OD 4

WPO/259/2024
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE

MEHBOOB ALAM
VS
STATE OF WEST BENGAL AND ORS

BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date: 26th April, 2024.

Appearance:
Mr. Nilay Sengupta, Adv.
Mr. Sujit Banerjee, Adv.
. . .for the petitioner.

Mr. Anand Farmania, Adv.

Mrs. Indumouli Banerjee, Adv.
. . .for the State.

Md. Salahuddin, Adv.

Md. Ahsanuzzaman, Adv.
Md. Raziuddin, Adv.
. . .for the Board of Aquaf.

The Court: Learned counsel for the petitioner submits that the petitioner is

a member of the Mutawalli Committee in respect of a particular Waqf Estate.

Even after the Waqf Estate was registered duly, an apprehension came in the

mind of the Committee that the Chairperson of the Auqaf Board, who is related to

certain hooligans in the locality, would have an influence in the matter. The

reason for such apprehension was threats being issued by such local hooligans.
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Accordingly, a representation was given to the Chief Executive Officer,

Board of Auqaf on November 3, 2023.

True to the apprehension of the petitioner, on November 23, 2023, the

Chairperson of the Board of Auqaf, West Bengal suo motu took up the matter of

modification/recall of the Board’s resolution dated July 17, 2023 regarding

formation of Committee of Mutawalli as per Waqf deed in respect of Sarbat Ali

Mohammad Waqf Estate. By virtue of the said order, the chairperson, it is

argued, unilaterally suspended the registration of the present Waqf Estate as a

Waqf property.

Learned counsel appearing for the Auqaf Board contends that the writ

petition is not maintainable in view of the specific alternative remedy available

under Section 83 of the Aquaf Act, 1995. That apart, it is argued that the entire

Auqaf Board and not the Chairperson alone had passed the impugned order.

Learned counsel for the Auqaf Board also cites an unreported judgment of

the Supreme Court in the matter of PHR Invent Educational Society versus UCO

Bank and Ors. for the proposition that if there is an alternative remedy available,

the High Court should not interfere in its jurisdiction under Article 226 of the

Constitution of India.

Learned counsel also places strong reliance on an unreported coordinate

Bench judgment in the matter of Musst. Hazera Khatoon & Anr. Versus The State

of West Bengal & Anr. where the learned Single Judge observed that the remedy

available under Section 83 of the Auqaf Act, 1995 is not an alternative to the

Article 226 remedy. It is just one other remedy falling within which genus are

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
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the one or the other. On such findings, it was observed that as the Supreme

Court has held that the remedy under Section 83 of the 1995 Act is the only

remedy of the aggrieved persons, there is absolutely no scope for approaching the

High Court under Article 226 at any stage. Although such a proposition was laid

down, it was considered by the learned Single Judge that counsel had submitted

that the Chief Executive Officer had not passed any order and the petitioner

cannot go to the Tribunal and that in any case the petitioner is not in a position

to go to the Tribunal that is not functioning.

In the other judgment cited by learned counsel for the Board, it is seen that

the principle of availability of alternative remedy has been upheld. It has been

held in a catena of judgments that if an alternative remedy is available, High

Courts normally do not interfere and apply a self-imposed restraint.

However, certain specific exceptions have been made in all the judgments

cited by the Board apart from the unreported judgment in Musst. Hazera Khatoon

(supra). Such exceptions, such as where the statutory authority has not acted in

accordance with the provisions of the enactment, acted in defiance of the

fundamental principles of judicial procedure and when an order has been passed

in total violation of the principles of natural justice, have also been recognized in

PHR Invent Educational Society (supra) cited by the Board.

A scrutiny of the above judgments clearly shows that although the norm is

not to invoke the writ jurisdiction where there is an equally efficacious alternative

remedy available, under certain circumstances, such remedy can definitely be

invoked.

The present case falls under the said exception on two counts.
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First, the impugned order is prima facie without jurisdiction, since the

chairperson did not have the authority to unilaterally suspend the registration of

a Auqaf Estate, particularly without giving any opportunity of hearing to the

Mutawalli Committee and the Auqaf Estate as such.

Secondly, the impugned order is prima facie devoid of any semblance of

reason.

That apart, since the Tribunal is not functioning at present, the remedy

available under Section 83 of the Aquaf Act is entirely illusory.

It appears from the order of the learned Single Judge in the unreported

judgment of Musst. Hazera Khatoon and Anr. that although the learned single

Judge had recorded the submissions of the parties that the Tribunal was not

functioning, the said consideration is not a part of the ratio of the judgment

where the learned Single Judge observed that there is absolutely no scope for

approaching the High Court under Article 226 at any stage.

However, a disputed question arises as to whether even if a Tribunal is not

functioning, this Court has the jurisdiction to invoke its powers under Article 226

of the Constitution of India to interfere, since the non-functioning of the Tribunal

designated to hear out such disputes tantamounts to the remedy itself being

rendered illusory and amounts to the absence of any alternative remedy worth

the name.

Since the order passed in Musst. Hazera Khatoon and Anr.(supra) goes

against the general line of judgments to the contrary where this Court has

repeatedly invoked the jurisdiction under Article 226 of the Constitution where

Tribunals are not functioning, I respectfully differ from the ratio laid down in the

said judgment. Accordingly, the matter be referred to a larger Bench and be

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placed before the Hon’ble Chief Justice for constitution of a larger Bench for

resolution of the following question under reference:

In the event a designated Tribunal under a particular statute is not

functioning, whether the alternative remedy of going before such Tribunal provided

in such statute operates as an absolute bar to the Writ Court invoking its powers

under Article 226 of the Constitution of India.

Insofar as the facts of the present case are concerned, in view of the above

observations, a strong prima facie case for hearing the writ petition on merits has

been made out, subject of course to the resolution of the question framed for

reference. Accordingly, there shall be stay of operation of the impugned order

dated November 23, 2023 till disposal of the writ petition. The file be placed

before the Hon’ble the Chief Justice for constitution of a larger Bench to resolve

the point of reference as indicated above.

Affidavit of service filed in Court be taken on record.

(SABYASACHI BHATTACHARYYA, J.)

SP/