Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 99 (PNJ)

Punjab Wakf Board, 50 Sardar Patel Marg, Ambala Cantt. v. Mohinder Kaur

2002-01-22

BHAGAT SINGH

body2002
ORDER Bhagat Singh, FC. - The present four petitions have been filed by the Punjab Wakf Board under section 54 of the Administration of Evacuee Property Act, 1950, against the order dated 11.6.1996 passed by the Custodian General, Punjab, whereby the petitions of the petitioner were rejected by him, holding that the land involved in the case was an evacuee property of the Custodian. 2. Since the facts and issues involved in these petitions are quite similar, all the four are being disposed of by this single order, a copy of which is being placed on each file. 3. Briefly, as per petitions, the land in dispute is situated in village Maqsudpur, Tehsil and district Kapurthala and belongs to Mosque etc. i.e. religious institutions of the Muslims and is administered and controlled by the Punjab Wakf Board. Muafi in favour of Mosques etc. and regarding the land involved in these cases was granted by the Maharaja, Kapurthala, vide his order dated 27th Asuj, 1925 and it was reviewed in the year 1983 Bikrami. 4. The tehsildar (sales)-cum-Managing Officer, Kapurthala allotted the said land in the names of respondent No. 1 as under :- Sr. No. Name of allottee Total land Khasra Nos. Date of order. (1) Smt.Mohinder Kaur 44K-18M 2//23, 24, 3//20, 21, 22, 6//10/1, 11/2M and 7//16 15.11.91 (2) Smt. Khursaida 20K-11M, 6//1/2M, 2, 8, 9min 12.3.92 (3) Smt.Charan Kaur 15K-14M, 6//9min, 11/2min, 13, 7//16 13.3.92 (4) Sh. Kulwant Singh 5K-1M 7//16-M 11.5.92 The above mentioned land was further sold to Sh. Balwinder Singh etc. by the allottees. The above mentioned allotments were approved by the competent authority and conveyance deeds were issued. The allottees became full-fledged owners of the land before its sale. 5. Respondents No. 3 & 4, namely, Sh. Sunder Singh and Sh. Sadhu Singh, lessees of Punjab Wakf Board challenged the allotments on the ground that Tehsildar Sales illegally and wrongly allotted the land to the war widows and the dependents of the ex-servicemen as he had no jurisdiction to do the same in case of land of the Punjab Wakf Board. The Sales Commissioner, Kapurthala rejected the appeal of Kulwant Singh, lessee of the Punjab Wakf Board vide his order dated 3.6.1993 but the Chief Sales Commissioner, Kapurthala accepted appeals of all lessees by his common order dated 11.11.1991. The Sales Commissioner, Kapurthala rejected the appeal of Kulwant Singh, lessee of the Punjab Wakf Board vide his order dated 3.6.1993 but the Chief Sales Commissioner, Kapurthala accepted appeals of all lessees by his common order dated 11.11.1991. The vendee Balwinder Singh filed a petition before the Commissioner, Jalandhar Division, Jalandhar, who also dismissed the same vide his order dated 17.9.1997. Being aggrieved by the order dated 11.11.94 of Chief Sales Commissioner and 17.9.1997 of the Commissioner, Balwinder Singh filed the petitions bearing M.R. Nos. 11 to 14 of 1997-98 under Rule 15(1) of the Punjab Package Deal Properties (Disposal) Act, 1976 which were dismissed by this court vide separate detailed order dated 22.1.2002 on same day. 6. On the other hand, the Punjab Wakf Board, on coming to know about the aforesaid allotments of the wakf property, filed four petitions under section 27 of the Administration of Evacuee Property Act, 1950, before the Custodian General Punjab for declaring that the land belonged to religious institutions of the Muslims and are vested in the Punjab Wakf Board. These revision petitions were rejected vide order dated 11.6.1996 by the Custodian General merely on the grounds that no notice was issued to the Custodian before the issue of the gazette notification dated 11.9.1971 under Section 5(2) of the aforesaid Act, 1950 notifying the land as wakf property. Secondly the said notification is not binding on a stranger who is in possession of the property as has been held in the 1988-PLJ-10. He also referred to an order dated 27.3.1991 of his predecessor regarding the land of the same village Maqsudpur stating that the said decision was upheld by the then Financial Commissioner vide order dated 2.5.1991. 7. Aggrieved by the order dated 11.6.1996, four petitions bearing M.R. No. 2 to 5 of 1996-97 were filed by the lessees of the Wakf Board which were, however, withdrawn by them and the withdrawal of the same was accordingly allowed. Hence, against the order dated 11.6.1996 of the Custodian General, four petitions i.e. M.R. No. 25 to 28 of 1999 are for consideration before this court. 8. I have heard the learned counsel for the parties. Sh. Hence, against the order dated 11.6.1996 of the Custodian General, four petitions i.e. M.R. No. 25 to 28 of 1999 are for consideration before this court. 8. I have heard the learned counsel for the parties. Sh. H.C. Ahuja, advocate, appeared on behalf of the Punjab Wakf Board and argued that muafi of the land in question was granted in favour of Mosque etc.