The Supreme Court's bench of Justices KM Joseph and Hrishikesh Roy recently reiterated that the existence of an alternate remedy does not preclude the High Court's writ jurisdiction. The court made this observation while hearing the Maharashtra state Waqf Board's appeal against the Bombay High Court's 2011 decision, which quashed the Maharashtra state Board of Waqfs' constitution. The court did, however, grant the Board's appeal in part.

"A constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction."

One of the Board's arguments before the Apex Court was that the Act provides a remedy, namely that the right of an aggrieved party to approach the Wakf Tribunal. In this context, the bench noted that the challenge was made to the Board's incorporation and constitution, as well as the Charity Commissioner's proceedings."Article 226 confers a jurisdiction or a power on the High Courts. It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which has held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction. No doubt, when High Courts stray outside the limits with reference to certain principles as have been laid down in the decision which we have referred to, it can be corrected." The court further said.

The court also took note of the lengthy pending appeal against the HC judgement."Where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter.” the bench said.

Case Title: Maharashtra State Board of Waqfs vs Shaikh Yusuf Bhai Chawla

Citation: CA 7812-7814 OF 2022

Link: https://main.sci.gov.in/supremecourt/2011/34968/34968_2011_4_35_39069_Judgement_20-Oct-2022.pdf