Explained: What happens to a petition filed under wrong nomenclature?

Supreme Court:  The 3-judge bench of Ashok Bhushan, SA Nazeer and Hemant Gupta*, JJ has reiterated that the nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses.

The Court hearing a where a petition was filed against an order of the Wakf Tribunal before the High Court but was styled as a Writ Petition under Article 226 of the Constitution. The Court explained that when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. In fact, in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition.

Further, the proviso to sub-section (9) of Section 83 of the Wakf Act, 1995 confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination.

“The statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed.”

Relying on the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, the Court said that if the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code.

“Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.”

[Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC OnLine SC 280, decided on 05.04.2021]


*Judgment by Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.