Income Tax v. Wp(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR& THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 10 DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944WP(C) NO. 4645 OF 2023 PETITIONERS: 1MOHAMMED ABBAS K.P,AGED 63 YEARSS/O. ABDUL KHADER K.P., KOROTH POIL HOUSE, POST VATTOLI BAZAR, BALUSSERI, KOZHIKODE, PIN - 6736122ABDUL SAMAD P.V, AGED 62 YEARS S/O. ABDUL KHADER K.P., S/O. ABDULLA, PUTHANVEETIL NADUVILAKKANDIYIL HOUSE, BALUSSRI POST, KOZHIKODE, PIN - 673612BY ADVS.P.B.SUBRAMANYANP.B.KRISHNANSABU GEORGEMANU VYASAN PETER RESPONDENTS: 1THE KERALA STATE WAKF BOARDREPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, PIN - 6820172BALUSSERI MAHALLU JAMA-ATHVATTOLI BAZAR P.O., BALUSSERI, KOZHIKODE, VATTOLI BAZAR P.O., BALUSSERI, KOZHIKODE, REPRESENTED BY ITS INTERIM MUTHAWALLI, SRI.JAFFAR.M.K., PIN - 6736123MUHAMMED HASHIM A,ADVOCATE COMMISSIONER, BALUSSERI MAHALLU JAMA-ATH, MANKUZHY ROAD, MNRA 11, EDAPPALLY TOLL, ERNAKULAM, PIN - 6820244MUHAMMED HAROON A.N ADVOCATE COMMISSIONER, BALUSSERI MAHALLU JAMA-ATH, POST VATTOLI BAZAR, BALUSSERI, KOZHIKODE, PIN - 673612BY ADV SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: “C.R.” A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C. P., JJ---------------------------------------------- WP(C)No.4645 of 2023 --------------------------------------------- Dated this the 10[th]day of February, 2023 JUDGMENT Mohammed Nias.C.P. J. Petitioners are members of the Balusseri Mahallu Juma-ath. They submit that election to the juma-ath was being done under thesupervision of the Advocate commissioners appointed by this Court,which permitted the Advocate Commissioners to make suitabledeletions/addition to the voter's list. They also submit that theelection has to be conducted in terms of Ext.P1 bye-law. However,when the draft voters list was published by the AdvocateCommissioners, petitioners made two objections, namely 79 personswho were from outside the Mahallu were included, which they allegeto be a violation of clause 4 of the bye-law. That apart, 154 personswho had no affiliation with the Kerala Naduvathul Mujahideen (KNM), which is the parent organization of the first respondent juma-ath hasbeen included in the list, which is a contravention of clause 7 of thebye- law. Since these objections were summarily rejected, petitionershave instituted this writ petition quashing Exts.P8 and P9 that rejected their objections and also for a direction to the AdvocateCommissioners to redraw the draft voters list after accepting theobjections raised by the petitioners 2.We find that the prayers made in the writ petition involve adispute on the factual aspects, which need not be considered in theabove writ petition. That apart, the petitioners have an alternateefficacious remedy to approach the wakf Tribunal, which has given allthe powers to consider any disputed questions relating to the wakf.The said Tribunal has all the trappings of the civil court. In suchcircumstances, we are not inclined to accept the contention of thelearned counsel for petitioners that since the Advocate Commissionerswere appointed by this Court, they have invoked the jurisdiction of thisCourt, as the same can never be a reason for us to entertain this writpetition, which has factual questions alone to be decided. 3.As held by the Supreme Court in Commissioner of 2.We find that the prayers made in the writ petition involve adispute on the factual aspects, which need not be considered in theabove writ petition. That apart, the petitioners have an alternateefficacious remedy to approach the wakf Tribunal, which has given allthe powers to consider any disputed questions relating to the wakf.The said Tribunal has all the trappings of the civil court. In suchcircumstances, we are not inclined to accept the contention of thelearned counsel for petitioners that since the Advocate Commissionerswere appointed by this Court, they have invoked the jurisdiction of thisCourt, as the same can never be a reason for us to entertain this writpetition, which has factual questions alone to be decided. 3.As held by the Supreme Court in Commissioner of Income Tax v. Chhabil Dass Agarwal[(2014) 1 SCC 603], the non-entertainment of a writ petition under Article 226 of the Constitutionof India when an efficacious alternate remedy is available is a rule andself-imposed restriction. It is essentially a rule of policy, convenience,and discretion rather than a rule of law. Again in AuthorisedOfficer, State Bank of Travancore v. Mathew K.C.[(2018)3 SCC 85) referring to the earlier judgments of the Apex Court , it was heldthat High Court will not entertain a petition under Article 226 of theConstitution of India if an effective alternative remedy is available tothe aggrieved person or the statute under which the action complainedof contains a mechanism for redressal of grievance. Therefore, when astatutory forum is created by law for the redressal of grievance, a writpetition should not be entertained, ignoring statutory dispensation.Further, in cases where there are disputed questions of fact, the Highcourts normally decide to decline jurisdiction in a writ petition. In Cityand Industrial Development Corporation v. Dosu AardeshirBhiwandiwala and others [(2009) 1 SCC 168] Supreme Court heldthat the court, while exercising its jurisdiction under Article 226 of theConstitution of India, is duty bound to consider whether the petitionerhas any effective alternate remedy for the resolution of the dispute. Thus, a reading of all the above judgments makes it clear that it is onething to say that in the exercise of the power vested in it Article 226 ofthe Constitution, the High Court can entertain a writ petition againstany order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, but it is an altogether different thing to saythat each and every petition filed under Article 226 of the Constitutionof India must be entertained by the High court as a matter, of course,ignoring the fact that the aggrieved person has an effective alternate remedy. remedy. 4.We have already held in WP(C)No.3964 of 2023 a statutorymechanism is created under the Act, and we feel that any dispute,question, or other matters whatsoever relating to a wakf property canbe decided effectively by the wakf Tribunal. No doubt, the alternateremedy is not an absolute bar for filing the writ petition, but at thesame time, it is well settled that writ jurisdiction is a discretionaryjurisdiction, and when there is an efficacious alternate remedy, ordinarily, a party must resort to that remedy first before approachingthis Court. Entertaining a writ petition straight away without insistingthat a party should avail alternate remedy is an over-liberal approachthat is causing immense difficulties to the high court, adding to thehuge arrears. That apart, these are disputed questions of facts to bedecided by the bodies created under the Wakf Act and time has comefor this Court to stop entertaining writ petitions seeking directionsrelating to a wakf and to insist that the party should first approach theauthorities under the Act. When the legislature has provided for astatutory mechanism, the high court ought, under normalcircumstances, to refer to the statutory scheme. We do not find anyreason at all for entertaining this writ petition, more so when nothingis pleaded or shown as to why the alternate remedy available is notefficacious. The writ petition is dismissed without prejudice to the rights ofthe petitioner to avail of the alternate remedy. Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE Sd/- MOHAMMED NIAS C.P., JUDGE dlk/10.2.2023 APPENDIX OF WP(C) 4645/2023 PETITIONERS EXHIBITS