# Committee Of Managemant of Waqf v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-20
- **Case number:** Writ-C No. 26916 of 2023
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-managemant-of-waqf-v-state-of-u-p-ors-49513
- **Pages:** 19

## Headnote

Civil Law - Waqf Act, 1995- Section 67Whenever the supervision or management of a
wakf is vested in any committee appointed by
the wakf- it may continue to function until it is
superseded by the Board -or until the expiry of
its term- on having satisfaction that the action
of the committee is inconsistent to the scheme
for the management of the Wakf-the power of
Section 67 of the Act can be exercised for
supervision of a committee-it can safely be
accepted that the Board is having a power to
appoint a committee for management of the
affairs of the Wakf -and it may be treated as a
Mutawalli-power is vested with the Board to
appoint
a
committee
-in
case
of
mismanagement- action may be taken for
removal as per the procedure u/s 64 of the Act-
while passing the impugned order -the Board
has not proceeded in consonance - that a
Committee is not functioning properly and
satisfactorily- or that the wakf is being
mismanaged and supersede such committee-it
was appropriate to the Board to take recourse
under Section 67 of the Act-impugned orders
set aside.
W.P. allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,968 of 63,182. This is a partial read: ask again with offset=39968 for what follows._

700 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 12 ILRA 700
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.11.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No. 26916 of 2023

Committee Of Managemant of Waqf
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pradeep Kumar Sharma, Sri Amit
Saxena (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Amit Kumar Srivastava, Sri Punit
Kumar Gupta, Sri Shashi Nandan (Sr. Adv.)

Civil Law - Waqf Act, 1995- Section 67Whenever the supervision or management of a
wakf is vested in any committee appointed by
the wakf- it may continue to function until it is
superseded by the Board -or until the expiry of
its term- on having satisfaction that the action
of the committee is inconsistent to the scheme
for the management of the Wakf-the power of
Section 67 of the Act can be exercised for
supervision of a committee-it can safely be
accepted that the Board is having a power to
appoint a committee for management of the
affairs of the Wakf -and it may be treated as a
Mutawalli-power is vested with the Board to
appoint
a
committee
-in
case
of
mismanagement- action may be taken for
removal as per the procedure u/s 64 of the Act-
while passing the impugned order -the Board
has not proceeded in consonance - that a
Committee is not functioning properly and
satisfactorily- or that the wakf is being
mismanaged and supersede such committee-it
was appropriate to the Board to take recourse
under Section 67 of the Act-impugned orders
set aside.
W.P. allowed. (E-9)

List of Cases cited:

1. Babubhai Muljibhai Patel Vs Nandlal Khodidas
Barot & ors. (1974) 2 SCC 706

2. Radha Krishan Industries Vs St. of H.P. (2021)
6 SCC 771

3. K.S. Rashid and Son Vs Income Tax
Investigation Commission, AIR 1954 SC 207

4. Sangram Singh Vs Election Tribunal, AIR 1955
SC 425

5. Union of India Vs T.R. Varma, AIR 1957 SC
882

6. St. of U.P. Vs Mohd. Nooh, AIR 1958 SC 86

7. K.S. Venkataraman and Co. (P) Ltd. Vs St. of
Madras, AIR 1966 SC 1089

8. Rajasthan St. Electricity Board, Jainpur Vs
Mohan Lal & ors., AIR 1967 SC 1857

9. St. of U.P. Vs Neeraj Awasthi & ors., (2006) 1
SCC 667

10. Dwarkadas Marfatia and Sons Vs Board of
Trustees of the Port of Bombay, (1989) 3 SCC
293

11. St. of Himachal Pradesh Vs Raja Mahendra
Pal & ors., (1999) 4 SCC 43

12. Nasiruddin & ors.Vs Sita Ram Agarwal,
Appeal (Civil) No.5077 of 1998 decided on
28.01.2003

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

1. Heard Sri Amit Saxena, learned
Senior Advocate assisted by Sri Pradeep
Kumar Sharma for petitioner; Sri Ambrish
Shukla, learned Additional Chief Standing
Counsel alongwith Sri Fuzail Ahmad
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
701
Ansari, learned Standing Counsel for the
State respondent nos.1 to 3; Sri Punit
Kumar Gupta, learned counsel for U.P.
Sunni Central Waqf Board, Lucknow
(respondent nos. 4 & 5) and Sri Shashi
Nandan, learned Senior Advocate assisted
by Sri Amit Kumar Srivastava, learned
counsel for the contesting respondent no.6.

2. Pleadings have been exchanged and
with the consent of learned counsel for the
parties, this writ petition is being finally
disposed of under the Rules of the Court.

3. Present Writ Petition under Article
226 of the Constitution of India is preferred
with request to issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
26.07.2023 passed by the "U.P. Sunni
Central
Waqf
Board,
Lucknow"
(hereinafter referred to as the 'Waqf Board'
for the sake of brevity) and consequential
Office Memorandum (hereinafter referred
to as the 'OM' for the sake of brevity)
dated 31.07.2023, issued by the Assistant
Secretary of Waqf Board.

