"Jurisdiction of Review Can Be Derived Only from Statute": Bombay High Court Dismisses Challenge Against Waqf Board CEO's Reversal, Directs Petitioners to Waqf Tribunal
Sanchayita Lahkar
The Bombay High Court at Nagpur, Single Bench of Justice M.S. Jawalkar, dismissed a writ petition challenging the authority of the Chief Executive Officer (CEO) of the Maharashtra State Board of Waqfs to stay a previous change report order. The court directed the petitioners to seek remedy before the Waqf Tribunal, stating that the Tribunal is the competent forum under the Waqf Act, 1995 to address such disputes.
The petition was filed by members of the Jama Masjid Trust, Yavatmal, who were managing the institution registered under the Bombay Public Trust Act, 1950 and subsequently under the Waqf Act, 1995 as Waqf No. M.S.B.W./YTM/124/2013. The previous trustees had passed away, and the petitioners claimed to have lawfully assumed management. They submitted a change report to the Waqf Board.
Respondents Nos. 3 to 13, however, had also submitted a change report and a scheme application without the petitioners' knowledge. These were accepted by the CEO via orders dated 31.05.2013 and 03.06.2013.
Aggrieved, the petitioners approached the Maharashtra State Waqf Tribunal via Waqf Application No.11/2015. The Tribunal, by judgment dated 28.09.2018, set aside the CEO’s order of 31.05.2013 concerning scheme settlement, holding it was beyond his jurisdiction, and remanded the matter to the Waqf Board for fresh consideration.
The Board, in compliance with the Tribunal’s directions, passed Resolution No.56 on 24.01.2024, pursuant to which the CEO rejected the scheme application submitted by Respondents Nos. 3 to 13 and accepted the change report filed by the petitioners via order dated 13.02.2024.
However, on 26.03.2024, the in-charge CEO, Mr. Juned Bashir Sayyad, stayed the operation of the 13.02.2024 order, prompting the present writ petition. The petitioners also argued that Mr. Sayyad’s appointment was itself challenged in another Writ Petition (No. 5272/2024) pending before the High Court.
The petitioners contended that the Waqf Act, 1995 does not confer review powers on the CEO, and hence, the impugned order staying the earlier decision was ultra vires. They cited Kalabharti Advertising vs. Hemant Vimalnath Narichania, (2010) 9 SCC 437, and Patel Narshi Thakershi vs. Shri Pradyumansinghji Arjunsinghji, 1971(3) SCC 844, to argue that review powers must be conferred by statute.
In response, the respondents argued that an effective alternative remedy existed before the Waqf Tribunal, which is functioning in Aurangabad. Relying on Board of Wakf, West Bengal vs. Anis Fatma Begum, (2010) 14 SCC 588, it was submitted that all matters concerning Waqfs must first be presented before the Tribunal under Section 83 of the Waqf Act.
Further, the respondents cited Rashid Wali Beg vs. Farid Pindari, (2022) 4 SCC 414, where the Supreme Court recorded that under Section 83(1), the Tribunal has the jurisdiction to determine disputes “relating to a Waqf” or “relating to Waqf property”, irrespective of whether such property is admitted to be Waqf property or not.
Justice M.S. Jawalkar examined the statutory scheme under the Waqf Act, 1995 and recorded that the Act does not vest review powers with the CEO. Citing Patel Narshi Thakershi, the judgment stated: "It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication."
It was noted that Section 25 of the Waqf Act delineates the duties and powers of the CEO but does not provide for review jurisdiction. The court observed: "There is no provision for review of the order."
Similarly, referring to Kalabharti Advertising, the court reiterated that review powers must derive from statute and cannot be assumed. Quoting the Supreme Court in the said case, the court observed: "Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction."
However, the court also noted that there existed a valid alternate remedy under Section 83 of the Waqf Act before the Waqf Tribunal. It cited the decision in Board of Wakf, West Bengal vs. Anis Fatma Begum and held: "All matters pertaining to the Waqf should be filed at first instance before the Waqf Tribunal... and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India."
The court referred to the recent judgment in Rashid Wali Beg vs. Farid Pindari, where it was recorded: "Section 83(1) provides for the determination of any dispute, question or other matter relating to a Waqf and relating to a Waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1)."
It also cited Mansoor s/o Kasim Mulla vs. Guddu Saheb Ibrahim Mugale, 2010(6) Mh.L.J. 247, noting that if the change report was obtained by misleading information, the objection deserves examination.
Considering these legal precedents and statutory provisions, the court concluded that the petitioners ought to have availed themselves of the remedy before the Waqf Tribunal rather than approaching the High Court directly.
The court dismissed the writ petition, holding: "In view of recent judgment of Rashid Wali Beg (supra) Section 83(1) provides for determination of any dispute, question or any other matter (i) relating to a Waqf and (ii) relating to a Waqf property. This prescription cannot be taken to have been curtailed or circumscribed by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal will assume jurisdiction only when a property is disputed to be a Waqf property. As such, the Petition is liable to be dismissed on the point of remedy available in the Waqf Act, 1995."
The final order stated: "As such, the Writ Petition stands dismissed. No order as to costs."
Advocates Representing the Parties
For the Petitioners: Mr. Masood Shareef, Advocate
For the Respondents: Mr. Abdul Subhan, Advocate; Mr. G. D. Shaikh, Advocate holding for Mr. D. B. Walthare, Advocate
[Read/Download order]
