Andhra HC (Pre-Telangana)
Mohd. Abdul Kareem And Anr. vs Andhra Pradesh State Wakf Board And Ors. on 17 February, 2004
Equivalent citations: 2004(2)ALD345, 2004(3)ALT254
ORDER V.V.S. Rao, J.
1. The two petitioners belong to a Muslim sect known as Ahle-Hadees. They regularly offer prayers at Jamia Masjid, and Idgah of Chilkalguda in Secunderabad. It appears members of other community known as Ahle-Sunnat-Wal-Jamat subscribed to the view that women are ineligible to offer prayers in a Mosque and Idgah, as per Fatwa said to have been issued by Moghal Emperor Aurangazeb. Ahle-Hadees, however, believe that women can also perform prayers at Mosque and Idgah, provided there is a separate enclosure for them. The Idgah at Chilkalguda is under the control of Andhra Pradesh State Wakf Board, first respondent herein, and citizens of Islamic faith offer prayer at the Idgah on the day of Idd-ul-Fitr and Idd-ul-Zuha (popularly called Ramzan and Bakrid respectively).
2. The petitioners claim that during Ramzan and Bakrid days along with their other brethren they used to offer prayers from 7.30 a.m., to 8.30 a.m., and there was no practice of Ahle-Sunnat-Wal-Jamat offering prayers at the Idgah and they used to offer prayers only in the Mosque. There have been disputes between the two sects on this ground. Therefore, Ahle-Sunnat-Wal-Jamat, the second respondent herein, filed a suit, being O.S. No. 167 of 2001, before A.P.Wakf Tribunal, Hyderabad, seeking a decree of injunction restraining the petitioners and members of Ahle-Hadees from offering prayers at Mosque and Idgah at Chilkalguda. The petitioners herein, another devotee and two other persons claiming themselves to be President and Secretary of the Managing Committee of Jamia Mosque Ahle-Hadees also filed O.A. No. 21 of 2001, seeking a direction to Respondents 1 and 2 herein (A.P. Wakf Board and Managing Committee, Ahle-Sunnat-Wal-Jamat), to permit the petitioners and followers of Ahle-Hadees sect by separate arrangement for ladies to perform Idd prayers on the occasion of Idd-Ul-Fitr and Idd-Ul-Zuha, prior to the prayers of the followers of Ahle-Sunnat-Wal-Jamat. They also sought for a direction not to interfere with performance of the Idd prayers.
3. The learned Wakf Tribunal by a Common Award dated 20.1.2004, dismissed O.S.167 of 2001 filed by the second respondent herein and decreed O.A.21 of 2001 filed by the petitioners and others. The decree reads as under:
"1. That the Original application be and the same is hereby allowed with the directions for every RAMZAN and BAKRID Idd prayers as follows:-
2. That Ahle-Sunnat-Wal-Jamat do start prayers sermons by 7.00 a.m., and complete rituals by 8.30 a.m., sharp and afterwards vacate the Idgah Premises.
3. That Ahle-Hadees members with their women folk are permitted to discharge Idd prayers by 10.45 a.m., onwards.
4. That both the committee members are ordered to maintain strict adherence to the above directions and maintain peace, law and order at the Idgah Premises.
5. That there shall be no order as to costs."
4. Feeling aggrieved by the decree, insofar as the same allows Ahle-Sunnat-Wal-Jamat to start prayers by 7.00 a.m., and complete rituals by 8.30 a.m. and allowing Ahle-Hadees members to perform prayers with their women folk from 10.45 a.m., onwards, the petitioners filed the present writ petition. The petitioners are not aggrieved as such by the decree passed by the learned Tribunal, but they have a grievance about allowing rival muslim sect to perform prayers earlier than members belonging to petitioners' sect. The learned Counsel for the petitioners, Sri S.Prabhakar, submits that the order passed by the Tribunal is irrational, that it is bad for non-disclosure of reasons and that by allowing petitioners' sect to commence prayers at 10.45 a.m., the Tribunal perpetually made the members belonging to Ahle-Hadees sect a second class muslims. He would also urge that when an order is passed by the Tribunal on the grounds which are irrational and unreasonable and not germane to resolve the controversy, a writ petition would lie to this Court.
