HC directs UT Govt to constitute Tribunal as mandated under Wakaf Act

STATE TIMES NEWS

JAMMU: In a landmark judgment on various petititons, Justice Sanjeev Kumar of Jammu & Kashmir and Ladakh High Court on Friday directed Government of Union Territory to constitute one or more Tribunals as mandated under Wakaf Act.
The petitioners in all these petitions are in occupation of Waqf properties as licensees thereof and have essentially raised a dispute with regard to an arbitrary, irrational and exorbitant enhancement of monthly rent.
“Till the Government constitutes Tribunal/Tribunals in terms of Section 83 of the Act, there shall be status quo with regard to the subject matter of these writ petitions”, the Court observed.
The star argument of the counsel, appearing for the petitioners is that the Waqf Board being an instrumentality of the State is expected to act fairly and in public interest.
The Waqf Board increased the rentals of the properties under occupation of the petitioners in ex-parte and without providing them an opportunity of being heard.
Justice Sanjeev Kumar, while deciding bunch of petitions, observed that a careful reading of Subsection (1) of Section 83 of the Act, it clearly comes out that each State Government, which would include Union Territory as well is put under an obligation to constitute one or more Tribunals, as it may think fit, by issuing notification in the Official Gazette.
“The word “shall” used in respect of constitution of Tribunal or Tribunals is mandatory in nature. It further comes out that the Tribunal/Tribunals so constituted by the Government of State or Union Territory shall have jurisdiction to determine 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. Obviously, the dispute raised in these petitions falls within the determination of Tribunal. As is apparent from a reading of Section 85 of the Act, no Civil Court, Revenue Court and any other authority shall have jurisdiction to entertain any suit or other legal proceeding in respect of any dispute, question or other matter relating to any Waqf property as also the matter which is required by or under the Act to be determined by the Tribunal.”
Justice Sanjeev Kumar observed that in view of the clear legal position emerging from reading of Sections 83 and 85 of the Act, this Court has no option but to agree with the learned counsel appearing for the petitioners that in the event these writ petitions are not entertained, the petitioners would be rendered remediless.
“Much was said about the power and jurisdiction of this Court to entertain the writ petition despite availability of an alternative remedy provided under the Statute. Suffice it to say the question of relegating the parties to an alternative remedy or entertaining of a petition under Article 226 despite availability of statutory alternative remedy would arise only when this Court has jurisdiction to entertain the writ petition. Had this Court come to a conclusion that writ petition challenging the impugned action of the Board of Auqaf was amenable to writ jurisdiction, certainly it would not have relegated the petitioners to the remedy before the Tribunal for the simple reason that the Tribunal does not exist”, the Court said. “In view of the foregoing and being aware that dismissal of these writ petitions on the ground of maintainability under Article 226 of the Constitution of India would in the present circumstances render the petitioners remediless, this Court cannot entertain these petitions and exercise jurisdiction not vested in it. However, having regard to the predicament faced by the petitioners or may be faced by similarly situated persons in future, High Court deem it appropriate to remind the Government of the Union Territory of its statutory duty enjoined on it under Section 83 of the Act and to take requisite steps for constitution of one or more Tribunals, as it may think fit, so that persons aggrieved are not rendered remediless. In the premises, writ petitions are held not maintainable and the same are, accordingly, dismissed. However, while dismissing the writ petitions and taking note of the chaotic situation created due to non constitution of the Tribunal or Tribunals, Justice Sanjeev Kumar directed the Government of Union Territory to constitute one or more Tribunals, as it may think fit, in terms of Section 83 of the Act within a period of two months from the date of this judgment.