1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.5675 of 2009 (Yunus Ali Kallu Shah and others v. Sk. Usman Sk. Gulzar and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri R.L. Khapre, Advocate for Petitioners. Shri Masood Shareef and Shri Adil Mirza, Advocates for Respondent No.1. Shri S.A. Radke, Advocate for Respondent No.3. Shri Firdos Mirza, Advocate for Respondent No.7. Shri R.M. Sharma, Advocate, holding for Shri A. Parchure, Advocate for Respondent Nos.10 to 23. Coram : R.K. Deshpande, J. Dated : 5 th October, 2010 1. This petition challenges the order dated 15-1-2010 passed by respondent No.6 – Maharashtra State Board of Wakfs accepting the change report, as a result of the elections, which were held on 2-1-2010, the programme for which was published on 23-12-2009. The petition also challenges the election programme dated 23-12-2009. 2. Shri Khapre, the learned counsel appearing for the petitioners, relying upon the judgment delivered by this Court in Writ Petition No.2889 of 2009 on 31-8-2009, the order dated 19-12-2009 passed in Civil Application No.2762 of 2009 2 filed in Writ Petition No.4224 of 2009 and the order dated 22-12-2009 passed in Civil Application No.2762 of 2009 filed in Writ Petition No.4224 of 2009, has urged that the elections have been held in contravention of the directions issued by this Court. According to him, as per the orders passed by this Court in all the aforesaid matters, the respondent-Board was required to hand over the charge of the entire record of the Trust to the petitioners, who were the original Trustees, and thereafter to invite the provisional voters' list from the petitioners and the respondents along with the objections and then to decide the said objections finalizing the voters' list. According to him, though the election programme was declared on 23-12-2009, the relevant record of the Trust was handed over to the petitioners at about 3.30 p.m. on the same day, whereas the time for publication of the primary voters' list was up to 9 a.m. on 23-12-2009. He submits that since the relevant record was not handed over to the petitioners before publication of the provisional voters' list, the Election Officer could not have proceeded to hold the elections. He further submits that before deciding the objections, an opportunity of hearing was also not provided to the petitioners. 3. These points are disputed by the respondents. It is urged on behalf of the respondents that there exists an alternate remedy by way of filing an appeal before the Wakf Tribunal, as contemplated by Section 83(2) of the Wakf Act, 1995 and the jurisdiction of the Wakf Tribunal extends even where the orders are not passed under the Act or the rules made thereunder. For this purpose, the learned counsel appearing for the respondent-Board, relied upon the judgment of the Madras High Court in Salam Khan & etc. v. Tamil Nadu Wakf Board, Chennai & Ors, etc., reported in 2005(3) CCC 516 (Mad.), wherein it has 3 been held that the provisions of Sections 83(1) and 84 of the Wakf Act, 1995 are independent and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. 4. The points raised by Shri Khapre, the learned counsel appearing for the petitioners, reproduced above, involve adjudication of disputed questions of fact. Even the point as to whether an opportunity was provided to the petitioners to raise the objections, also involves disputed questions of fact. Apart from this, there exists an efficacious alternate remedy under Section 83(2) of the Wakf Act before the Tribunal and all such points can be urged before it. 5. Shri Khapre, the learned counsel for the petitioners, has relied upon the judgment of the Apex Court in Bar Coucil of Delhi and another v. Surjeet Singh and others, reported in AIR 1980 SC 1612, wherein it has been held that the election held on the basis of void and ultra vires rule relating to preparation of electoral roll can be challenged by a writ petition and the remedy available was no remedy at all. He further relied upon the judgment of the Division Bench of this Court in Dattatraya Kachru Chine and others v. State of Maharashtra and others, reported in 2006(1) Bom.C.R. 875, in support of his proposition that if the names of the members are excluded from the voters' list on the ground that they had defaulted in payment to the Society and no opportunity of hearing was given to them, then the bar of alternate remedy would not operate. 6. The propositions laid down in the aforesaid judgments relied upon by the learned counsel for the petitioners cannot be 4 disputed. However, in the present case, there can be a dispute in respect of the compliance of the principles of natural justice and there being a statutory remedy available, this Court can always refuse to exercise jurisdiction under Articles 226 and 227 of the Constitution of India. 7. Shri Khapre, the learned counsel for the petitioners, relying upon the judgment of the Apex Court in Danda Rajeshwari v. Bodavula Hanumayamma and others, reported in AIR 1997 SC 1541, has urged that the period spent during the pendency of writ petition before this Court can be excluded while counting the period of limitation for filing an application under Section 83 of the Wakf Act. It has been held that such a direction by the High Court under Article 226 of the Constitution of India cannot be held to be without jurisdiction. 8. There is no doubt that if such an application is made before the Tribunal, it shall consider all the aforesaid points raised by the learned counsel for the petitioners. 9. In view of this, it is not possible for me to interfere with the order impugned in this petition. The petition is, therefore, dismissed. Judge pdl