Jammu & Kashmir High Court
Mohd Ashraf vs State Of J&K And Others on 27 January, 2022
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
...
OWP No.830/2012
Reserved on: 30.12.2021
Pronounced on: 27.01.2022
Mohd Ashraf
.......Petitioner(s)
Through: Mr. F. A. Natnoo, Advocate
Versus
State of J&K and others
......Respondent(s)
Through: Mr. S. S. Ahmed, Advocate
Mr. Rahul Raina, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. In this writ petition, the petitioner is seeking the following relief:
i. Writ of Certiorari quashing notification issued under SRO 351 dated 23.08.1982 by respondent no.1 under endorsement no.CMS(Auqaf)37/82 dated 23.08.1982 to the extent it pertains to notification and publishing of land measuring 18 Marlas falling under Khasra no.1007 in Doda City, Tehsil Doda.
ii. Writ of Prohibition restraining the respondents from charging any rent/premium from the petitioner in respect of land measuring 18 Marlas falling under Khasra no.1007 situated at Doda City, Doda.
iii. Writ of Mandamus commanding the respondent to conclude the process of the denotification of land measuring 18 Marlas falling under Khasra no.1007 of Doda City from Wakf property initiated in the year 1992.
2. The aforesaid relief is sought on the ground that on 07.11.2005 Bikrami, one Haji Ghulam Mohd. Bhat purchased a piece of land measuring 18 2 OWP No.830/2012 Marlas falling under Khasra No.1007, from Masjid Committee, Doda, through its Secretary, against consideration of Rs.350/-. He constructed a residential house over the said land. The Jammu & Kashmir Wakaf Act, 1978 (for short, the Act of 1978), came to be enacted after about 25 years of the aforesaid sale. The petitioner's case is that since the land in question, over which the house was constructed, was purchased 25 years prior to coming into force of the Act of 1978, the said property could not be notified to be Wakaf Property. The petitioner submits that the property in question was purchased by his father from the above Haji Ghulam Mohd. Bhat in the year 1995 and was later on gifted to him by his father and the property in question came in his possession and is presently in his possession. According to the petitioner, in the year 1982, on some misinformation, the land came to be notified and included in the Wakaf Property, Doda vide notification dated 30.08.1982. The petitioner further pleads that when erstwhile owner Haji Ghulam Mohd. Bhat came to know about the notification referred to above, he sought denotification of property referred to above by making representation before Wakaf Committee Doda, which vide resolution dated 30.05.1992 recommended for its denotifcation. He submits that the property in question was gifted to him by his father and after such gift he also represented before the authorities for denotification of the property. It is the case of the petitioner that despite such representations made for denotification of property in question, authorities failed to communicate any decision.
3. The main ground taken up by the petitioner is that once the property was sold by Masjid Committee, Doda, to Haji Ghulam Mohd. Bhat, the property could not be notified as a Wakaf Property. The sale had taken 3 OWP No.830/2012 place in the year 1953 and J&K Wakaf Act came into force in the year 1978, as such, the Act of 1978 is not applicable to the property in question. The notification dated 23.08.1982 issued vide SRO 351 insofar as it relates to the land in question, i.e., 18 marlas of land, as Wakaf is unauthorized and is required to be quashed.
4. Respondent no.3 in its objections has disputed the maintainability of the writ on the ground that the remedy of filing writ is not available and that the writ has been filed at a belated stage inasmuch as there is inordinate delay and laches. The petitioner has not availed the remedy of appeal in case he was aggrieved of the notification in respect of the property in question, whereby it has been notified as Wakaf property.
5. The Wakaf property cannot be sold, alienated and any sale, gift, exchange shall be void ab initio. It is also stated that the petitioner's claim that land in question was purchased by Haji Ghulm Mohd. Bhat from Masjid Committee through its Secretary is also not tenable because same had no legal sanctity.
6. Heard learned counsel for parties and considered the record on the file.
7. The main contention of the petitioner is that Haji Ghulam Mohd. Bhat purchased the land in question measuring 18 marlas from Masjid Committee, Doda, in the year 1953, through its Secretary and this contention is being supported by him by a receipt shown to have been executed by General Secretary.
