Dipankar Datta, J.@mdash1. This writ petition, presented before this Court on 24th November, 2015, is at the instance of a trust registered under the Bombay Public Trust Act, 1950, and one of its several managing trustees.
2. The case run by the petitioners in the writ petition is that by virtue of a registered deed of gift (hiba-bil-ewaz) dated May 3, 1927 executed by her husband Hajee Sidick Jamal (since deceased), Jainub Bai Hajee Joosub (since deceased), a member of Khoja Sunnat community, became absolutely seized and possessed of or otherwise well and sufficiently entitled to the land, hereditaments and premises admeasuring 12 cottahs, 13 chittacks and 13 square feet situate at and being premises No. 4C, Auckland Square, Calcutta, now known as ''Benjamin Moloise Square'' (hereafter the property), and constructed a two-storied brick built building and one storied out-office on a portion thereof. Jainab Bai Hajee Joosub (hereafter the waqif) had executed a waqf deed on 20th February, 1938, in terms whereof she would be the first mutawalli during her life time. After her demise, her husband and son (Mohammed Sidick Jamal, since deceased) shall become the next mutawalli in succession and thereafter, mutawalli would be elected amongst the male and female beneficiaries'' as per the procedure laid down in the waqf deed. If no successor survives, the property shall be administered by the committee, the first petitioner, for the benefit of the poor Mussalman members of the trust. There being no survivor in the family of the wakif at present, as per the waqf deed, the property should have been allowed to be administered by the first petitioner.
3. It is the grievance of the petitioners that on 21st March, 2006, the Board of Auqaf (hereafter the Board) having taken over the management of the property in exercise of power conferred by section 65 of the Waqf Act, 1995 (hereafter the Act) dehors the legislative mandate requiring exercise of powers by the Board in conformity with the directions of the waqif and the purposes of the waqf as well as in utter violation of the directions given by the waqif in the waqf deed relating to administration of the property by the first petitioner, decided on 20th February, 2014 to develop the property and to transfer the property on its development. For such purpose, on 8th April, 2014, a development agreement was executed by and between the Board and T.M. Construction Company, a firm of the fifth respondent. It is the further grievance of the petitioners that the Board has continued direct management of the property beyond the aggregate period of five years stipulated in sub-section (1) of section 65 of the Act and has utterly mismanaged the affairs and administration of the property. They are also aggrieved because by the impugned development agreement, virtually 50% of right, title and interest of the property have been transferred to the fifth respondent including the right to enjoy rents, profits, usufructs, etc. in utter contravention of the provisions of section 104A of the Act which expressly bars transfer of waqf property.
4. It has, accordingly, been prayed as follows:
"a) A writ of or in the nature of Mandamus do issue commanding the respondent No. 1 to cancel, withdraw, rescind and/or revoke the said purported development agreement dated 8th April, 2014 executed between the respondent No. 1 and the respondent No. 5 for development of the said waqf property on joint venture basis forthwith and to act in accordance with law;
b) A writ of or in the nature of Mandamus do issue commanding the respondent No. 1 to appoint the petitioner No. 1 as the Mutawalli in respect of the Jainub Bai Hajee Joosub Waqf Estate situate at and being the said premises No. 4C, Auckland Square (now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 forthwith and to act in accordance with law;
c) A writ of or in the nature of Mandamus do issue commanding the respondent No. 1 to deliver to the petitioner No. 1 an authenticated clean copy of the Deed of Waqf dated 20th February, 1938 made by Jainub Bai Hajee Joosub and to preserve the original of the said Deed of Waqf in the safe custody of the respondent No. 1.