5. The learned Standing Counsel for A.P. Wakf Board, the first respondent herein, Sri A.M. Qureshi, and the learned Counsel for second respondent, Sri M.A. Shakoor, oppose the writ petition. They would urge that this writ petition is not maintainable in view of Sub-section (9) of Section 83 of the Wakf Act, 1995 (Central Act 43 of 95, hereinafter called "the Act"), which confers power on the High Court to call for records passed by the Wakf Tribunal and revise the same. Reliance is placed on the decision of the Supreme Court in Sadhana Lodh v. National Insurance Company Limited, . Both the learned Counsel would urge that sufficient reasons are disclosed by the learned Tribunal and that those reasons are not irrational. Ahle-Sunnat-Wal-Jamat has a large number of Muslims believing in the sect, whereas, the total number of members belonging to Ahle-Hadees sect does not exceed one thousand. Having regard to this, the learned Tribunal permitted Ahle-Sunnanth-Wal-Jamath people to commence prayer at 7.30 a.m., and complete by 8.30 a.m. As it would take some time for the congregation to disburse, the petitioners' sect were permitted to perform prayers from 10.45 a.m., onwards. This, according to the learned Counsel for the respondents, is rational and reasonable. The learned Counsel for the second respondent also submits that Original Application filed by the petitioners under Sub-section (2) of Section 94 of the Act itself is not maintainable and, therefore, no interference is called for in this writ petition.
6. Whether a writ petition is maintainable at this stage? This is the question, which needs to be considered at the outset. The Act entirely deals with various aspects on Administration of Wakfs and other matters connected with wakfs. Section 2(q) of the Act defines 'Tribunal" as to mean the Tribunal constituted under Sub-section (1) of Section 83 of the Act. Whenever there is a dispute regarding wakfs whether, a particular property is wakf or whether it is a Shia wakf or Sunny wakf, the party interested may have to institute a suit in the Tribunal for a decision (see Section 6). Under Section 7 of the Act, it is only the Tribunal which can decide any question whether a particular property is wakf property or not.
7. Chapter VIII of the Act deals with "Judicial Proceedings" in respect of wakfs. Section 85 bars a suit or other proceedings in any Civil Court in respect of any dispute, question or other matters relating to wakf. These have to be decided by the Tribunal constituted under Section 83(1) of the Act. Section 83 of the Act contains nine sub-sections. Section 83(1) confers power on the State Government to constitute as many Tribunals as it may think fit for determination of any dispute, question or other material relating to wakf. For the purpose of this case, it is not necessary to refer to Sub-section (3) to Sub-section (8). Sub-section (7) of Section 83 gives finality to the decision of the Tribunal which would bind upon the parties to the application. Sub-section (2) and Sub-section (9) of Section 83 are relevant and read as under:
"(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.
(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board of 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 itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."
8. As seen from Sub-section (2) and Sub-section (9), though no appeal would lie against it, any decision made by the Tribunal, power is conferred on the High Court to call for examining the records, either on its motion or on application made by the Wakf Board or person aggrieved, relating to any dispute, question or other matter determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality, or the propriety of such powers. This is essentially a revisional power conferred on the High Court by the Parliament to reverse or modify the decision of the Tribunal. There cannot be any doubt that this is an effective alternative remedy available to a person who is aggrieved by the order/decree passed by Wakf Tribunal. It is well settled that when statute gives a right of appeal or provides other effective alternative remedy like a revision, a writ petition is ordinarily not interfered.