4. The present writ petition pertains to
management of a Waqf property known as
"Waqf-Alal-Khair",
Waqf
No.856
Moradabad/Amroha,
which
is
duly
recorded in the record of Waqf Board. The
question involved in the present writ
petition lies in a narrow compass. Few
facts, however, need mention to appreciate
the same.

5. As per earlier order dated
10.02.2015 passed by the Waqf Board, a
Committee was appointed in exercise of
powers conferred under Section 67 of the
"Waqf Act, 1995" (hereinafter referred to
as "the Act" for the sake of brevity) by
which Aslam Hussain (petitioner) was
appointed as President of the Committee
consisting with 10 other members to
manage the affairs of the said Waqf for a
period of three years. Thereafter, the said
order was notified by the Assistant
Secretary of the Waqf Board vide OM
dated 23.03.2015. As the term of the
petitioner Committee was about to expire
on 22.03.2018, it applied for extension of
its term. The Chairman of the Waqf Board
vide his order dated 06.03.2018 had
extended the period of the Committee of
Management for a further period of three
years w.e.f. 10.2.2018.

6. The said order was challenged by
one Mobin Shah before the U.P. Waqf
Tribunal, Lucknow, which was registered
as
Waqf
Petition
No.19
of
2018
(Mohammad Mobin Shah vs. U.P. Sunni
Central Board of Waqfs and two others) on
the ground that the Waqf Board had failed
to apply its judicious mind to the entire
facts and circumstances of the case and
relied upon the report submitted to it by an
officer without giving any opportunity of
hearing to Mohd. Mobin Shah. The said
order was also challenged on the ground of
wrong findings. The main plank of
argument was that the said order was
passed against the will and wishes of Waqif
and the appointment of the Committee by
the Board as per order dated 06.03.2018
was not fair and reasonable. The same
could not sustain in view of provisions
contained under the Act and therefore, the
order of appointment of the Committee was
also liable to be set aside. The Waqf
Tribunal vide order dated 13.03.2020 had
allowed the waqf petition and set aside the
order dated 06.3.2018 passed by the
Chairman of the Waqf Board and remitted
back the matter to the Board to pass the
speaking order, after giving opportunity to
the parties. While remitting the matter, in
702 INDIAN LAW REPORTS ALLAHABAD SERIES
order to fill up the vacuum in the
administration of the Waqf, the Waqf
Tribunal further observed that the parties
shall maintain status quo as on the said
date, and till finalization of the proceeding.
The Waqf Board upon remand had
reconsidered the entire matter and passed
detailed order on 13.6.2022.

7. It is relevant to indicate here that
prior to passing an order dated 13.6.2022
the Circle Inspector was also directed to
conduct a fact finding enquiry vide an order
dated 25.6.2021 passed by the Chairman of
the Waqf Board. The Circle Officer/
Executive
Officer
had
accorded
an
opportunity to Mobin Shah and Aslam
Hussain (petitioner) and submitted its
report on 25.8.2021. The parties had also
submitted their written arguments in the
said proceeding. By an order dated
13.06.2022 the Waqf Board had passed an
order and approved the claim set up by the
petitioner Committee for further five years.
In the said proceeding, Mobin Shah had put
up his claim that he is Sajjadanashin of the
Dargah and also belongs to the same Fakir
community of Bhure Khan, whose Mazaar
(waqf) was created and therefore, he had
better rights to manage the waqf. The
claims set up by Mobin Shah were rejected
by the Board on 13.06.2022. Relevant
portion of the order is extracted herein
below:-

"So far as, the claim of Aslam
Hussain is concerned, the record of the
Board reveals that during his tenure, the
income of the Waqf has been increased
substantially and in the Financial Year
2019-2020, the income of the Waqf has
been
shown
as
Rs.14,19,111/-
and
contribution of the board has been paid
regularly and his committee has also
maintained the Waqf and Mazar by
constructing the boundary wall and gate,
Wazukhana, Toilet, Water Tank and Main
Gate after taking permissions from the
Board vide Office Memorandum dated
18.03.2021. In view of the above, the
appointment of 10 members managing
committee under the Presidentship of Mr.
Aslam Hussain is in the interest of Waqf.

In view of above, we do not find
the claim of Mobin Shah to appoint his 3members committee in the interest of
Waqf, accordingly, his claim is rejected
and for the management of Waqf No.856,
Moradabad, the following committee under
the Presidentship of Shri Aslam Hussain is
appointed for a period of 5 years.

1.
Aslam Hussain S/o
Zaheer Ali
- President

2.
Wajid Ali S/o Rashid
Hussain
- Secretary
3.
Mohammd
Tayyab
S/o Mohd. Yunus
- Treasurer
4.
Mahir Hussain S/o
Maqsood Hussain
- Member
5.
Najim S/o Zaheer Ali
- Member
6.
Margoob
S/o
Haji
Chhidda
- Member
7.
Jamshed S/o Salik
- Member
8.
Wajid
S/o
Mohd.
Hanif
- Member
9.
Aasid S/o Dhasi
- Member
10.
Afsal
S/o
Talib
Hussain
- Member

All resident of village Sheonali,
Tehsil & District Amroha (U.P.