d) A writ of or in the nature of Mandamus do issue commanding the respondent No. 1 to deliver up the management and administration of the said waqf property to the petitioner No. 1 in accordance with the directions of the waqif contained in the said Deed of Waqf dated 20th February, 1938 as stipulated under Section 32 of the Waqf Act, 1995 and to act in accordance with law;
e) A writ of or in the nature of Mandamus do issue commanding the respondent No. 5 to cancel the mutation of the said waqf property forthwith and mutate the name of the petitioner No. 1 in the municipal assessment record in respect of the said waqf property situate at premises No. 4C, Auckland Square (now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 and to act in accordance with law;
f) A writ of or in the nature of Prohibition do issue forbearing the respondent No. 1 from giving any effect and/or further effect to the purported development agreement dated 8th April, 2014 executed between the respondent No. 1 and the respondent No. 5 for development of the said waqf property on joint venture basis in any manner whatsoever till the disposal of the instant writ petition;
g) A writ of or in the nature of Prohibition do issue forbearing the respondent No. 1 from giving any effect and/or further effect to the purported regularization of the unauthorised and illegal occupancies of the trespassers in the said waqf property situate at and being the said premises No. 4C, Auckland Square (now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 in any manner whatsoever till the disposal of the instant writ petition;
h) A writ of or in the nature of Prohibition do issue forbearing the respondent No. 1 from taking any step and/or further steps pertaining to the management and administration of the said Jainub Bai Hajee Joosub Waqf Estate situate at and being the said premises No. 4C, Auckland Square (Now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 in any manner whatsoever till the disposal of the instant writ petition;
i) A writ of or in the nature of Prohibition do issue forbearing the respondent No. 1 from give (sic giving) any effect and/or further to the unauthorised and illegal occupancies of the trespassers in the said waqf property situate at and being the said premises No. 4C, Auckland Square (now known as premises No. 4C, Benjamin Moloise Square), Kolkata - 700 017 in any manner whatsoever till the disposal of the instant writ petition;
j) A writ of or in the nature of Certiorari do issue commanding the respondents to certify and transmit to this Hon''ble Court the records of the impugned proceedings particularly those relating to the purported assumption of the direct management of the said waqf property as also those relating to the execution of the said purported development agreement dated 8th April, 2014 executed between the respondent No. 1 and the respondent No. 5 for development of the said waqf property on joint venture basis so that the same may be quashed and/or conscionable justice may be done to them;
k) Declaration that the purported assumption of direct management of the said waqf property by the respondent No. 1 for a period of eight years in the aggregate was bad, without jurisdiction, made in colourable exercise of power and de hors the provisions of the Section 65 of the Waqf Act, 1995;
l) Declaration that the purported exercise of the powers and functions by the respondent under the Waqf Act, 1995 were/are completely contrary to and not in conformity with the directions given by the waqif in the said Deed of Waqf dated 20th February, 1938 and the purposes behind the creation of the waqf in respect of the said waqf property;
m) Declaration that the said purported development agreement dated 8th April, 2014 executed between the respondent No. 1 and the respondent No. 5 for development of the said waqf property on joint venture basis is null and void ab-initio and non est in the eye of law;
***"
5. A preliminary objection to the maintainability of the writ petition has been raised by Mr. Razzack, learned senior advocate for the fifth respondent. Attention of this Bench was invited by him to the decision of the Supreme Court in Board of Wakf, West Bengal v. Anis Fatma Begum, reported in , (2010) 14 SCC 588, wherein it has been ruled that all matters pertaining to a waqf should be filed at the first instance before the Waqf Tribunal, and should not be entertained by the civil court or the High Court straightaway under Article 226 of the Constitution of India. Reliance was also placed on an unreported decision of a coordinate bench in W.P. No. 6923(W) of 2011 (Musst. Hazera Khatoon v. The State of West Bengal & ors.) decided on 19th April, 2011 as well the decision of this Bench in Ameeruddin Ahmed v. Board of Wakfs, West Bengal reported in , 2013(4) CHN (CAL) 701, wherein Anis Fatma (supra) was followed while holding that the Waqf Tribunal alone has the jurisdiction at the first instance to decide any dispute or question relatable to a waqf or waqf property. According to him, since the dispute in the present case indubitably relates to a waqf property, the petitioner''s remedy is to approach the Waqf Tribunal first and the jurisdiction under Article 226 may not be exercised at this stage.
