Mohammed Abbas K.P. & Abdul Samad P.V. v. The Kerala State Wakf Board and Balusseri Mahallu Jama-ath

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944 WP(C) NO. 4645 OF 2023** ## **PETITIONERS:** 1 MOHAMMED ABBAS K.P,AGED 63 YEARS S/O. ABDUL KHADER K.P., KOROTH POIL HOUSE, POST VATTOLI BAZAR, BALUSSERI, KOZHIKODE, PIN - 673612 2 ABDUL SAMAD P.V, AGED 62 YEARS S/O. ABDULLA, PUTHANVEETIL NADUVILAKKANDIYIL HOUSE, BALUSSRI POST, KOZHIKODE, PIN - 673612 BY ADVS. P.B.SUBRAMANYAN P.B.KRISHNAN SABU GEORGE MANU VYASAN PETER ## **RESPONDENTS:** 1 THE KERALA STATE WAKF BOARD REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, VIP ROAD, KALOOR, PIN - 682017 2 BALUSSERI MAHALLU JAMA-ATH VATTOLI BAZAR P.O., BALUSSERI, KOZHIKODE, REPRESENTED BY ITS INTERIM MUTHAWALLI, SRI.JAFFAR.M.K., PIN - 673612 3 MUHAMMED HASHIM A, ADVOCATE COMMISSIONER, BALUSSERI MAHALLU JAMA-ATH, MANKUZHY ROAD, MNRA 11, EDAPPALLY TOLL, ERNAKULAM, PIN - 682024 4 MUHAMMED HAROON A.N WP(C)No.4645 of 2023 2 ADVOCATE COMMISSIONER, BALUSSERI MAHALLU JAMA-ATH, POST VATTOLI BAZAR, BALUSSERI, KOZHIKODE, PIN - 673612 BY ADV SHRI.JAMSHEED HAFIZ, SC, WAQF BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.4645 of 2023 3 **“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 the supervision of the Advocate commissioners appointed by this Court, which permitted the Advocate Commissioners to make suitable deletions/addition to the voter's list. They also submit that the election has to be conducted in terms of Ext.P1 bye-law. However, when the draft voters list was published by the Advocate Commissioners, petitioners made two objections, namely 79 persons who were from outside the Mahallu were included, which they allege to be a violation of clause 4 of the bye-law. That apart, 154 persons who had no affiliation with the Kerala Naduvathul Mujahideen (KNM), which is the parent organization of the first respondent juma-ath has been included in the list, which is a contravention of clause 7 of the bye- law. Since these objections were summarily rejected, petitioners have instituted this writ petition quashing Exts.P8 and P9 that rejected WP(C)No.4645 of 2023 4 their objections and also for a direction to the Advocate Commissioners to redraw the draft voters list after accepting the objections raised by the petitioners 2. We find that the prayers made in the writ petition involve a dispute on the factual aspects, which need not be considered in the above writ petition. That apart, the petitioners have an alternate efficacious remedy to approach the wakf Tribunal, which has given all the powers to consider any disputed questions relating to the wakf. The said Tribunal has all the trappings of the civil court. In such circumstances, we are not inclined to accept the contention of the learned counsel for petitioners that since the Advocate Commissioners were appointed by this Court, they have invoked the jurisdiction of this Court, as the same can never be a reason for us to entertain this writ petition, 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 nonentertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternate remedy is available is a rule and self-imposed restriction. It is essentially a rule of policy, convenience, and discretion rather than a rule of law. Again in **Authorised Officer, State Bank of Travancore v. Mathew K.C.** [(2018)3 SCC WP(C)No.4645 of 2023 5 85) referring to the earlier judgments of the Apex Court , it was held that High Court will not entertain a petition under Article 226 of the Constitution of India if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of grievance. Therefore, when a statutory forum is created by law for the redressal of grievance, a writ petition should not be entertained, ignoring statutory dispensation. Further, in cases where there are disputed questions of fact, the High courts normally decide to decline jurisdiction in a writ petition. In **City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others** [(2009) 1 SCC 168] Supreme Court held that the court, while exercising its jurisdiction under Article 226 of the Constitution of India, is duty bound to consider whether the petitioner has any effective alternate remedy for the resolution of the dispute. Thus, a reading of all the above judgments makes it clear that it is one thing to say that in the exercise of the power vested in it Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/ instrumentality or any public authority or order passed by a quasijudicial body/authority, but it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution of India must be entertained by the High court as a matter, of course, ignoring the fact that the aggrieved person has an effective alternate WP(C)No.4645 of 2023 6 remedy. 4. We have already held in WP(C)No.3964 of 2023 a statutory mechanism is created under the Act, and we feel that any dispute, question, or other matters whatsoever relating to a wakf property can be decided effectively by the wakf Tribunal. No doubt, the alternate remedy is not an absolute bar for filing the writ petition, but at the same time, it is well settled that writ jurisdiction is a discretionary jurisdiction, and when there is an efficacious alternate remedy, ordinarily, a party must resort to that remedy first before approaching this Court. Entertaining a writ petition straight away without insisting that a party should avail alternate remedy is an over-liberal approach that is causing immense difficulties to the high court, adding to the huge arrears. That apart, these are disputed questions of facts to be decided by the bodies created under the Wakf Act and time has come for this Court to stop entertaining writ petitions seeking directions relating to a wakf and to insist that the party should first approach the authorities under the Act. When the legislature has provided for a statutory mechanism, the high court ought, under normal circumstances, to refer to the statutory scheme. We do not find any reason at all for entertaining this writ petition, more so when nothing is pleaded or shown as to why the alternate remedy available is not efficacious. WP(C)No.4645 of 2023 7 The writ petition is dismissed without prejudice to the rights of the petitioner to avail of the alternate remedy. Sd/- **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk/10.2.2023 WP(C)No.4645 of 2023 8 ## **APPENDIX OF WP(C) 4645/2023** ## **PETITIONERS EXHIBITS** |Exhibit P1|TRUE COPY OF THE BYE-LAW OF THE| |---|---| ||BALLUSSERI MAHALLU JAMA-ATH, DATED 30-| ||04-1985| |Exhibit P2|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO.11923 OF 2022 OF THIS HON'BLE COURT,| ||DATED 26-09-2022| |Exhibit P3|TRUE COPY OF THE NOTIFICATION ISSUED BY| ||THE ADVOCATE COMMISSIONER DATED 21-1-| ||2023| |Exhibit P4|TRUE COPY OF THE OBJECTIONS FILED BY| ||PETITIONER NO.1, DATED 2-2-2023, ALONG| ||WITH THE LIST OF PERSONS FROM OUTSIDE| ||THE MAHAL| |Exhibit P5|TRUE COPY OF THE OBJECTIONS FILED BY| ||PETITIONER NO.2, DATED 2-2-2023| |Exhibit P6|TRUE COPY OF THE OBJECTION FILED BY| ||PETITIONER NO.1 DATED 2-2-2023| |Exhibit P7|TRUE COPY OF THE LETTER ISSUED BY THE| ||KNM, BALASSUERY, DATED 1-2-2023| |Exhibit P8|TRUE COPY OF THE ORDER PASSED BY THE| ||ADVOCATE COMMISSIONER DATED 4-2-2023| |Exhibit P9|TRUE COPY OF THE ORDER PASSED BY THE| ||ADVOCATE COMMISSIONER DATED 4-2-2023| |Exhibit P10|TRUE COPY OF THE LETTER ISSUED BY THE| ||CHAIRMAN, MAHALLU MUSLIM JAMA-ATH,| ||BALUSSERY, DATED 7-3-2013|