Chief
Executive
Officer
is
directed to issue Office Memorandum
accordingly."

8. Thereafter, the Chief Executive
Officer, Waqf Board has also made
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
703
publication vide OM dated 15.6.2022,
which is extracted herein under:-

"The U.P. Sunni Central Waqf
Board having considered the matter at
length, vide it's order dated 13.06.2022 has
rejected the claim of Sri Mobin Shah to
appoint his 3 member committee to manage
the affairs of Waqf Mazar Bhoorey Khan
Shaheed situated at Qasba Sheonali,
District Amroha, Waqf No.856-Moradabad
(Amroha) as his claim for appointing his
proposed
three
member
managing
committee is not found to be in the interest
of the waqf. Further the Board vide the
same order dated 13.06.2022 has appointed
the following Committee to manage the
affairs of the above waqf for a period of
five years:-

1.
Aslam Hussain S/o
Zaheer Ali
- President
2.
Wajid Ali S/o Rashid
Hussain
- Secretary
3.
Mohammd
Tayyab
S/o Mohd. Yunus
- Treasurer
4.
Mahir Hussain S/o
Maqsood Hussain
- Member
5.
Najim S/o Zaheer Ali
- Member
6.
Margoob
S/o
Haji
Chhidda
- Member
7.
Jamshed S/o Salik
- Member
8.
Wajid
S/o
Mohd.
Hanif
- Member
9.
Aasid S/o Dhasi
-Member
10.
Afsal
S/o
Talib
Hussain
- Member

All resident of village Sheonali,
Tehsil & District Amroha (U.P.)."

9. It appears from the record that after
recognizing the petitioner Committee by
the Waqf Board on 13.6.2022, which was
duly published vide OM dated 15.6.2022
the rival Committee/6th respondent had for
the first time appeared before the Waqf
Board
on
20.06.2022
and
filed
an
application dated 06.5.2022 alongwith
election proceedings of the same very date
i.e. 06.05.2022. In the said application, it
was claimed that the Committee is validly
elected Committee to manage the Waqf and
accordingly, his election, which took place
on 06.05.2022, is to be recognized. By the
order impugned dated dated 26.7.2023, the
Chairman
of
the
Waqf
Board
had
withdrawn
the
earlier
order
dated
13.06.2022
by
which
the
petitioner
Committee was recognized and appointed
for a period of five years and also
withdrawn the OM dated 15.06.2022.

10. Sri Amit Saxena, learned Senior
Advocate for the petitioner, invited this
Court's attention to the impugned order and
submitted that the same is patently illegal
and without jurisdiction. Therefore, the
same as well as action taken pursuant
thereto deserves to be quashed and set
aside. He vehemently contended that the
Chairman of the Waqf Board had no
jurisdiction to review his earlier order. He
contended that in the instant case there
existed no ground or eventuality, which
could have justified to recall the earlier
order. He submitted that the main question,
which is to be adjudicated in this writ
petition, is that whether the Chairman can
recall/review his earlier order or not?. He
further argued that the Chairman of the
Waqf Board inhere power under Section 67
of the Act only under certain exigencies for
supervision
and
supersession
of
the
Committee of Management. Even that too,
in absence of procedure provided therein
the said action is unsustainable. The
impugned order had been passed without
adhering the principles of natural justice.
Therefore, the entire action is per se illegal
704 INDIAN LAW REPORTS ALLAHABAD SERIES
and such an order or action pursuant thereto
would be nullity.

11. Learned Senior Counsel further
submitted that once the matter was remitted
back by the Tribunal to the Waqf Board on
13.3.2020, even though the said proceeding
continued for substantial long time i.e. two
years, and meanwhile, the petitioner
Committee was in effective control. After
considering the claim and counter claim set
up by the parties, specially Mobin Shah and
Nanhu Shah, the claims of Mobin Shah and
Nanhu Shah were rejected and petitioner
Committee was accorded approval to run
the management of the Waqf for further
five years. He submitted that in most
arbitrary manner, the Chairman of the
Waqf Board had entertained the alleged
application
dated
06.05.2022
on
20.06.2022, wherein for the first time the
rival Committee had set up its case on the
basis of some alleged election, which took
place on 06.05.2022. In support of his
submission, he has also placed reliance
upon the judgement and order passed in
Haroon Al Rasheed vs. U.P. Sunni
Central Waqf Baord through C.E.O.
&2 ors1 and also heavily relied upon the
order dated 09.11.2022, which was
passed by the Waqf Board in similar
matter in respect of Waqf No.68A,
Allahabad, wherein the Waqf Board itself
had opined and declined to recall its
earlier
order
of
appointment
of
Committee of Management on the ground
that it had no power to review or recall its
previous order. He has also contended
that the Chairman alone could not take
any action in the name of power. It is his
contention that the impugned order dated
26.07.2023, which has been passed by the
Chairman, is not a decision of the Board
and therefore, the impugned order is
illegal and requires to be set aside.