6. The preliminary objection was countered by Mr. Datta, learned senior advocate for the petitioners by contending that the decision in Anis Fatma (supra) cannot be appreciated ignoring the other provisions of the Act and even decisions of the Supreme Court upon interpretation of the Act. According to him, the extent of jurisdiction of the Waqf Tribunal has to be ascertained on a combined reading of sections 83, 84 and 85 of the Act with sections 6, 7, 32(3), 33(4), 35, 38(7), 39(3), 40(2), 40(4), 48(2), 52(4), 54(4), 64(4), 67(4), 67(6) (second proviso), 69(3) (first proviso), 69(5), 72(7) and 73(3) thereof. Since the aforesaid sections provide for the several situations when an aggrieved person may approach the Waqf Tribunal for remedy, sections 83, 84 and 85 of the Act cannot be read as "open ended" to include determination of "any dispute" that is not otherwise provided in the Act for being decided by it. Since the jurisdiction of the Waqf Tribunal is restricted and not plenary in character to include a power to receive any suit or application pertaining to any situation not contemplated in the statute, its jurisdiction has to be ascertained from the above referred sections, and the expression "any dispute, question or other matters relating to Wakf property" in section 83(1) has to be understood in the context of the former.
7. Mr. Datta cited section 51 of the Act as an example. Section 51 underwent an amendment in the year 2013. The omitted sub-section (2) with its second proviso and sub-section (5) thereof, as they stood originally, provided for an approach to the Waqf Tribunal. Though by the same amendment section 51(1A) was added, no remedy was provided to an aggrieved party to approach the Waqf Tribunal with a grievance that alienation of waqf property not in the manner authorized by section 51 should, in a given case, be declared void. He submitted that since the remedy that was earlier available has been taken away by a legislative amendment, it is no longer open to an aggrieved party to approach the Waqf Tribunal with a like grievance and urge that it must decide it.
8. Similarly, sections 32, 53, 56, 58, 59, 63, 65 and 104A of the Act were also referred to by Mr. Datta which do not provide that in cases of grievance arising out of matters dealt with therein, one may approach the Waqf Tribunal. It was contended that the legislature did not intend that matters covered by these sections ought to be decided by the Waqf Tribunal.
9. It was further contended that the impact of the aforesaid sections/crucial words of the legislature were neither argued nor discussed in Anis Fatma (supra), which was decided before amendments were effected in the Act by Act 27 of 2013.
10. Referring to paragraph 7 of the decision in Anis Fatma (supra), it was urged that the Supreme Court having held that any matter relating to a waqf should not be entertained by the civil court or by the High Court straightway under Article 226 of the Constitution of India, the Supreme Court had placed the civil court and the writ court at par. To confer a restricted jurisdiction on the writ court, it can at the most be construed that the writ court''s jurisdiction is only based wherever the civil court''s jurisdiction is based and not beyond.
11. Heavy reliance was placed by Mr. Datta on the decision of the Supreme Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf, reported in , AIR 2010 SC 2897. While considering an issue relating to eviction from waqf property, the Supreme Court held that the bar of the civil court receiving a grievance in relation thereto is not absolute and the expression "other matter" in section 85 of the Act means those which are required by and under the Act to be determined by the Waqf Tribunal. The bar imposed by section 85 of the Act is not absolute, and that the civil court''s jurisdiction is not barred in respect of matters which the Act does not vest authority in the Waqf Tribunal to decide.
12. It was pointed out by Mr. Datta that soon after the decision in Ramesh Gobindram (supra), the legislature amended sub-section (1) of section 83, to include "eviction of a tenant" as a matter over which the Waqf Tribunal would have jurisdiction to decide. Referring to addition of the expression "eviction", it was contended that the same demonstrates that unless the legislature confers jurisdiction, the Wakf Tribunal does not have jurisdiction; in other words, unless the legislature so empowers, the Waqf Tribunal itself cannot take up an issue for its determination.
13. Mr. Datta also relied on the decision in Bhanwar Lal v. Rajasthan Board of Muslim Wakf, reported in , AIR 2014 SC 758, wherein it was once again held that the Waqf Tribunal has jurisdiction in respect of those matters which are required by and under the Act to be determined by it.
