only for the purpose of notifying the change in the management of Waqf and such change is to be notified to the Board by the incoming mutawalli forthwith where change in the management of the registered Waqf is due to the death or retirement or removal of muttawali. This cannot circumscribe the width of Section 63 of the Act to mean that the vacancy necessarily must arise out of death, retirement or removal for invoking Section 63 of the Act. 10. In the present case, the following facts are not in dispute that the Change Report dated 05.10.2017 being the Change Report No.556/2016 where the petitioners were appointed as mutawalli was granted treating it to be undisputed, which came to be challenged in Waqf Appeal No.8/2017 and vide order dated 24.01.2019, the Change Report No.556/2016 came to be cancelled. The matter was thereafter, remanded back to the Board against which the petitioners had filed a Special Civil Application No.2446/2019 and by an order dated 07.02.2019, the petition came to be dismissed meaning thereby, the Change Report appointing the petitioners as mutawallis was treated as cancelled. The matter was thereafter, remanded back to the Board against which the petitioners had filed a Special Civil Application No.2446/2019 and by an order dated 07.02.2019, the petition came to be dismissed meaning thereby, the Change Report appointing the petitioners as mutawallis was treated as cancelled. Learned Advocate for the petitioners had tried to argue that the Letters Patent Appeal against the order of the learned Single Judge is filed and pending and that by cancelling the Change Report, the appointment of the petitioners as mutawalli is not under challenge by anybody, as the same has to be a separate challenge either under the Act or way of declaration in the Civil Court. Since the Court is addressing the issue of preliminary objection, it does not want dwell further on the issue but suffice to say that the requirement of Section 63 of the Act is fulfilled and even otherwise even if vacancy is a necessary contingency to invoke Section 63, prima-facie this Court is of the view that order of the Board in setting aside the Change Report and confirming of the same by the decision of this Court can be treated as vacancy providing for invoking of Section 63 of the Act. 11. Having said that, the Court is inclined to accept the preliminary objection of alternative remedy. Section 83(2) of the Act provides for a remedy to an aggrieved person by adding a mutawalli or a person interested in the Waqf or any other person aggrieved by an order made in this Court or Rules, may make an application to the Tribunal for determination of any dispute, question or other matter relating to the Waqf. As such, the Court is of the view that the impugned order was very much the order under the provisions of this Act and would be clearly covered under Section 83(2) of the Act. In Paragraph 4, the High Court of Kerala in the case of The Kerala Wakf Board, Ernakulam (supra) held as under :- “4. As such, the Court is of the view that the impugned order was very much the order under the provisions of this Act and would be clearly covered under Section 83(2) of the Act. In Paragraph 4, the High Court of Kerala in the case of The Kerala Wakf Board, Ernakulam (supra) held as under :- “4. Section 42 of the Act which calls for construction in this case may be set out as follows : “When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such condition as it may think fit." On a plain construction of Section 42 it appears to us that power has been conferred on the Wakf Board to appoint any person to act as the mutawalli under the two situations specified in the section. The first is when there is no one to be appointed under the terms of the deed of the wakf and the second is where the right of any person to act as mutawalli is disputed. But it appears to us that the power of appointment can be exercised only when there is a vacancy in the office of the mutawalli of a wakf. The expression "when there is a vacancy in the office of the mutawalli of a wakf applies to both types of situations viz., there being no one to be appointed under the terms of the deed of the wakf and where the right of any person to act as mutawalli is disputed. On a plain reading of Section 42 of the Act it appears that the power to appointment can be exercised only when there is a vacancy. It is an enabling provision which entitles the Wakf Board to step in when there is vacuum, there being none to look after the affairs of the Wakf as a mutawalli. It is also necessary to note that the power conferred by Section 42 is not to appoint a person as the mutawalli but to appoint a person to act as the mutawalli. It is also necessary to note that the power conferred by Section 42 is not to appoint a person as the mutawalli but to appoint a person to act as the mutawalli. The stipulation that such appointment shall be made for such period and on such condition as it may think fit also suggests that it is not the regular appointment of a mutawalli that is contemplated by Section 42 of the Act. 12. The Court is in respectful disagreement with the aforesaid proposition as the High Court of Kerala has considered the expression that when there is a vacancy in the office of mutawalli in the following fashion "when there is a vacancy in the office of the mutawalli of a wakf applies to both types of situations viz., there being no one to be appointed under the terms of the deed of the wakf and where the right of any person to act as mutawalli is disputed”. The word “or” appears to have escaped and in place the conjunction 'and' is used which is not found in the statute meaning thereby that the High Court of Kerala has proceeded to relate the two contingencies with the vacancy in the office of the mutawalli independent of each other. As explained hereinabove, the use of word 'or' under Section 63 of the Act is suggesting that the two contingencies are independent, first contingency depending upon the vacancy in the office of the mutawalli whereas the second contingency is only where there is a dispute with regard to the right of any person to act as a mutawalli. 13. Reliance placed by learned Advocate for the petitioners on the decision in the case of Khadar Shariff and Others (supra), in the opinion of this Court is not well founded as the issue decided by the High Court of Madras was with regard to the power of the Waqf Board to appoint either a Committee or a Executive Officer to manage the Waqf when the muttawali is the Incharge of the Management and administration of Waqf, the same was decided under the provisions of the Waqf Act as it existed prior to 1995. 14. 14. The Court has also taken into consideration the submission of learned Advocates for the respondents that some of the aggrieved persons have already filed three independent Waqf Appeals against the very impugned order where the petitioners are already the respondents the proceedings are very much within their knowledge. It is also submitted that having failed to get any interim order in either of the three Appeals, the present petition is filed. When this Court is dealing with the petition only on the issue of preliminary objection, the Court refrains from entering into the merits and demerits of the case as the avenue of an appeal before the Tribunal is still available to the petitioners and that the same impugned order is a subject matter of challenge in separate Appeals before the Tribunal. Therefore, the observations made in the present case are restricted to the preliminary objections. The Court sustains the preliminary objection and therefore, dismisses the petition. Notice is discharged. 15. At this stage, learned Advocate for the petitioner requests for extension of the stay granted by this Court under order dated 13.01.2020. Learned Advocates for the respondents oppose the same on the ground that the impugned order is of November 2019 and the petitioners have waited till January 2020 to challenge the same and therefore, the stay may not be extended. 16. As the petition is being dismissed on the basis of the preliminary objections, the petitioners are therefore, relegated on the ground of alternative remedy available before the Waqf Tribunal and therefore, it would be appropriate to extend the interim relief by staying the impugned order dated 21st November, 2019 till 19th FEBRUARY, 2020. 17. Learned Advocate for the petitioners seeks extension of item relief granted by an order dated 13.01.2020. However, considering the nature and the decision on the basis of preliminary objection on account of the alternative remedy available, the request is rejected.