12. Per contra, Shri Shashi Nandan,
learned Senior Advocate for the contesting
respondent no.6 elaborately contended that
the present writ petition is not maintainable
as the impugned order has been passed
under the ambit of the Act and pertaining to
the Waqf matters, the Tribunal is created,
which has ample powers to give relief in
appropriate cases. The facts are disputed
which can only be pressed before the
Tribunal and therefore, the writ petition
under Article 226 of Constitution of India
should not be entertained. He submitted
that once the petitioner has efficacious
remedy, he may approach to the Waqf
Tribunal for appropriate remedy. Even on
merits, the present writ petition is liable to
be dismissed on the ground of concealment
and suppression of relevant material. In the
present matter, prior to passing of the
impugned order the Waqf Board had held
an enquiry and the report was submitted on
25.08.2021. Even though, the same was
confined to the claim set up between the
petitioner
Committee
and
one
rival
Committee headed by Mobin Shah. In the
said proceeding, the Board had accorded
leave to the parties to submit written
submission
on
22.09.2021.
He
had
submitted that in most arbitrary manner,
neither the petitioner nor the Waqf Board
had brought on record the enquiry report
dated 25.8.2021, which also dealt one of
the application, which was moved by the
petitioner (Aslam Hussain) wherein he had
claimed certain rights on the basis of
alleged election proceeding.

13. Sri Shashi Nandan, learned Senior
Advocate further submitted that in the said
election, it was also claimed that the
meeting was convened in the "Sahen of
Mosque" of the Waqf in question in which
a Committee of 10 persons was elected.
The said election was farce as the major
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
705
portion of mosque belonging to the Waqf in
question had already been demolished on
account of widening of the road. Therefore,
there was no possibility of such an election
and without ascertaining these facts, the
Waqf
Board
had
accorded
earlier
recognition to the petitioner Committee. He
submitted that even though in the said
enquiry the petitioner had participated and
also submitted written submission to the
Board. Therefore, it is absolutely incorrect
that no opportunity was given to the
petitioner. He submitted that in fact the
enquiry was conducted by the Senior
Officer of the Board, who visited on the
spot and recorded the statement of parties.
Even the Committee of Management of
Aslam
Hussain
(petitioner)
had
also
participated in the enquiry and recorded his
statement. Thereafter even the notice was
also issued on 07.06.2023 inviting the
written submission. The allegation, that no
notice was given to the petitioner, is
absolutely
baseless
and
deliberately
suppressed these facts to mislead the Court.
The enquiry report dated 29.05.2023 and
the notice dated 07.06.2023 are reiterated,
which are appended alongwith counter
affidavit filed by the contesting respondent.
He submitted that in view of the law laid
down by the Apex Court in K. Jayaram v.
Bangalore Development Authority2; In
Re: Prestige Lights Ltd. v. State Bank of
India3; In Re: Udyami Evam Khadi
Gramodyog Welfare Sastha v. State of
Uttar Pradesh4 and In Re: K.D. Sharma
v. Steel Authority of India Limited5, in
case the petitioner has not made disclosure
of relevant and material facts or the
petitioner is guilty of misleading the Court,
his petition may be dismissed at the
threshold without considering the merits of
the claim. Lastly, he has contended that the
present matter does not relate to a case
under Section 67 of the Act and the
petitioner Committee had submitted a fake
election proceeding and on the basis of fake
proceeding held in the year 2021 the
petitioner Committee was appointed on
13.06.2022. Therefore, the earlier order has
rightly been recalled and there is no
infirmity in the order impugned and the
writ petition is liable to be dismissed.

14. The learned Senior Advocate
while raising an argument that there is an
alternative efficacious remedy available to
the petitioner to seek adjudication from the
Waqf Tribunal, was candid enough to say
that the jurisdiction of the Writ court
cannot be said to be barred. It was argued
that since disputed question of facts arose
for consideration and there was also some
concealment of fact, therefore, Writ Court
was not the appropriate forum to decide the
disputed question of facts.