8. Section 54 of the J&K Transfer of Property Act, Svt, 1977 (for short, the Act of 1977) deals with sale of property and as per section 54 of the Act of 1977 sale of immovable property can be made only by a registered instrument. Section 54 of the Act of 1977 is reproduced as under: 4 OWP No.830/2012
"54. "Sale" defined.-- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Such transfer, in the case of tangible immovable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument. A contract for the sale of immovable property is contract that a sale of such property shall take place on terms settled between the parties, but no such contract shall be valid, unless it is in writing, and signed by the parties. It does not, of itself, create any interest in or charge on such property."
9. It is thus clear from Section 54 of the Act of 1977 that sale in respect of immoveable property can be effected only by a registered instrument. There is no such document placed on record or stated to have been executed or registered in respect of the property in question. What is being relied upon is a photocopy of a receipt shown to have been executed by Secretary, Masjid Committee. Thus, there being no such registered instrument transferring the property in question to Haji Ghulam Mohd. Bhat, as such it cannot be safe to say that the property in question had been sold by Masjid Committee and purchased by the said Haji Ghulam Mohd. Bhat. This fact of sale requires proof and the proof could have been by producing a document executed and registered in accordance with the provisions of Section 54 of the Act of 1977.
10. The Jammu & Kashmir Wakafs Act, 1978 (Act No.XI of 1978) received the assent of the Governor on 09.05.1978 applicable to the whole of the erstwhile State of Jammu & Kashmir, now Union Territory of J&K. Section 2 of the Act of 1978 applies to all Wakafs whether created before or after the commencement of the Act.
11. Section 3(d) of the Act of 1978 defines Wakaf. Section 3(d) is reproduced as under:
"(d) "Wakaf" means the permanent dedication by a person professing Islam of any property movable or immovable for any 5 OWP No.830/2012 purpose recognized by Muslim Law or usage as religious, pious or charitable and includes--
(i) a Wakaf by user such as Masjid, Idgah, Dargah, Khankah, Maqbara, Graveyard, Grave, Rauza. Mausoleum, Takia, Sarai, Yatim Khana. Madrasa and Shafakhana; and
(ii) a Wakaf-ul-Aulad--
(a) for the maintenance and support, wholly or partially of his family, children or decendents; or
(b) for the maintenance of the Wakaf or for the payments of his debts out of the rents and profits of the property dedicated:
Provided that the ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognized by the Muslim law as a religious, pious or charitable purpose of a permanent character;
(iii) a grant, endowment or dedication of any property movable or immovable, made by the Government or any person or ruler for any of the aforesaid purposes;"
12. Chapter II of the Act of 1978 provides for survey of Wakafs. Section 4 of the Act of 1978 deals with preliminary survey of Wakafs whereas Section 5 deals with the decision of the special officer as to whether a particular property is or is not a Wakaf Property, and section 6 deals with the publication of the list of Wakafs. Sections 4, 5 & 6 of the Act of 1978 are, thus, reproduced as under:
"Section 4 - Preliminary Survey of Wakafs (1) The Government may, by notification in the Government Gazette, appoint one or more special officers as may be necessary, for the purpose of making a survey of wakafs in any area in which this Act in force.
(2) Such appointment may be terminated by the Government at any time for reasons to be recorded.
(3) The Special Officer shall, after making such inquiry as he may consider necessary, submit his report to the Government containing the following particulars in respect of wakafs, namely:--
(a) the number of wakafs in the area;
(b) the nature and object of each wakaf;
(c) the gross income of the property comprised in each wakaf;
(d) the amount of land revenue cesses, rates and taxes payable in respect of such property;
(e) the expenses incurred in the realization of the income and the pay or other remuneration of the Mutawalli of each wakaf; and
(f) such other particulars relating to each wakaf as may be prescribed.6 OWP No.830/2012
(4) The Special Officer in making such inquiries shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, Samvat 1977 (Act X of Svt. 1977) in respect of the following matters, namely:--
(a) summoning and examining witnesses;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record from any court or office;
(d) issuing commissions for the examination of witnesses and accounts;
(e) making any local inspection or local investigation; and
(f) any other matter which may be prescribed. (5) If, during any such inquiry, any dispute arises as to whether a particular wakaf is a wakaf within the meaning of this Act and there are clear indications in the deed of wakaf as to its nature, the dispute shall be decided on the basis of such deed.