14. Mr. Datta asserted that on a careful reading of all the decisions on the point and the sections of the Act referred to above, it cannot be construed that the expression "any dispute, question or other matter relating to a waqf or waqf property" in sections 83(1), 83(2) and 84 of the Act has conferred the Waqf Tribunal with plenary and exclusive jurisdiction to deal with all disputes, questions and matters whatsoever and in whatever manner relating to a waqf or waqf property to the total exclusion of the civil court under section 9 of the Civil Procedure Code. Any conclusion to the contrary, according to him, would lead to chaos and uncertainty because a party would not know which forum to approach.
15. Finally, it was submitted by Mr. Datta that the fundamental point that the power under Article 226 of the Constitution of India cannot be curtailed either by a statute or by a judgment and even by an amendment to the Constitution, has to be taken note of. Power of judicial review being part of the basic structure of the Constitution, it cannot be taken away or curtailed by the decision of the Apex Court in Anis Fatma (supra). Assuming that the Waqf Tribunal has the widest of jurisdiction and the bar to approach the civil court is absolute, even then the power under Article 226 of the Constitution of India cannot be curtailed in any manner and the law laid down therein is contrary to the fundamental principles on the subject laid down by the Supreme Court in various other judgments.
16. Mr. Datta accordingly prayed that the writ petition be heard on merits, overruling the preliminary objection of Mr. Razzack.
17. This Bench has heard learned senior advocates, for and against the objection to the maintainability of the writ petition.
18. It is settled law that unless the jurisdiction of the High Court under Article 226 of the Constitution is expressly ousted, be it by a constitutional provision or by a statutory provision, mere existence of an alternative remedy provided by a validly made law does not have the effect of precluding the High Court to receive a writ petition and try the same. However, since the discretion exercised by the High Court under Article 226 is a judicial discretion, in a given case the High Court may refuse to exercise discretion having regard to the alternative remedy available to the party approaching it. It is not that the writ petition in such a case would not be maintainable before the High Court, but that the High Court may not entertain a writ petition if the grievance could be duly considered by a competent forum provided by such law. It is not a question of maintainability of the writ petition but a question of entertainability thereof that must exercise the consideration of the Bench. It is true, the Supreme Court in Anis Fatma (supra) has made a sweeping observation that no matter pertaining to a waqf or a waqf property should be entertained at the first instance by the High Court; however, reading such observation as a statute would not be proper in view of the several decisions of the Supreme Court itself.
19. This Bench had, while being called upon to decide a preliminary objection of the nature raised by Mr. Razzack to the entertainability of W.P. No. 18804(W) of 2015 (Md. Iftekhar Alam v. The Board of Wakf) in view of the availability of an alternative remedy before the Waqf Tribunal under section 83 of the Act, in its decision dated 10th August, 2015 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."
20. Again, in W.P. No. 29863(W) of 2015 (Golam Mustapha & anr. v. The Board of Wakf, West Bengal), this Bench had the occasion to deal with a similar objection that was raised relying on Anis Fatma (supra) and Musst. Hazera Khatoon (supra) to the entertainability of the writ petition. In the decision dated 22nd December, 2015, it was ruled by this Bench as follows:
"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. 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. v. 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.''
The observation of the Supreme Court in ''Anis Fatma'' (supra), which is in the nature of obiter dictum, thus loses precedential value. 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 v. 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.
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. 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."
21. There is no reason to hold to the contrary on this writ petition. Each case has to be judged on the basis of its own peculiar facts. It is not the law that whenever a writ petition is presented concerning a waqf or a waqf property, the High Court must invariably relegate the aggrieved party to the Waqf Tribunal. Depending upon facts and circumstances of the case, subject matter of challenge and the nature of relief claimed, it would always be within the discretionary jurisdiction of the High Court whether to entertain a writ petition concerning a waqf or a waqf property or not. The decision in Anis Fatma (supra) cannot be decisive in all cases where issues are raised pertaining to a waqf or a waqf property.
22. Bearing the above principles in mind, this Bench proceeds to decide the preliminary objection.
23. First and foremost, the scope and effect of section 83 has to be appreciated. To the extent relevant, section 83 is set out herein below:
"83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.