15. Sri Punit Gupta, learned counsel
for the Waqf Board had submitted that the
waqf in question is purely charitable waqf
and the office of Mutwalli/Chairman is not
an office of profit. Even though there is no
waqf deed providing any appointment of
Mutwalli or Committee and in such cases
the Committee is to be appointed, which is
elected by the local residents where the
waqf is situated. He submitted that in
response
to
the
earlier
order
dated
13.3.2020 passed by the Chairman of the
Waqf Board and submitted its report on
25.07.2021. In the said proceeding the
parties
had
also
submitted
written
arguments on 29.12.2021 and finally, the
Waqf Board had rejected the claim of one
Mobin Shah and passed an order on
13.06.2022
by
which
the
petitioner
Committee was recognized. Once it has
been
brought
into
the
notice
that
meanwhile, the Muslims of the locality
convened a meeting on 06.05.2022 and
706 INDIAN LAW REPORTS ALLAHABAD SERIES
elected a Committee of Management (6th
respondent) to manage the affair of the
waqf. Therefore, in such situation the
Board had an ample power to rectify the
discrepancy and accordingly, the order was
passed giving recognition to the decision of
the local residents, who had elected the
rival
committee
(6th
respondent)
on
06.05.2022 much prior to the appointment
of petitioner Committee on 13.06.2022 and
accordingly, on the basis of previous
enquiry the order impugned was passed and
once the correct position was brought on
record
through
an
application
dated
20.06.2022 and considering the election
proceeding dated 06.05.2022 a Senior
Officer of the Board conducted spot
enquiry. He met with the parties and
recorded their statements including the
statements of Aslam Hussain (petitioner)
and like previous occasions notice was
issued to the parties on 07.06.2022 asking
them to file their written submission. He
reiterates the written statement of Aslam
Hussain, which is brought on record as CA1 to the counter affidavit. Lastly, he
contended that the order dated 13.06.2022
was
passed
without
considering
and
ascertaining the election of the petitioner
Committee by the local residents, where the
waqf is situated. The petitioner had
concealed notice as well as the enquiry
dated 26.07.2022 and for suppression of
these facts the petitioner is not entitled for
any reprieve by this Court. The petitioner
Committee does not derive any right from
deed or scheme of appointment for its
continuance in the management. The order
impugned
does
not
warrant
any
interference and the writ petition is liable to
be dismissed.

16. In order to appreciate the
arguments advanced by the learned counsel
for the parties regarding maintainability of
the writ petition, it would be apt to refer to
certain case
laws, which are being
considered hereinafter.

17. In Babubhai Muljibhai Patel v.
Nandlal Khodidas Barot and others6
Hon'ble Apex Court held that the High
Court is not deprived of its jurisdiction to
entertain a petition under Article 226
merely
because
in
considering
the
petitioner's right of relief, questions of fact
may fall to be determined. In a petition
under Article 226, the High Court has
jurisdiction to try issues both of fact and
law. It was held as under:

"9. ....... A writ petition under
Article 226, it needs to be emphasised, is
essentially different from a suit and it
would be incorrect to assimilate and
incorporate the procedure of a suit into the
proceedings of a petition under Article 226.
The High Court is not deprived of its
jurisdiction to entertain a petition under
Article 226 merely because in considering
the petitioner's right of relief, questions of
fact may fall to be determined. In a petition
under Article 226 the High Court has
jurisdiction to try issues both of fact and
law. Exercise of the jurisdiction is no doubt
discretionary, but the discretion must be
exercised on sound judicial principles.
When the petition raises complex questions
of fact, which may for their determination
require oral evidence to be taken, and on
that account the High Court is of the view
that the dispute should not appropriately be
tried in a writ petition, the High Court may
decline to try a petition ........"

18. Hon'ble Apex Court in Radha
Krishan Industries v. State of H.P.7
examined the question of maintainability of
a writ petition before the High Court even
when there was an alternative remedy
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
707
available under the Goods and Services
Tax Act, 2017 and held as under:-

"25.
In
this background,
it
becomes necessary for this Court, to dwell
on the "rule of alternate remedy" and its
judicial exposition. In Whirlpool Corpn. v.
Registrar of Trade Marks v. Registrar of
Trade Marks, (1998) 8 SCC 1] , a twoJudge Bench of this Court after reviewing
the case law on this point, noted : (SCC pp.
"................................."

27. The principles of law which
emerge are that:

27.1. The power under Article
226 of the Constitution to issue writs can
be exercised not only for the enforcement
of fundamental rights, but for any other
purpose as well.

27.3. Exceptions to the rule of
alternate remedy arise where: (a) the writ
petition has been filed for the enforcement
of a fundamental right protected by Part III
of the Constitution; (b) there has been a
violation of the principles of natural justice;
(c) the order or proceedings are wholly
without jurisdiction; or (d) the vires of a
legislation is challenged.

27.4. An alternate remedy by
itself does not divest the High Court of its
powers
under
Article
226
of
the
Constitution in an appropriate case though
ordinarily, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law.

27.5. When a right is created by a
statute, which itself prescribes the remedy
or procedure for enforcing the right or
liability, resort must be had to that
particular statutory remedy before invoking
the discretionary remedy under Article 226
of the Constitution. This rule of exhaustion
of statutory remedies is a rule of policy,
convenience and discretion.

27.6. In cases where there are
disputed questions of fact, the High Court
may decide to decline jurisdiction in a writ
petition. However, if the High Court is
objectively of the view that the nature of
the controversy requires the exercise of its
writ jurisdiction, such a view would not
readily be interfered with."