9. A reference may be made to the decision of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, . In the said case, the Hon'ble Supreme Court relying on its earlier decision in Rashid Ahmad v. Municipal Board, , K.S. Rashid and Son v. The Income Tax Investigation Commissioner, , State of U.P. v. Mohd. Nooh, AIR 1958 SC 86, A.V. Venkatswaran v. Ramchand Sobhraj Wadhwani, , and Calcutta Discount Co., Ltd. v. Income-Tax Officer, , laid down as under:
"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged.... Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
10. It is not denied by the learned Counsel for the petitioners that the Tribunal has jurisdiction- No provisional Act or Rule is challenged before this Court nor is it the case of the petitioners that principles of natural justice have been violated. The case does not fall within any exceptions to ignore the "Rule of alternative remedy". Therefore, the writ petition is liable to be dismissed.
11. The learned Counsel for first respondent also relied on Sadhana Lodh v. National Insurance Co., Ltd. (supra) in support of the contention that when once appeal or revision is not barred, a writ petition under Article 226 of the Constitution of India is not maintainable. In the said case, a question was raised as to whether an Insurance Company which suffered a decree of Motor Accidents Claims Tribunal, can file a petition under Article 226/227 of the Constitution of India, though appeal under Section 173 of the Motor Vehicles Act (MV Act) is available. It was contended that under Section 173 of the MV Act, an insurer has limited grounds available and, therefore, a petition under Article 226/227 of the Constitution is maintainable. The Supreme Court rejected the contention and held that availability of limited grounds to the insurer under Section 149(2) of MV Act, being the product of the statute, it is not open to an insurer to flic a petition under Article 226/227 of the Constitution. The Supreme Court ruled out that where a statutory right to file an appeal is provided, it is not open to the High Court to entertain a petition under Article 226/227 of the Constitution. It was also held that if a revision is expressly barred, then only a remedy under Article 227 can be availed, but not the remedy under Article 226. The following passage from the judgment of his Lordship Hon'ble the Chief Justice V.N. Khare needs to be excerpted.
"The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co., Ltd. v. Nicolletta Rohtagi, . This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where as 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 against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution, As a matter of illustration, where a Trial Court in a civil suit refused to grant temporary injunction ami an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under Section 115 CPC, 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 CPC, 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 the High Court under Article 226 of the Constitution" (Empliasis supplied)
12. A reference may be made to a Division Bench judgment of this Court, to which I was a member, in Allauddin Charities and Zakath Wakf v. Hameed Ali. The Division Bench, inter alia, considered the point whether a writ petition would lie in respect of a dispute regarding the wakf. It was held as under:
"Under Sub-section (5) of Section 83, the Tribunal constituted under Sub-section (1) of Section 83 shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure while trying a suit or executing a decree or order. The jurisdiction of the Civil Court is specifically barred under Section 85 of the Act. Therefore, when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a Wakf or Wakf property under the Act and acts as a Civil Court for all purposes, this Court, in exercise of the jurisdiction under Article 226 of the Constitution, cannot permit a party to bypass such statutory remedy and assign itself the role of statutory authority or Tribunal by dealing with the disputed questions of fact or title. It is only after the issue or dispute is determined by the Tribunal at the first instance, the High Court, in exercise of the power under the proviso to Sub-section (9) of Section 83 of the Act gets jurisdiction and can go into the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order it may think fit. We are, therefore, of the view that unless the party aggrieved of the orders of the CEO has availed, of the alternative remedy available to him under the Statute and the Tribunal has determined the issue or dispute or the nature of the property as provided under the provisions of the Act, this Court, cannot go into question of validity of the orders passed by the Chief Executive Officer."
13. As seen from the above, the jurisdiction of the High Court in disputes relating to Wakfs 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. In view of the binding precedents, this Court is not inclined to go into the merits of the contentions on other two questions raised by the learned Counsel for respective parties. These are left open to be decided at an appropriate stage in appropriate proceedings.
14. In the result, for the above reasons, the writ petition is dismissed in limini, giving liberty to the petitioners to avail the remedy under Sub-section (9) of Section 83 of the Act. No costs.