(2) Any mutawalli or person interested in a waqf 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 waqf.
(3) ***
(4) ***
(5) The Tribunal 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, 1908 (5 of 1908), while trying a suit, or executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.
(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.
(8) The execution of any decision of the tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).
(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 or 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."
24. A bare reading of the above extract shows that while constitution of the Waqf Tribunal and its jurisdiction are provided for by sub-section (1), sub-section (2) identifies "who" can challenge "what" and "how". Sub-sections (5) and (6) lay down the powers of the Waqf Tribunal and the procedure to be followed by it in determining issues that are raised before it. A sense of finality is attached to a decision of the Waqf Tribunal by sub-section (7), whereas sub-section (8) relates to execution of its decision. Although sub-section (9) gives immunity to the decision or an order of the Waqf Tribunal from appellate scrutiny, the proviso confers sufficient power on the High Court to revise such decision or order suo motu.
25. Sections 84 and 85 are also worthy of being noted and are set out hereunder for facility of reference:
"84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision. - Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a waqf or waqf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.
85. Bar of jurisdiction of civil courts.--No suit or other legal proceeding shall lie in any [civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal."
26. One other provision that would require due consideration is section 51. In its new avatar, it reads as follows:
"51. Alienation of waqf property without sanction of Board to be void.--(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:
Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013. (1-A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio:
Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board:
Provided further that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board:
Provided also that-
(a) the acquisition shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991 (42 of 1991);
(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;
(c) no alternative land is available which shall be considered as more or less suitable for that purpose; and
(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired property."
Prior to its amendment by Act 27 of 2013, section 51 read:
"51. Alienation of wakf property without sanction of Board to be void.--(1) Notwithstanding anything contained in the wakf deed, any gift, sale or exchange mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board:
Provided that no mosque, dargah or khangah shall be gifted, sold, exchanged or mortgaged except in accordance with any law for the time being in force.
(2) The Board may, after publishing in the Official Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the wakf, accord sanction to such transaction if it is of opinion that such transaction is-
(i) necessary or beneficial to the wakf;
(ii) consistent with the objects of the wakf;
(iii) the consideration thereof is reasonable and adequate:
Provided that the sale of any property sanctioned by the Board shall be effected by public auction and shall be subject to confirmation by the Board within such time as may be prescribed:
Provided further that the Tribunal may, on the application of the aggrieved mutawalli or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the wakf.
(3) The utilisation or investment of the amount realised by the sale or exchange mortgage of any property shall be made by the mutawalli subject to the approval of the Board, and where any amount has been raised by mortgage of any such property, the mutawalli or other person shall make repayment of the mortgage-debt and obtain a discharge of the mortgage-debt from the mortgage within such reasonable time as the Board may specify.
(4) Every approval given by the Board under sub-section (3) shall be communicated to the mutawalli and shall also be published in the manner prescribed.
(5) The mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under sub-section (3), may, within ninety days from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision, and, thereupon, the Tribunal may, after giving the appellant and the Board, a reasonable opportunity of being heard, confirm, modify or set aside such decision."
27. Considering the narrative of facts in the writ petition, it would appear to be clear that the petitioners have questioned the bona fides of the Board in taking over direct management of the property and retaining management despite lapse of five years, not transferring administration thereof to the first petitioner, entering into a development agreement with the fifth respondent, and transferring right, title and interest in respect of a portion of the property in favour of a private concern. The question that would necessarily emerge for an answer is, whether such questions are capable of being raised before the Waqf Tribunal for a decision by it or not having regard to the eloquent and erudite submissions advanced by Mr. Datta.