19. The Constitution Benches of
Hon'ble Apex Court in K.S. Rashid and
Son
v.
Income
Tax
Investigation
Commission8,
Sangram
Singh
v.
Election Tribunal9, Union of India v.
T.R. Varma10, State of U.P. v. Mohd.
Nooh11 and K.S. Venkataraman and Co.
(P) Ltd. vs. State of Madras12had held
that though Article 226 of Constitution of
India confers very wide powers in the
matter of issuing writs on the High Court,
the
remedy
of
writ
is
absolutely
discretionary in character. If the High Court
is satisfied that the aggrieved party can
have an adequate or suitable relief
elsewhere, it can refuse to exercise its
jurisdiction. The Court, in extraordinary
circumstances, may exercise the power if it
comes to the conclusion that there has been
a breach of the principles of natural justice
or the procedure required for decision has
not been adopted. Therefore, the objections
raised by Sri Shashi Nandan, learned
Senior Advocate are not sustainable and
accordingly, the same stand rejected.

20. The Wakf Board is a statutory
authority established under the Act and is a
"State" within the meaning of Article 12 of
the Constitution. A constitution Bench of
Hon'ble Apex Court in a judgment reported
708 INDIAN LAW REPORTS ALLAHABAD SERIES
as Rajasthan State Electricity Board,
Jainpur v. Mohan Lal & ors13 held "that
the expression "other authorities" in Article
12
of
Constitution
will
include
all
constitutional or statutory authorities on
whom powers are conferred by law. It is
not at all material that some of the powers
conferred may be for the purpose of
carrying on commercial activities". Similar
view, that an authority created by a Statute
is State within the meaning of Article 12,
was considered in a judgment reported as
State of U.P. v. Neeraj Awasthi & ors14
wherein it was held that the U.P.
Agricultural
Produce
Market
Board
constituted by a statute "UP Krishi Utpadan
Mandi Adhiniyam, 1964" is a State within
the
meaning of
Article
12 of
the
Constitution. Since, the Wakf Board is
state, it has to act fairly and reasonably.
Hon'ble Apex Court in a judgment reported
as Dwarkadas Marfatia and Sons v.
Board of Trustees of the Port of
Bombay15 held that the action of a
statutory authority must be reasonable and
taken only upon lawful and relevant
grounds of public interest. Relevant portion
of the judgement is reproduced herein
under:-

"25. Therefore, Mr Chinai was
right
in
contending
that
every
action/activity of the Bombay Port Trust
which constituted "State" within Article 12
of the Constitution in respect of any right
conferred or privilege granted by any
statute is subject to Article 14 and must be
reasonable and taken only upon lawful and
relevant
grounds
of
public
interest.
Reliance may be placed on the observations
of this Court ......... . Where there is
arbitrariness in State action, Article 14
springs in and judicial review strikes such
an action down. Every action of the
executive authority must be subject to rule
of law and must be informed by reason. So,
whatever be the activity of the public
authority, it should meet the test of Article
14. The observations in paras 101 and 102
of the Escorts case [(1986) 1 SCC 264 :
1985 Supp 3 SCR 909] read properly do
not detract from the aforesaid principles."

21. As the Waqf Board exercises the
quasi judicial functions and since such an
order is final, subject to an appeal before
the Wakf Tribunal, it has to be a reasoned
and speaking order as in the appeal, the
correctness of the reasons recorded by the
Board would be required to be examined.
As a quasi- judicial function stands midway
between a judicial and an administrative
function, the primary test is as to whether
the authority alleges to be a quasi-judicial
one, has any express statutory duty to act
judicially in arriving at the decision in
question. Hon'ble Apex Court in State of
Himachal Pradesh v. Raja Mahendra
Pal & ors16 held that if the reply is in the
affirmative, the authority would be deemed
to be quasi-judicial, and if the reply is in
the negative, it would not be. It was held as
under:-

"9. It follows, therefore, that an
authority is described as quasi-judicial
when it has some of the attributes or
trappings of judicial functions, but not all.
This Court in Province of Bombay v.
Khushaldas S. Advani [AIR 1950 SC 222 :
1950 SCR 621] dealt with the actions of the
statutory body and laid down tests for
ascertaining whether the action taken by
such a body was a quasi-judicial act or an
administrative act. The Court approved
the celebrated definition of the quasijudicial body given by Atkin, L.J., as he
then was in R. v. Electricity Commrs.
[(1924) 1 KB 171 : 130 LT 164] in which
it was held:
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
709

"Whenever any body of persons
having
legal
authority
to
determine
questions affecting rights of subjects, and
having the duty to act judicially act in
excess of their legal authority they are
subject to the controlling jurisdiction of the
King's Bench Division exercised in these
writs."

