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The Top Court was hearing an appeal against a 2011 decision of the Bombay High Court whereby constitution of the Maharashtra State Board of Waqfs had been quashed.
The Apex Court recently held that the existence of an alternate remedy is not enough by itself to exclude writ jurisdiction of the High Court. The Apex court was hearing an appeal against the 2011 decision of the Bombay High Court where the High Court had quashed the constitution of the Maharashtra State Board of Waqfs.
A division bench of Justice KM Joseph and Justice Hrishikesh Rao said, “No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which have held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction".
"No doubt, when High Courts stray outside the limits with reference to certain principles as have been laid down in the decision which we have referred to, it can be corrected. Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case,” the bench said.
Senior Counsel Mr. KK Venugopal had submitted before the court that there is no duty cast under Section 13(2) of the Act to have separate Boards if the percentage of Shia Wakfs is found to exceed the percentage mentioned in the said section (15 percent).
One of the contentions raised by the Board before the Apex Court was that under the Act there is a remedy to approach the Waqf Tribunal. He had also contended that, in fact, when the Wakf Act 1954 was enacted having regard to Article 254 of the Constitution, even treating the 1950 Act as a law that embraced a Wakf as a public trust and provided for its regulation, the Wakf Act, 1954 being a self-contained Code even if it was not made applicable to the State of Bombay, in view of the judgment of the Top Court in State of Kerala & Ors. v. Mar Appraem Kuri Co. Ltd. & Another, the mere making of the law by Parliament attracted the doctrine of repugnancy.
Therefore, since the Scheme of the Wakf Act, 1954 is completely irreconcilable with the provisions of 1950 Act, it did not even survive the passing of the Wakf Act, 1954, he had said.
He had submitted further that as far as the corrigendum which was issued on 05.05.2005 cutting down the width of the number of the Wakfs which was included in the original list dated 13.11.2003 is concerned, it was wrongly done. With regard to the effect of Section 112 of the Act, Senior Counsel K.K. Venugopal had further submitted that Section 112 clearly brings about a repeal of the law in relation to Wakfs in the 1950 Act.
The counsel for the State had also attacked the findings of the High Court on analogous grounds and he had adopted the argument addressed by Venugopal. He had submitted that after the filing of the special leave petitions in the Top Court which took place in the year 2011, the Government ordered a second survey on 07.12.2016.
He had pointed out that the order dated 20.10.2010 had been revoked. He had contended that natural justice if it is to be observed to the extent canvassed, may render it impermissible to obtain any fruitful results. He had further contended that Wakfs would have been registered as deemed Wakfs under Section 28 of the 1950 Act, being Wakfs prior to the 1950 Act. In that case, there can be no complaint at all as they would qualify as Wakfs even under the Act. This is for the reason once a wakf, always a Wakf, he had said.
A. M. Singhvi, senior counsel, had stoutly contested the case of the appellants by pointing out that the appellant’s case was in the teeth of an unbroken line of decisions of the Top Court bringing out the clear-cut distinction between a public Trust and a Wakf. He had submitted that his client Sir Adamji Peerbhoy Santorium was created under a scheme settled by an order dated 16.06.1931 passed by the High Court of Bombay and which was registered under the 1950 Act. The respondents were trustees of the aforesaid Public trust created by Muslims and they were not Wakfs. He had submitted that a Muslim would perhaps naturally lean in favour of creating a Wakf. This did not preclude him or prevented him from creating a public charitable Trust, he had said.
The court after hearing both sides, remarked on the long pendency of the cases and said that when High Courts stray outside the limits with reference to certain principles as had been laid down in the decision which the court had referred to, it could be corrected.
“Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter,” the court said.
The court was also of the view that the principles laid down in Radha Krishan Industries v State of HP needed to be kept in mind.
Towards the end, the court disposed of the matter while allowing the appeal partly, in the following terms:
“We have noticed that it is not a case where the Court has found that there is a violation of the fundamental rights as such. In the matter of interfering with the survey, what essentially weighed with the Court is the report of the JPC. Apart from the same, we are not able to find anything else in the judgment as forming the basis for setting aside the list dated 13.11.2003. No doubt, the aspect relating to the constitution of the Board is another matter. It clearly is not a case where there is a complete absence of jurisdiction as it is not the case of the petitioners that the Survey Commissioner was not having authority to carry out the survey."
Case Title: Maharashtra State Board of Wakhs Vs. Shaikh Yusuf Bhai Chawla & Ors.
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