Petition Styled As One Under Article 226 Would Not Bar High Court To Exercise Its Jurisdiction Which Otherwise It Possesses: Supreme Court

The Supreme Court observed that a petition styled as one under Article 226 would not bar the High Court to exercise its jurisdiction which otherwise it possesses under a Statute and/or under Article 227 of the Constitution.

In this case, the appellant's contention was that  the order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution as only a revision in terms of proviso to sub-section (9) of Section 83 of the Wakf Act could be preferred.

To answer this contention, the bench comprising Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta noted that sub-section (9) of Section 83 of the Act confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying its elf as to the correctness, legality or propriety of such determination. The court, thus, observed:

The petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.

The bench added that the nomenclature of the title of the petition filed before the High Court is immaterial. It said:

Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub-section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court.

In this case, the High Court had held that the tenant in the premises in question was representing a joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of  Bihar State Sunni Wakf Board and consequently the induction of the appellant as a tenant by the Wakf Board was illegal. The bench observed that mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint Hindu family business. Allowing the appeal, the bench held that the document was validly proved and accepted by the Wakf Board.

Yet another contention raised was that a suit for declaration of the plaintiff as a tenant was not maintainable before the Wakf Tribunal.  The court observed that this issue cannot be permitted to be raised at this stage as the parties had accepted the order of the civil court and went to trial before the Tribunal.

Case: Kiran Devi Vs. Bihar State Sunni Wakf Board [CA 6149 OF 2015]

Coram: Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta

Citation: LL 2021 SC 195

Click here to Read/Download Judgment