Punjab-Haryana High Court
Sugan Chand Son Of Shri Hirde Ram And ... vs The State Of Haryana And Others on 15 March, 2011
Author: Augustine George Masih
Bench: Ranjan Gogoi, Augustine George Masih
CWP No. 10265 of 1993 and other connected case 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: 15.03.2011
CWP No. 10265 of 1993
Sugan Chand son of Shri Hirde Ram and others
......PETITIONERS
VERSUS
The State of Haryana and others
..... RESPONDENTS
CWP No. 3835 of 1994
Gram Panchayat, Nissang
......PETITIONER
VERSUS
The State of Haryana and others
..... RESPONDENTS
CORAM:HON'BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Anil Khetarpal, Advocate,
for the petitioners.
Mr. Randhir Singh, Addl. A.G. Haryana.
Mr. Anil Garg, Advocate,
for Mr. Arun Palli, Sr. Advocate,
for the Punjab Wakf Board.
Ms. Neha Mann, Advocate,
for Mr. D.S.Bali, Sr. Advocate,
for the Gram Panchayat.
***
AUGUSTINE GEORGE MASIH,J.
By this order, we propose to decide CWP No. 10265 of 1993 titled as Sugan Chand son of Shri Hirde Ram and others vs. The State of Haryana and others (by way of PIL) and CWP No. 3835 of 1994 titled as Gram Panchayat Nissang vs. The State of Haryana and others as the challenge in these writ petitions is to the order dated 03.03.1992 CWP No. 10265 of 1993 and other connected case 2 (Annexure P-7) passed by the City Magistrate-cum-Assistant Collector Ist Grade, Karnal sanctioning the mutation in favour of respondent No. 2- Punjab Wakf Board (hereinafter referred to as 'the Board'). For convenience, the facts are being extracted from CWP No. 10265 of 1993.
A notification dated 19.12.1970 was issued by the Punjab Wakf Board in exercise of its powers conferred by Sub-section (2) of Section 5 of the Wakf Act, 1954 publishing the list of Wakfs existing in the composite Punjab State. At Sr. No. 283, 284 and 286, Islamia School, Idgah and Grave Yard situated in Village Nissang finds mentioned (Annexure P-1). This notification was challenged by the Gram Panchayat, Nissang through Civil Writ Petition No. 972 of 1989 titled as Gram Panchayat Village Nissang vs. Punjab Wakf Board, Ambala and another. The writ petition was dismissed in limine by holding that the writ petition was not maintainable at that stage as the matter regarding sanction of mutation was pending before the Tehsildar. The petitioner was granted liberty to raise all contentions, which were pressed into service in the writ petition before the authorities concerned. It was also observed therein that the order passed by the Tehsildar in the mutation proceedings is appealable. After the passing of the order, the mutation in favour of the Punjab Wakf Board was sanctioned vide order dated 03.03.1992 (Annexure P-7) which has been challenged by way of the present writ petitions.
Counsel for the petitioners contends that the mutation, which has been sanctioned in favour of the Board, was passed in ex-parte proceedings. Moreover, the Assistant Collector Ist Grade, Karnal had relied upon the letter of the Sarpanch of the Gram Panchayat, Nissang wherein it was admitted by the Sarpanch that the property in question, CWP No. 10265 of 1993 and other connected case 3 which was as per the notification a Wakf, ownership of the Board and the Gram Panchayat had no connection with the same. It is contended that the Sarpanch was not authorized to give such consent and further that for the last 50 years, as per the Jamabandi, in the ownership column, Gram Panchayat was entered. Further, it has been alleged that the mutation does not confer any title and the Board cannot claim ownership on the basis of the notification which has been issued under the Wakf Act. Accordingly, the counsel pray that the writ petitions be allowed by quashing the impugned order dated 03.03.1992.
On the other hand, counsel for the respondent-Board has raised an objection with regard to the maintainability of the writ petitions. He contends that the notification, on the basis of which the mutation was sanctioned, is not subject matter of challenge in the present writ petitions. Appeal against the impugned order dated 03.03.1992 passed by the Assistant Collector Ist Grade is available which admittedly has not been filed by the petitioners. He submits that even the remedy of an appeal against the order of mutation finds mentioned in the order passed by the Division Bench of this Court in the earlier writ petition preferred by the Gram Panchayat i.e. CWP No. 972 of 1989. In any case, till the notification dated 19.12.1970 (Annexure P-1) holds the field, the order of mutation, which only declares the title of the owner, cannot be said to be not in accordance with law. The remedy available to the petitioners was to file a suit before the Tribunal constituted under Section 55 of the Wakf Act which remedy has not been availed of by the petitioners. He, accordingly, prays for dismissal of the writ petition.
We have heard the counsel for the parties and have gone through the records of the case.
CWP No. 10265 of 1993 and other connected case 4
The notification dated 19.12.1970 issued by the Punjab Wakf Board under Section 5 (2) of the Wakf Act is not under challenge in the present writ petition. The petitioners, if were aggrieved by issuance of such a notification, had a remedy available under the Wakf Act to file a suit before the Tribunal under Section 55 thereof, which remedy has not been availed of. In the light of the notification issued under the Wakf Act declaring Islamia School, Idgah and Grave Yard as Sunni Wakfs, the mutation sanctioned in favour of the Board vide order dated 03.03.1992 passed by the Assistant Collector Ist Grade, Karnal cannot be faulted with especially in the light of the fact that there was no contest on the part of the Gram Panchayat. The challenge to the mutation is based on the assertion of the petitioners that the Sarpanch of the Gram Panchayat was not authorized to issue a letter acceding the claim of the respondent-Board. The remedy under the Revenue Act which was in the form of an appeal has not been availed of against the order dated 03.03.1992.
In this view of the matter, no interference is called for by this Court and the writ petitions deserve to be dismissed. It shall, however, be open to the petitioners to avail of such legal remedies as may be available and advised to take recourse to in accordance with law.
( RANJAN GOGOI ) ( AUGUSTINE GEORGE MASIH ) CHIEF JUSTICE JUDGE March 15, 2011 pj CWP No. 10265 of 1993 and other connected case 5