Section 5 - Decision of the Special Officer (1) The decision of the Special Officer whether a particular property is or is not wakaf property shall, subject to any order made by the Government on appeal, be final.
(2) Any person aggrieved by an order of the Special Officer may prefer an appeal to the Government within 60 days from the date of the order and there shall be no further appeal.
(3) Notwithstanding anything contained in any law for the time being in force and save as otherwise provided in this Act, no Civil Court shall have jurisdiction to settle, decide or deal with any question or to deermine any matter which is by or under this Act required to be settled, decided or dealt with or to be deermined by Special Officer.
Section 6 - Publication of the list of the Wakafs (1) On receipt of a report under sub-section (3) of section 4, the Government shall after consulting the concerned committee publish the list of Wakafs in the Government Gazette.
(2) The list of Wakafs published under sub-section (1) shall, unless it is modified in pursuance of a decision of the. Government in appeal, be final and conclusive."
13. Section 52 of the Act prohibits transfer of any immoveable property of Wakafs which reads as under:
"52 - Transfer of Wakaf property (1) No transfer of any immovable property of Wakaf by way of sale, exchange or gift shall be valid without the previous sanction of the Government.
(2) Any Wakaf property such as agriculture lands, orchards, ahatas, houses, shops, vacant plots, Hujaras, apartments attached to Khanvuahs and (sic) my be leased out for a term not exceeding three years.
(3) The Board may transfer in the form of simple mortgage any immovable property of Wakaf other than a Wakaf by user as defined 7 OWP No.830/2012 in sub-clause (i) of clause (d) of section 3 in favour of any Bank having an office for transacting the business of banking in the State, for securing loans, subject to the condition that in any suit based on such mortgage, the mortgaged property shall be sold only to a permanent resident of the State."
14. Section 52 makes it clear that sale of Wakaf property is forbidden. In this case, having regard to what has been discussed above, what is to be considered is as to whether petitioner or Haji Ghulam Mohd. Bhat could seek denotification of the property in question and whether this writ petition challenging the SRO 351 insofar it notifies property in question as Wakaf Property, is maintainable.
15. As said above, there is no record produced by the petitioner to show/establish that the property in question notified as Wakaf Property was sold and purchased in accordance with the law prior to it being notified as Wakaf property. The Act of 1978 came into force in the year 1978 and in terms of Section 4 of the Act of 1978, preliminary survey was conducted and on the decision of special officer, the property in question was notified as Wakaf Property. A notification to this effect was issued way back in the year 1982 vide SRO 351 dated 23.08.1982. The petitioner or Haji Ghulam Mohd. from whom he claims that his father purchased the property did not challenge the said notification by filing appeal as is provided under the Act.
16. Sub-section (2) of Section 5 of the Act of 1978 provides that a person aggrieved of order of the Special Officer may prefer an appeal to the Government within a period of 60 days. So, it is clear from sub-section (2) of section 5 of the Act of 1978 that the remedy available to the aforesaid Haji Ghulam Mohd. Bhat or to the petitioner was to file an appeal against the decision of the Special Officer whereby he decided property in question to be Wakaf Property which had been so notified in terms of the 8 OWP No.830/2012 notification impugned in this writ Petition. The petitioner having failed to avail the remedy of appeal which was available to him and was to be filed within 60 days, but he did not choose to file appeal and has filed this writ petition that too in the year 2012, i.e., after 30 years of passing of the impugned notification, without there being any cogent material or justification. The writ petition in view of the availability of the remedy of appeal is not maintainable. Even otherwise, had this petition been maintainable, the same is barred by inordinate laches and unexplainable delay.
17. For the reasons discussed above, I do not find any merit in this writ petition, which is dismissed accordingly. Interim direction, if any, shall stand vacated.
(Vinod Chatterji Koul) Judge Jammu 27.01.2022 Paramjeet Whether the order is reportable: Yes/No.