The aforesaid definition was
accepted as correct in R. v. London County
Council [(1931) 2 KB 215 : 144 LT 464]
and many subsequent cases both in
England and in India. Again this Court in
Radeshyam Khare v. State of M.P. [AIR
1959 SC 107 : (1959) 1 MLJ 5 (SC)]
relying upon its earlier decision held:

"It will be noticed that this
definition insists on three requisites each of
which must be fulfilled in order that the act
of the body may be quasi-judicial act,
namely, that the body of persons (1) must
have legal authority, (2) to determine
questions affecting the rights of parties, and
(3) must have the duty to act judicially.
Since a writ of certiorari can be issued only
to correct the errors of a court or a quasijudicial body, it would follow that the real
and determining test for ascertaining
whether an act authorised by a statute is a
quasi-judicial act or an administrative act is
whether the statute has expressly or
impliedly imposed upon the statutory body
the duty to act judicially as required by the
third condition in the definition given by
Atkin, L.J.

***

Relying on paras 114 and 115 of
Halsbury's Laws of England, 3rd Edn., Vol.
11 at pp. 55-58 and citing the case of R. v.
Manchester Legal Aid Committee [(1952)
2 QB 413 : (1952) 1 All ER 480] learned
counsel for the appellants contends that
where a statute requires decision to be
arrived at purely from the point of view of
policy or expediency the authority is under
no duty to act judicially. He urges that
where, on the other hand, the order has to
be passed on evidence either under an
express provision of the statute or by
implication and determination of particular
facts on which its jurisdiction to exercise its
power depends or if there is a proposal and
an opposition the authority is under a duty
to act judicially. As stated in para 115 of
Halsbury's Laws of England, Vol. 11 at p.
57 the duty to act judicially may arise in
widely differing circumstances which it
would be impossible to attempt to define
exhaustively. The question whether or not
there is a duty to act judicially must be
decided in each case in the light of the
circumstances of the particular case and the
construction of the particular statute with
the assistance of the general principles laid
down in the judicial decisions. The
principles deducible from the various
judicial decisions considered by this Court
in Khushaldas S. Advani [AIR 1950 SC
222 : 1950 SCR 621] at p. 725 (of SCR) :
(at p. 260 of AIR) were thus formulated".

22. The grievance of the petitioner is
that the Chairman of the Waqf Board had
no powers to dissolve the earlier Managing
Committee or to appoint a new Managing
Committee in its place. Learned Senior
Counsel for the petitioner had pointed out
the provision of Section 67 of the Act. It
also transpires from the record that initially,
proceedings were initiated qua the Waqf in
question in the year 2015 under Section 67
of the Act. The Waqf Board had finalized
the proceeding vide order dated 10.02.2015
and
the
petitioner
Committee
had
superseded
the
earlier
Managing
Committee and accorded approval for
710 INDIAN LAW REPORTS ALLAHABAD SERIES
running the affairs of the Waqf for a period
of three years. It is undisputed that the
petitioner Committee was in effective
control of the Waqf and later on, the term
of the petitioner committee was further
extended for a period of three years vide an
order dated 06.03.2018. The said extension
was objected by Mobin Shah and Nanhu
Shah. They challenged the order dated
06.03.2018 before the U.P. Waqf Tribunal,
Lucknow, which was allowed by the Waqf
Tribunal vide an order dated 13.03.2020
and the matter was remanded back to the
Waqf Board for fresh decision after hearing
to all the parties concerned.

23. In the present matter, no material
has been placed before us to substantiate
that the rival Committee had ever agitated
against the continuance of the petitioner
Committee since 10.02.2015. In response
to the order of the Waqf Tribunal dated
13.03.2020 the Waqf Board had considered
rival claims and accepted the claim set up
by the petitioner Committee regarding its
election,
which
was
accorded
due
recognition by the Waqf Board on
13.06.2022
and
accordingly,
the
publication was also made vide OM dated
15.06.2022. Even though, the matter was
remanded back by the Waqf Tribunal on
13.03.2020 and proceeding before the
Waqf Tribunal continued for substantial
long two years. Even in the said
proceeding, at no point of time the rival
claimant had ever set up its case. Only
after passing an order of extension of
five years of the Waqf Board, the
alleged claim was set up by the 6th
respondent and for the first time, he
appeared before the Waqf Board on
20.06.2022. On the said date, he filed an
application dated 06.05.2022 and set up
his case on the basis of election dated
06.05.2022.

24. In para 12 of the counter affidavit,
which was filed by the Waqf Board, it is
averred that once the election proceeding
dated 06.05.2022, which was set up by the
6th respondent, has been brought into the
notice of the Waqf Board, then the Senior
Officer of the Board conducted spot
enquiry. He met with the parties and
recorded their statements including the
statement of Aslam Hussain (petitioner).
The notice was issued to the parties on
07.06.2023 asking them to file their written
submissions. We have occasion to have a
glance of the averments contained in para12 of the said counter affidavit and the
same is reproduced herein under:-

"12. The contents of paragraphs
12, 13 & 14 of the writ petition are false
and incorrect hence vehemently denied.
The petitioner has deliberately suppressed
the relevant facts from this Hon'ble Court.
The correct position is that upon the
application
dated
20.06.2022
and
considering the election proceedings dated
06.05.2022 a Senior Officer of the Board
conducted spot enquiry. He met with the
parties and recorded their statements
including the statement of Aslam Hussain
and like previous occasion, notice was
issued to the parties on 07.06.2023 asking
them to submit their written submissions.
Copy of statement of Aslam Hussain is
enclosed herewith as Annexure No.CA 1."

