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MAT 901 of 2016 and CAN 8992 of 2016

Decided On: 15.06.2018

Appellants: The Board of Auqaf, West Bengal Vs. Respondent: Golam Mustapha and Ors.

Hon'ble Judges/Coram:
Jyotirmay Bhattacharya, C.J. and Abhijit Gangopadhyay


Jyotirmay Bhattacharya, C.J.

1. This Mandamus Appeal is directed against the judgment and/or order passed by the learned Single Judge of this Court on 22nd December, 2015 in a writ petition being W.P. No. 29863 (W) of 2015 filed by the writ petitioners/respondents herein.

2. By the impugned order the writ petition was disposed of with a direction upon the Board of Wakf (appellant) to consider the claim of the writ petitioners for appointment as Joint Mutawallis in accordance with law, as early as possible; but not later than 8 (eight) weeks from the date of receipt of the copy of the said order. Such direction was passed by overruling the objection raised by the counsel appearing for the Board of Wakf, the appellant herein, regarding maintainability of such writ petition before the High Court. The legality and/or propriety of the said decision of the learned Single Judge of this Court are under challenge in this mandamus appeal.

3. For proper appreciation of the merit of the appeal, let us now give the facts in brief leading to filing of the writ petition. The writ petitioners' claim that they were appointed as Joint Mutawallis in respect of Ashraful Islam Wakf Estate (hereafter described as the "said Wakf Estate") by the Board of Wakf (hereafter described as "the Board") in the year 2000, for a period of five years. After expiry of the tenure of five years they had approached the Board with an application for their further appointment. Since the said application was not considered for long time, reminders were issued. Still the Board did not take any decision on the writ petitioners' claim for their continuance as Joint Mutawallis of the Wakf Estate. It was claimed by the writ petitioners that they were still looking after the said Wakf Estate as Mutawallis and maintaining the same properly for the benefit of the persons interested in the Wakf. Under such circumstances, the writ petitioners filed the said writ petition seeking an order on the Board to decide their claim for Mutawallis hip. The said writ petition was disposed of in the manner as aforesaid. The legality of the impugned decision is challenged by the appellant practically on two-fold grounds.

4. Mr. Galib, learned advocate appearing for the appellant, submitted by pressing strong reliance on the decision of the Hon'ble Supreme Court reported in MANU/SC/0970/2010 : (2010) 14 SCC 588 (Board of Wakf, West Bengal & Anr. Vs. Anish Fatma Begum & Anr.) and an unreported decision of a Co-ordinate Bench of this of Court dated 19th April, 2011 in W.P. No. 6923 (W) of 2011 (Musst. Hazera Khtoon & Anr. Vs. The State of West Bengal & Anr.), that the learned Writ Court was not justified in overruling his objection regarding maintainability of the writ petition by holding that the observation of the Hon'ble Supreme Court in 'Anis Fatma' (supra) that High Court cannot be straightway approached under Article 226 of the Constitution loses the presidential value, as such observation which was made by the Hon'ble Supreme Court, was in the nature of obiter dictum. The learned Writ Court held that the observation made by the Hon'ble Supreme Court to the effect that High Court cannot be straightway approached under Article 226 of the Constitution, having been made without any argument advanced before the Court on such issue, cannot be treated to be a binding precedent. To support such conclusion, the Writ Court placed reliance upon the decision of the Hon'ble Supreme Court reported in