Punjab-Haryana High Court
Punjab Wakf Board vs Laique Ahmad on 8 October, 2003
Equivalent citations: AIR2004P&H236, AIR 2004 PUNJAB AND HARYANA 236, (2004) 4 RECCIVR 580
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. The plaintiff-Punjab Wakf Board has filed the instant Regular Second Appeal against the judgment and decree passed by both the Courts below vide which its suit for possession of the property in question has been dismissed, though on different reasonings.
2. On 29-7-1975, the plaintiff-Punjab Wakf Board (hereinafter referred to as 'the Wakf Board') filed this suit for possession of the property in question situated in Panipat, which was claimed to be part of 'Dargah Makhddum Shaib', a public wakf. This suit was filed by the Wakf Board through its Secretary, who was duly authorised to institute all suits on behalf of the Wakf Board in civil Court. By virtue of Section 8 of the Wakf Act, 1954 (hereinafter referred to as 'the Wakf Act'), the Wakf Board has been given authority and power to administer public wakf and property pertaining to it and to institute suits and take other proceedings relating to the recovery, of the wakf property. It was alleged that the property in question was a public wakf property and the same being used as part of the aforesaid Dargah since the time immemorial but the defendant had illegally trespassed upon the said property without any authority. It was further alleged that when the defendant refused to vacate the suit property, the present suit was filed.
3. The aforesaid suit was contested by the defendant by alleging that he was not a trespasser upon the suit property. Rather he was a lessee under the Wakf Board since 1974. It was also pleaded that the Wakf Board was having no locus standi to file the present suit as it was not appointed as a trustee to administer the wakf and as such it was having no power and authority to administer and control this public wakf property. It was further pleaded that the suit property is not the public wakf property nor the suit was instituted by a proper and authorised person.
4. Initially, the suit of the Wakf Board was decreed but on appeal by the defendant, the judgment and decree of the trial Court was set aside by the first Appellate Court vide judgment dated 25-7-1978, and the matter was remanded to the trial Court for fresh decision after framing the additional issues which were arising out of the pleadings of the parties. Thereafter, an additional, issue was framed by the trial Court to the effect that, "whether the suit property is public wakf property vests in the plaintiff?"
5. After the remand, the trial Court dismissed the suit of the Wakf Board after recording a finding on the aforesaid additional issue to the effect that the property in ques-tion was not found to be public wakf property and, therefore, the same did not vest in the Wakf Board. The other issues pertaining to the locus standi to file the present suit through its Secretary were decided in favour of the Wakf Board.
6. The Wakf Board filed an appeal against the aforesaid judgment before the first Appellate Court. Though the first Appellate Court reversed the finding of the trial Court on the additional issue and it was held that the property in question was a Wakf Property yet on issue Nos. 2 and 3, it was held that the plaintiff-Wakf Board was having no locus standi to file the present suit for possession. After recording the said finding, the appeal of the plaintiff-Wakf Board was dismissed vide judgment dated 18-1-1980.
7. The learned first Appellate Court while relying upon a decision of this Court in Prithipal Singh v. Punjab Wakf Board, Ambala, 1977 Pun LR (Short Note) 3 page 3 has held about the non maintainability of the suit by the plaintiff-Wakf Board for two reasons. Firstly, it was held that under Section 11 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as 'the 1950 Act'), all wakf properties vest in the Custodian until and unless a new trustee was appointed to manage the affairs of the Wakf Board properties. The power to appoint new trustee under Section 11(1) of the 1950 Act was delegated by the Central Government to the Punjab Government under Sub-section (2) of Section 11 of the 1950 Act vide notification dated 27-2-1967 (Ex. P-4). Thus, under the said notification, the Punjab Government became competent to appoint the trustees and it further delegated the said power to appoint the trustees in favour of the Wakf Board. In turn, the Wakf Board vide its resolution No. 24 dated 19-2-1968 appointed the Secretary of the Wakf Board as ex-officio trustee of all the Wakfs situated in Punjab, Haryana and Union Territory Chandigarh. On the basis of the aforesaid notification, it was held that the Secretary of the Wakf Board was the trustee and not the Wakf Board itself, therefore, the Wakf Board was having no locus standi to file the instant suit for recovery of the wakf properties because it was not a trustee of the wakf properties and only the Secretary of the Wakf Board was entitled to file the suit for recovery of the wakf properties being Secretary of the wakf properties. Secondly, it was held that in the resolution dated 19-2-1968, Maulana Kalam Laqaullah Panipat was appointed as Mutwalli of the Dargah Makhddum Shalb in question. Therefore, the property in question which was alleged to have been attached to the Dargah does not vest in the Wakf Board or its Secretary. As such, until and unless Maulana Kalam Laqaullah Panipat was removed from the trusteeship of the Dargah Makhddum Shaib, the Wakf Board or its Secretary would not have any locus standi to file the present suit.