25. We are surprised that while filing
the aforesaid counter affidavit it is claimed
that the notice was given to the parties on
07.06.2023 but the same is not appended
alongwith the counter affidavit. Only a
copy of the statement of Aslam Hussain
(petitioner) in Urdu alongwith translated
copy of the statement (Hindi) is appended
alongwith the counter affidavit and the
same is also reproduced herein under:-
12 All. Committee of Management of Waqf Vs. State of U.P. & Ors.
711

" असलम हुसैन वल्द जनाब जहीर अली साहब
शाकिन ग्राम शोनाली तहसील व कजला अमरोहा ने अपना बयान
कदया कि मुससलीन िे जररए दाकिल कशिायती दिास्त में जो कलिा
है कि मेरे जररए दाकिल िायसवाही व एजेण्डा िे बारे में फजी कलिा
है वो गलत है उसिा हिीित से िोई ताल्लुि नहीं है इस
िायसवाही में दजस सारे दस्ति असल है और इस समेटी िे इत्तिाप में
आवाम िी मनसा शाकमल थी दूसरी कशिायत यह कि िी नाकजम
और एहसान मेरे चचेरे भाई नहीं हैं अन्यथा ररस्ते िे दूर िे भाई होते
है। इस गााँव में 60% तिस कबरादरी है और 20% जिैव और
प्रजापकत और 20% बाबसर तपिे और फिीर कवरादरी िे है और
इस फिीर कबरादरी में ही वक्फ नमामा िब्जा िर रिा था इसकलए
उनिो िमेटी में शाकमल नहीं किया गया था यह लोग िमेटी िो
हमेशा नुिशान पहुाँचाते रहे है और अवामी वक्फ िो नुिसान
पहुाँचाने िी िोकशश िरते रहते हैं इस वक्फ िा मुिरल इकन्तजाम व
इन्सराम िमेटी ही िरती है वक्फ से होने वाली आमदनी िो वक्फ
मजार व मकस्जद पर रगाई पोताई और सफाई िे इस्तेमाल में लाया
जाता है किसी जायरीन िे साथ िोई बदसलूिी नहीं िी जाती है
िमेटी िे जररए वक्फ िे इकन्तजाम में तावु देने िे कलए रिा गया
स्टाप जायरीन िी किदमत िरते है और चपरासी वगैरह उनिो मुक्त
में देते है। दरगाह में बराबर कतलावत होती है िमेटी में दो हाकफज
शाकमल है और इमाम साहब भी बराबर दरगाह पर कतलावत िरते हैं
वक्फ से होने वाली आमदनी िा पूरा लेिा-जोिा िमेटी िे पास
रहता है वक्फ आमदनी वक्फ िी आमदनी िो िुदस-बुदस नहीं किया
जाता है इसा पूरा इमानदारी िे साथ आकडट िरािर मुतालवा बोडस
अदा किया जाता है और बोडस से दिास्त है कि िमेटी िे किलाफ
लगाये गये सारे इल्जाम फजी बेबुकनयाद है कलहाजा दिास्तों िो
िाररज किया जाय़।

बयान पढ़िर दस्ति किये।"

26. Much emphasis has been placed
by Sri Punit Kumar Gupta, learned counsel
for the Waqf Board on the basis of
averments contained in para-15 of the
counter affidavit and the same is also
reproduced herein under:-

"15. The contents of paragraph
24, 25, 26 & 27 of the writ petition are
based upon misconception of law and false
hence vehemently denied. Section 17 (1) of
the Waqf Act, 1995 empowers the Board to
convene a meeting of the Board for its dayto-day working. This section is not
applicable over the controversy in hand.
The order dated 13.06.2022 was passed
without considering and ascertaining the
election of the petitioner's Committee by
the local residents where the waqf is
situated. The notice as well as the enquiry
dated 26.07.2022 has been concealed by
the petitioner from this Hon'ble Court and
for suppression of these facts the petitioner
is not entitled for any relief from this
Hon'ble Court. The committee represented
by
respondent
no.6
is
entitled
for
management of the Waqf in question. The
petitioner's committee does not derive any
right from any deed or scheme of
appointment
for
its
continuance
in
management. The Office of Mutawalliship
is not an office of profit. The petitioner has
also not disputed the impugned order that
petitioner's committee is a committee of
outsiders and has also not been elected on
spot by local residents therefore, petitioner
is not entitled for any relief. The order
dated 26.07.2023 has been passed in
accordance with law considering the
desire/inclination of the local residents
where the Waqf is situated."

27.