28. The contention of Mr. Datta that the Waqf Tribunal has limited jurisdiction only in respect of matters referred to in certain sections of the Act, referred to by him and as noted above, has not impressed this Bench. It is true that the sections referred to by Mr. Datta do refer to situations when the Waqf Tribunal could be approached by an aggrieved party, but it is equally true that while enacting a law the framers thereof are not expected to visualize all situations to which the law would apply in future. As a sequel, it is but natural that all situations that might arise for a decision by the Waqf Tribunal could not be visualized , and that is precisely why sub-sections (1) and (2) are to an extent open-ended without exactly specifying the nature of the order made under the Act, which could be subjected to a challenge before it. The primary concern of the Waqf Tribunal, if approached by any party, must be directed towards satisfaction of the factual position as to whether the dispute is relatable to any waqf or waqf property or not. Once such satisfaction is reached, the Waqf Tribunal is required to determine its jurisdiction with reference to the sections of the Act which specifically makes remedy available thereunder before it. Should the situation before the Waqf Tribunal be covered by any such section, there can hardly be any dispute with regard to its jurisdiction. Difficulty might arise, if the particular situation is not covered by any of those sections. In such case, should the Waqf Tribunal refuse to exercise jurisdiction? The answer cannot possibly, in all cases, be in favour of refusal. Sub-section (2) of section 83 of the Act vests authority in the Waqf Tribunal, to decide "any dispute, question or other matter relating to the waqf" if approached "by any mutawalli or person interested in a waqf or any other person aggrieved by an order made under this Act". Therefore, if an order ostensibly appears to have been made under the Act or the rules framed thereunder pertaining to a waqf or waqf property, notwithstanding that the given situation is not covered by any of the sections referred to by Mr. Datta, the Waqf Tribunal would still have the authority and jurisdiction to examine the dispute or question and decide the same.
29. Insofar as sections 32, 53, 56, 58, 59, 63, 65 and 104A of the Act are concerned, it appears on perusal thereof that these provisions contemplate passing of order(s)/direction(s) by the Board as well as the State Government if the particular situation covered thereby so warrants. That the legislature does not waste words or introduce useless or redundant provisions is settled law. Should there be any order/direction of the nature contemplated by the aforesaid sections and a party feels aggrieved thereby, it is axiomatic that such order/direction may be challenged by the party aggrieved in view of user of "an order made under this Act, or rules made thereunder" in sub-section (2) of section 83 of the Act. It was not necessary to expressly provide in such sections that the remedy before the Waqf Tribunal would be available to a party aggrieved by an order/direction made thereunder, since sub-section (2) of section 83 is sufficient to take care of it.
30. To the mind of this Bench, "determination of any dispute, question or other matter relating to a waqf or waqf property" used in sub-section (1) of section 83 as well as in section 84 as well as "an order made under this Act, or rules made thereunder" used in sub-section (2) of section 83 of the Act read with sections 65 and 51 thereof are wide and expansive to embrace the grievances raised by the petitioners in this writ petition, which can legitimately be raised before the Waqf Tribunal for a decision by it. The decision to take over direct management of the property (under section 65 of the Act) and the decision to develop the property followed by execution of a development agreement (ostensibly under section 51 of the Act) must be construed as included in "an order made under this Act" and, therefore, amenable to challenge before the Waqf Tribunal which has the powers exercisable by a civil court under the Civil Procedure Code to decide the lis.
31. It has to be remembered that the jurisdiction of a writ Court under Article 226 is an extraordinary jurisdiction, which should be exercised sparingly and in fit cases where the party aggrieved has no other remedy available to him. If the general laws of the country or a special law, which is regarded as a self-contained code, provide a remedy that is efficacious and supposedly speedy, it would require a party aggrieved to allege and succeed in his contention that his fundamental right has been breached or that he has been proceeded against in violation of principles of natural justice or that the authority deciding his fate had absolutely no jurisdiction to do so or that it has acted under a statute which is ultra vires, to enable the Court exercise its jurisdiction under Article 226 and issue appropriate writ/order/direction ameliorating his grievance. On facts and in the circumstances of the present case, none of these exceptions appear to be fulfilled.
32. In such view of the matter, the preliminary objection to the entertainability of the writ petition is upheld though for reasons different from the one raised by Mr. Razzack. The petitioners are relegated to the Waqf Tribunal for having a decision on their grievances, in accordance with law, if so advised.
33. The writ petition stands dismissed. Parties shall bear their own costs.
34. The period during which this writ petition was pending on the file of this Bench may be excluded for computing the period of limitation to approach the tribunal. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.