8. Against the aforesaid judgment of the first Appellate Court, the Wakf Board has filed the instant Regular Second Appeal. During the pendency of the appeal, the Wakf Act was amended by Wakf (Amendment) Act, 1984 and a new provision, i.e. Section 66H has been incorporated in the Act which is reproduced as under :--
"66-H. Special provision as to evacuee wakf properties.-- The provisions of this Act shall apply, and shall be deemed always to have applied, in relation to any evacuee property within the meaning of Clause (f) of Section 2 of the Administration of Evacuee Property Act, 1950 (31 of 1950) which immediately before it became such evacuee property within the said meaning was property comprised in any wakf and, in particular, any entrustment (whether by transfer of any documents or in any other manner and whether generally or for specified purposes) of any such property to a Board made before the commencement of the Wakf (Amendment) Act, 1984 in pursuance of the instructions of the Custodian under the Administration of Evacuee Property Act, 1950 shall have and shall be deemed always to have had, notwithstanding anything contained in any other provision of this Act. effect as if such entrustment had operated to--
(a) vest such property in such Board in the same manner and with the same effect as in a trustee of such property for the purposes of Sub-section (1) of Section 11 of the Administration of Evacuee Property Act, 1950 (31 of 1950) with effect from the date of such entrustment, and
(b) authorise such Board to assume direct management of the wakf concerned for so long as it might deem necessary."
9. The aforesaid provision was inserted with retrospective effect from the date of the commencement of the Wakf (Amendment) Act, 1984. It has been provided that the provision of this Section shall be deemed always to have been on the statute book notwithstanding anything contained in any other provisions of the Act. In view of the newly added provisions, a wakf property would vest in the Wakf Board in the same manner and the same effect as in a trustee of such property for the purpose of Section 11(1) of the 1950 Act with effect from the date of such entrustment. Under the new provision a wakf property which was declared as a evacuee property on account of migration of trustees of Wakf to areas now forming part of Pakistan, must be treated as having vested in Wakf Board with effect from the date on which the said property was entrusted to the Wakf Board by the Custodian under the 1950 Act.
10. In the instant case, the wakf property in question was entrusted to the Wakf Board by the Punjab Government under the delegation power of the Central Government under Section 11(2) of the 1950 Act vide notification dated 27-2-1961 (Ex. P-4). The Wakf Board became its trustee in view of the aforesaid amended provision. Therefore, the Wakf Board was competent to maintain the suit for possession against the defendant. A similar controversy arose before the Hon'ble Supreme Court in Punjab Wakf Board v. Bachan Chand. 1988 Pun LJ 436. The Hon'ble Supreme Court after interpreting the amended provisions of Section 66-H of the Wakf Act has held as under :--
".........by virtue of Wakf (Amendment) Act of 1984 which has been given retrospective effect from the date of the enforcement of the Act. It has been provided therein that this provision shall be deemed always to have been on the statute book notwithstanding anything contained in any other provisions of the Act. Having regard to the aforesaid newly added provision, a wakf property would vest in the Wakf Board in the same manner and the same effect as in a trustee of such property for the purposes of Sub-section (1) of Section 11 of the Administration of Evacuee Property Act, 1950 with effect from the date of such entrustment. In the present case, the wakf property has been handed over to the Wakf Board as a trustee pursuant to an order dated 31st January, 1961 issued under the signature of the Additional Custodian, Jullundur, Punjab. The averment made in the pleading that the Wakf property had been so handed over to the Board was not controverted by the other side. Nor has the correctness of this fact been disputed before this Court. Under the circumstances, having regard to the provisions contained in Section 66-H, the property must be treated as having vested in the Wakf Board with effect from the date on which it was entrusted to the Board by the Custodian under the Administration of Evacuee Property Act. 1950 in 1961. The Wakf Board, therefore, was entitled to maintain an action for possession against the respondent-defendant having regard to the subsequent development in the form/of amendment of the law in the con text, of the incorporation of a new provision, viz. Section 66-H, during the pendency of this appeal, which has been given, retrospective operation.
11. In view of the aforesaid amendment having been made in the Wakf Act and as has been interpreted by the Hon'ble Supreme Court in Bachan Chand's case, 1988 Pun LJ 436 (supra), the reasonings given by the first Appellate Court while dismissing the suit of the appellant are not sustainable. Since the first Appellate Court has reversed the finding of the trial Court on the additional issue and it was held that the property in question is the public wakf property and the defendant was a trespasser on it the suit of the plaintiff-appellant has to be decreed. The counsel for the defendant-
respondent did not seriously contest the finding recorded by the first Appellate Court on the additional issue nor he could have assailed the said finding of fact in this Regular Second Appeal.
12. In view of the aforesaid discussion, the appeal filed by the appellant-Wakf Board is allowed and the judgment and decree passed by both the Courts below are set aside and the suit of the plaintiff-appellant for possession of the suit property is hereby decreed with no order as to costs.