IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4515 of 2004 ABDUR RAHMAN, Son of late Abdul Ghani, Resident of Village-Gopalpur Gopal, P.O. and P.S. Sharfuddinpur, District-Muzaffarpur. …….Petitioner Versus 1. ANISHA KHATOON, D/o late Abdur Rahman, Ex.- Mutawalli, W/o Md. Taiyab, Resident of Village- Gopalpur Gopal, P.O. and P.S. Sharfuddinpur, District- Muzaffarpur. 2. Chairman, Bihar State Sunni Wakf Board, 34 Haj Bhawan, Ali Imam Path, Patna-1. 3. Bihar State Sunni Wakf Board through its Secretary, Ali Imam Path, Patna-1. 4. Inspector of the Board (Enquiry Officer), 34 Haj Bhawan, Ali Imam Path, Patna-1. 5. The State of Bihar through the Collector, Muzaffarpur, District-Muzaffarpur. …….Respondents ----------- For the Petitioner : Mr. Md. Anis Akhtar, Adv. Mr. Arifdaula Siddiqui, Adv. For the Board : Mr. Rashid Izhar, Adv. (Respondent nos. 2 to 4) For Respondent no. 1 : Mr. Khatim Raza, Adv. ----------- 3/ 22.04.2011 Heard the parties. 2. The petitioner has approached this Court by filing the present writ petition questioning the validity and legality of the order dated 03.11.2003 (Annexure-6), whereby the respondent-Chairman of Bihar State Sunni Wakf Board in exercise of his powers of the respondent-Board, delegated to him in terms of Section 27 of The Wakf Act, 1995 2 (in short Act), has removed the petitioner from the post of Mutawalli of the Haji Ghausan Wakf Estate No. 446 of District Muzaffarpur, and has appointed the respondent no.1 as the Mutawalli of the said Wakf Estate for looking after and managing the affairs of the Wakf property. 3. Mr. Anis Akhtar, learned counsel appearing on behalf of the petitioner, submits that the impugned order is contrary to the scheme and mandate of Section 63 of the Act. He further submits that appointment of respondent no.1 is contrary to the provisions of Wakf deed, and therefore, the order impugned is liable to be set aside by this Court. 4. Mr. Khatim Raza, learned counsel appearing on behalf of respondent no.1, and Mr. Rashid Izhar, learned counsel appearing on behalf of respondent nos. 2 to 4 have challenged the maintainability of the present writ petition before this Court. In their submissions, the order impugned is appealable in terms of Section 64 (4) of the Act. According to them, when the impugned order was passed, the Tribunal constituted in terms of Section 3 83 of the Act was not functional and, therefore, the present writ petition was filed before this Court. Now, it is a common ground that the Tribunal in terms of Section 83 of the Act has been constituted and is functional. Therefore, in their submissions, the petitioner herein must exhaust his alternative remedy of appeal under the provisions of the Act. 5. In reply to the aforesaid submissions of learned counsel appearing on behalf of the respondents, it was submitted by the learned counsel for the petitioner that the impugned order was passed in the year 2003 and admittedly, at that time the Tribunal was not functional and if any appeal is filed now at this stage, then it would be rejected as barred by limitation. 6. After hearing the parties and on consideration of materials available on record, this Court is of the considered opinion that issues of facts are required to be determined conclusively by the statutory authority. In the present case, certain disputed question of facts have been raised by the parties. Therefore, in the opinion of the Court, the matter is required to be examined by the Tribunal, 4 constituted under the provisions of the Act, and disputed question of facts are required to be resolved there by the learned Tribunal. Section 64 (4) of the Act apparently provides for an appeal before the Tribunal against an order passed under Section 64 (1) of the Act only for such an eventuality. 7. In the aforesaid facts and circumstances, the petitioner is hereby directed to file an appeal before the learned Tribunal constituted under the provisions of the Act within a period of one month from today. If such an appeal is filed, within the time prescribed and a prayer for condonation of delay is made, then the learned Tribunal exercising its powers in terms of Rule 75 (3) of Bihar Wakf Rules, 2002 shall be obliged to condone the delay in filing such an appeal and shall further be obliged to decide the same on its own merit, after giving opportunity of hearing to all concerned including the petitioner and the respondents. It is expected that once an appeal is filed within the time prescribed by this Court, then endeavour shall be made by the learned Tribunal to conclude the hearing and 5 dispose it of on its own merit by a speaking order within a period of three months from the date of filing of such an appeal. 8. Learned counsel appearing on behalf of respondent no.1 has assured this Court that respondent no. 1 shall also appear before the Tribunal within the aforesaid period of one month. 9. It is made clear, if no such appeal is filed by the petitioner within the time prescribed by this Court with a certified copy of the present order, then it shall be construed that the present writ petition has finally been rejected by this Court. 10. With the aforesaid observations and directions, the present writ petition stands disposed of. Anjani/ ( Birendra Prasad Verma, J.)