ANIRUDDHA BOSE, J. - (1.) THE petitioners before me are Kabeeriyya Masjid Committee, an unregistered body and two individuals representing themselves as the Secretary and the President of the said Committee. In this proceeding, the petitioners question the legality of the decision of the Wakf Board, Andaman & Nicobar Islands holding that the Masjid known as Kabeeriyya Masjid, which is Wakf, belongs to the management of Akbariya Masjid. Such decision was taken by the Board on 19th March, 2011 in response to a communication of the Superintendent of Police, South Andaman district in connection with a subsisting dispute over management of the affairs of the said Masjid. This communication of the Superintendent of Police(SP) dated 8th March, 2011 was produced before me by the learned counsel for the Wakf Board. From this communication, I find that the SP has referred to a dispute between two groups, terming them as "EK " and "AP " for control of the functioning of the mosque. The Board was requested to look into the matter on priority basis and initiate necessary action to maintain peace in the community. The Board took the decision after issuing notices to the Secretary, Akbariya Masjid and the Secretary, Markaz Saka Fathiya (Sunniya), Wimberlygunj, as representatives of the "EK " and the "AP " groups respectively.
(2.) THE case of the petitioners is that one Shri C. Mohammed had dedicated the property on which the Masjid has been built to the Kabeeriyya Masjid Committee, i.e. the petitioner no.1 for construction of a mosque building for performing prayer and other worship and it is the said committee who are in management and control of the affairs of the said mosque before being dispossessed in consequence of the order of the Tribunal. The grievance of the petitioners is that consequent to the decision of the Wakf Board, their members are being illegally prevented from entering the mosque to offer prayers, and possession of the Masjid has been handed over to Akbariya Masjid with the help of the police authorities. Kabeeriyya Masjid however has not been registered under the provisions of Section 36 of the Wakf Act, 1995. An application for registration has been filed on 11th July, 2011 by the petitioners subsequent to filing of the writ petition and a copy of this application has been made annexure to the Affidavit -in -reply of the petitioners to the Affidavit -in -opposition of the respondent No.2. Ms. Anjili Nag, learned counsel for the petitioners has assailed the decision of the Wakf Board as illegal on the ground that such decision was taken without giving opportunity to the petitioners of being heard. She argued that such decision has been taken in violation of the principles of natural justice. In support of her submission that the Writ Court can interfere in such cases, she has relied on the judgment of the Supreme Court in the case of Whirlpool Corporation v. The Registrar of Trade Marks reported in AIR 1999 SC 22. In the writ petition and the affidavits filed in response thereto, the respective parties have sought to rely on various documents in support of their respective claims over management of the said mosque, and the statutory authorities have sought to justify their action. But on behalf of the petitioners, submissions have been confined on the point of violation of the principles of natural justice only. I am accordingly not addressing any other issue on which the writ petition is founded. I shall, however, first deal in this judgment the question of maintainability of this writ petition, which question has been raised as preliminary objection on behalf of the respondents. The ground on which such objection has been raised will be elaborated in the later part of this judgment.
(3.) MR . Mandal, learned Government Pleader appearing for the Administration and the Board has raised the point of maintainability of this writ petition on the ground that the Wakf Tribunal has the exclusive jurisdiction to decide a dispute of this nature. Two judgments have been relied on in this regard being a judgment of the Supreme Court in the case of Board of Wakf, West Bengal v. Anis Fatma Begum and Anr. delivered in Civil Appeal No.5297 of 2004 on 23rd November, 2010 as well as an unreported judgment of a Division Bench of this Court in W.P. No.14013(W) of 2010(PIL) (V.V. Khalid v. Union of India & Ors.) delivered on 20th June, 2011. Relying on these two authorities, Mr. Mandal has prayed for dismissal of this writ petition. Ms. Shyamali Ganguly, learned counsel for the respondent nos.3 and 4, being the Akbariya Masjid Committee has submitted that in view of the provisions of Section 87 of the Wakf Act, the petitioners do not have the locus to bring this action, as the Wakf has not been registered under the provisions of Section 36 of the Act. On merit, her submission is that the Kabeeriyya Masjid is in fact under the control of Akbariya Masjid Committee and it is her clients who are managing and looking after the entire affairs of Kabeeriyya Masjid. It is argued by Ms. Ganguly that the petitioner no.1 has no independent legal status or entity and it is part and parcel of Akbariya Masjid only. ;