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1988 DIGILAW 72 (SC)

Punjab Wakf Board v. Bachan Chand

1988-01-21

K.N.SINGH, M.P.THAKKAR, N.D.OJHA

body1988
(1) THE principal controversy in this appeal centres around the question as to whether the Punjab Wakf Board (Board) can lawfully invoke the jurisdiction of the civil court in respect of wakf property which was once declared as evacuee property on account of the migration of the trustees of the wakf to the areas now forming a part of Pakistan. (2) A suit for possession was instituted by the appellant Punjab Wakf Board against the respondent who was in possession of wakf land to the extent of 9 kanals and 13 niarlas in Village Bassi Babu Khan in Hoshiarpur District of Punjab. The defence of the respondent defendant was that he was a tenant under the Wakf Board and was liable to pay Rs. 15.00 per kanal per annum as rent but he pleaded that the civil court had no jurisdiction to entertain the suit. The trial court concluded that the respondent-defendant was a tenant but came to the conclusion that he could be evicted only by the revenue court and not by the civil court. The lower appellate court took a contrary view. It formed the opinion that (1 the respondent-defendant had failed to establish that he was a tenant and (2 that the civil court did have the jurisdiction to entertain the suit. Accordingly, the lower appellate court allowed the appeal preferred by the Wakf Board and decreed the suit against the respondent-defendant. The matter was carried by the defendant to the High court by way of second appeal. The High court has taken the view that the civil court had no jurisdiction inasmuch as S. 11 of the Administration of the Evacuee Property Act was attracted and that S. 15 of the Punjab Wakf Board Act, 1954 had no overriding effect vis-a-vis the said provision. In this view of the matter, the High court allowed the appeal preferred by the defendant, reversed the decree passed by the lower appellate court, and dismissed the suit for possession instituted by the Wakf Board. Thereupon the Punjab-Wakf Board has approached this court by way of present appeal by special leave. (3) THE validity of the view taken by the Punjab High court as on the date when the judgment was rendered need not be examined for reasons which will become evident presently. Thereupon the Punjab-Wakf Board has approached this court by way of present appeal by special leave. (3) THE validity of the view taken by the Punjab High court as on the date when the judgment was rendered need not be examined for reasons which will become evident presently. Subsequent to the decision of the High court giving rise to the present appeal, Wakf Act of 1954 has been amended and a new provision has been incorporated. The provision in question has been embodied in S. 66-H1 of the Act 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 ?nd the same effect as in a trustee of such property for the purposes of Ss. (1 of S. 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 31/01/1961 issued under the signature of the Additional Custodian, Jullandar, 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 provision contained in S. 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 context of the incorporation of a new provision, viz. S. 66-H. during the pendency of this appeal, which has been siven retrospective operation. 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 context of the incorporation of a new provision, viz. S. 66-H. during the pendency of this appeal, which has been siven retrospective operation. The plea of bar of jurudiction can no longer survive in view of the legislative changes particularly having regard to the fact that S. 15(1read with S. 15(2 of the Act empowers and authorizes the Board to institute a suit in respect of a property vesting unto the Board. The impediment arising in the context of the fact that the former trustees had become evacues and new trustees had not been appointed has lost its relevance. For. now the Board can maintain the action by virtue of the authority conferred by S. 15(1 read with S. 15(2(i) of the Act. (4) THE question now remains as to whether the Wakf Board is entitled to a decree for possession. It was suggested to the learned counsel for the Wakf Board that in the facts and circumstances of the case the respondent-defendant may be permitted to continue if he was prepared to pay all the arrears and to pay reasonable rent for the future. Having regard to the fact that the respondent has been cultivating the land for more than fifteen .years, the learned counsel for both the sides ultimately left it to us to pass appropriate orders to achieve the ends of justice. Under the circumstances, instead of passing a decree for payment of arrears and an unconditional order for possession, we pass a conditional decree in the following terms: THE respondent-defendant shall pay the arrears of rent at the rate of Rs. 15.00 per kanal per annum that is to say, Rs. 140.00 per annum for the disputed land with effect from the date of the institution of the suit till 31/12/1987. The total amount of arrears would come to Rs. 1,820.00 for the period expiring on 31/12/1987. We direct the respondent to pay the arrears by depositing this amount in this court within four months from today. With regard to the subsequent period commencing 1/01/1988 respondent will be continued as a tenant with full tenancy rights and will have to pay rent at the rate of Rs. 1,820.00 for the period expiring on 31/12/1987. We direct the respondent to pay the arrears by depositing this amount in this court within four months from today. With regard to the subsequent period commencing 1/01/1988 respondent will be continued as a tenant with full tenancy rights and will have to pay rent at the rate of Rs. 900.00 per annum in respect of the land in question. In case the respondent is unwilling to continue as a tenant on the basis of the formula evolved by the court, it would be open to the respondent to surrender possession to the Wakf Board. The respondent-defendant will file an affidavit to the effect that he is willing to continue as per this formula on or before 30/04/1988. If such an affidavit is not filed or in case of failure of payment of arrears which has been computed at Rs. 1,820.00 on or before 30/04/1988, there will be a decree for possession in favour of the appellant Board which will be entitled to execute decree for possession. There will also be a decree for payment of Rs. 1,820.00 which the appellant Board will be entitled to execute in case arrears are not paid within the specified time frame apart from being entitled to execute the decree for possession. In the event of the respondent-defendant filing the affidavit and paying the arrears within the specified time the respondent defendant will be entitled to continue as tenant with full tenancy rights at an annual rent of Rs 900.00 commencing from 1/01/1988. The appeal shall stand disposed of accordingly in these terms. There will be no order as to costs throughout.