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Judgment
Reference vide order dated 24.10.2017 was necessitated on account of decision dated 14.02.2017 passed by a learned Single Judge in S.B.Misc.
Application No.79/2016, Gram Panchayat Mandal & Anr. Vs. Wakf Committee, Mandal & Ors.. The order reads as under:-
“ The present S.B. Civil Misc. Application has been filed under Section 83(9) of the Wakf Act,1995 challenging the decision of the Tribunal formed
under the Wakf Act 1995. The concept of S.B. Civil Misc. Application under High Court Rules is of an application moved in existing writ/appeal or
other regular proceedings under going in any case before the High Court or it can be also be filed in a case already decided by the High Court.
Counsel for the applicant has taken this Court to Section 83(9) of the Wakf Act, 1995: “No appeal shall lie against any decision or order whether
interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any
person aggrieved, call for and examine the records relating to any dispute, question or other material which has been determined by the Tribunal for
the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination
or pass such other order as it may think fit”.
On the basis of aforesaid, it is submitted that S.B. Misc. Application would lie.
On examining the provisions of Section 83(9) of the Act this Court finds that the power is akin to the power available to the High Court under the
Article 227 of the Constitution of India. Thus, if any person is aggrieved of any decision passed by the Wakf Board, the only remedy available to him
is to challenge the same under Article 227 of the Constitution of India.
In view of the above, the present S.B. Civil Misc. Application is not maintainable.
The counsel for the petitioner submits that in view of the observation of this Court, the S.B. Civil Misc. Application filed on behalf of the Gram
Panchayat against the order/ judgment passed by the Wakf Board Tribunal be treated as a writ petition under Article 227 of the Constitution of India.
Prayer is allowed.
The applicant may now file an amended cause title in the appropriate format of the writ petition. Registry is directed to register this case as a writ
petition and list it as per roster.”
Sub-section 9 with the proviso to Section 83 of the Wakf Act, 1995 reads as under:-
“(9). No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, 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 itself as to the correctness,
legality or propriety of such determination any may confirm, reverse or modify such determination or pass such other order as it may think fit.”
Suffice it to state that under the proviso a power of superintendence which merges with a revisional power is conferred upon the High Court.
The view taken by the learned Single Judge in the order dated 14.02.2017 that the power under the statute is akin to the power conferred upon the
High Court under Article 227 of the Constitution of India may be correct for the reason a revisional power is always treated as akin to power of
superintendence, but, that would not mean that remedy under the statute would not be available.
We answer the reference by holding that where a statue confers the power of superintendence the same can be awarded by a party and thus
remedy against orders passed by the Wafk Tribunal under the Act of 1995 would be to file S.B.Misc. Application and not proceedings under Article
227 of the Constitution of India.
We therefore direct the Registry to re-number the instant writ petition as a S.B.Misc. Application and place it before the Roster Bench.