- Religious Institutions of Muslims by the Hindu Maharaja of Kapurthala vide his order dated 2nd Baisakh, 1937 BK as is evident from the revenue record. It was not at all owned and left by any Muslim individual on migration to Pakistan. A Hindu Raja could grant such muafi to the institutions of the Muslims in view of the mandatory provisions of Section 66(c) of Punjab Wakf Board (Act), 1954. It never vested in any individual evacuee. Whereas only the land/property of individual evacuee was acquired under section 12 of the Displaced Person (C&R) Act, 1954 and it formed a part of compensation pool as defined under section 14 of Act ibid. These properties were transferred lateron by the Central Government to the State Government under a package Deal in 1961 and are now governed by the Punjab package Deal Properties (Disposal) Act, 1976. The counsel further argued that the perusal of the revenue record and the report dated 31.1.95 of District Revenue Officer, Kapurthala clearly reveals that the land in question was granted as muafi in favour of religious institutions of Muslims and that it vests in the Punjab Wakf Board. The Rehabilitation Authorities had no jurisdiction to dispose of this wakf property by way of allotment without giving a notice to the Punjab Wakf Board. The allotments made in favour of war widows or the dependents of ex-servicemen in these cases are absolutely illegal, void, and without jurisdiction and, as such, are not biding upon the Punjab Wakf Board as per settled law in 1967-CLJ-760. This order can be set aside at any time and need not be even challenged compulsorily. When an action/order is illegal all subsequent actions/orders/proceedings based thereupon also become so (1991-PLJ-511). 9. The counsel further contended that the land has clearly been shown in the revenue record as that of Masjid. As per law laid down in AIR-1976-SC-1569, AIR-1988-SC-972, such an entry is a conclusive proof of the property being a wakf property. When an action/order is illegal all subsequent actions/orders/proceedings based thereupon also become so (1991-PLJ-511). 9. The counsel further contended that the land has clearly been shown in the revenue record as that of Masjid. As per law laid down in AIR-1976-SC-1569, AIR-1988-SC-972, such an entry is a conclusive proof of the property being a wakf property. The Custodian General has erred by relying upon the orders passed by another Financial Commissioner on 2.5.1991 regarding some other land of the same village. This order has already been challenged by the Punjab Wakf Board and the case is still pending in the Honble High Court. The said case is quite different from these cases as is evident from the perusal of the said order dated 2.5.1991 and the facts of these cases. The land in question was notified as a wakf property under section 5(2) of the Wakf Act vide gazette notification i.e. 11.9.1971 and the said notification having not been challenged within one year before the civil court, has attained finality as held by the Supreme Court of India in AIR-1998-SC-972. The ruling 1988-PLJ-10 relied upon by the Custodian General is not attracted in this case in view of the different facts of these cases. Custodian cannot be termed as a stranger when the land of religious institutions was temporarily vested in the custodian himself under Section 11 of the Administration of the Evacuee Property Act, 1950 till the appointment of the new trustees thereof. Such land was lateron transferred by the custodian to the Punjab Government vide notification dated 18.3.1960 and it was then transferred to Punjab Wakf Board vide notification dated 27.2.1961. It is immaterial whether the aforesaid in satisfaction dated 11.9.1971 binds the custodian or not when the land in question belongs to Masjid etc. The notification dated 11.9.1971 was issued only to bring to the notice of general public the fact that the said property vests in the wakf board so that the interested persons may challenge the same within one year from its issue as per section 6 of the Wakf Act, 1954. Otherwise it was to attain finality under Section 6 ibid. The notification dated 11.9.1971 was issued only to bring to the notice of general public the fact that the said property vests in the wakf board so that the interested persons may challenge the same within one year from its issue as per section 6 of the Wakf Act, 1954. Otherwise it was to attain finality under Section 6 ibid. The tehsildar sales could not dispose of the land by way of allotment without bringing on record the fact that land was owned by an individual and that it vested in the custodian in view of law laid down in 1994-RLR-12 whereas he has failed to do. Consequently, his order as well as that dated 3.6.1993 of the Sales Commissioner were rightly set aside by the Chief Sales Commissioner vide his order dated 11.11.1994 which was lateron upheld by the Commissioner, Jalandhar vide order dated 11.9.97. 10. The vendees Balwinder Singh etc. also cannot get the protection of section 41 of Transfer of property Act as bona fide vendees because they have not exercised due care before purchasing the same and the record clearly reveals that allottees from whom they purchased the land had not become owners. To clinch the matter of vesting for ever a new section 66-H was incorporated later on in the Wakf Act, 1954 vide which all such wakf properties vested in Punjab Wakf Board retrospectively. The land in question also stands vested in the Punjab Wakf Board retrospectively. 11. The counsel also pointed out that the land in question had never been declared as an evacuee property of any individual before 7.5.1954. The date given in section 7-A of the Act ibid and onus was on these respondents who alleged that the land in question was an evacuee property of individuals and was acquired by the Central Government under section 12 of the ibid Act 1954. But they had miserably failed to prove it. Neither any notice has been given to Punjab Wakf Board under section 7 of the ibid Act, 1950 nor any notice has been given to the Board under section 57 of the Punjab Wakf Act, 1954 before the disposal of the wakf property in question. But they had miserably failed to prove it. Neither any notice has been given to Punjab Wakf Board under section 7 of the ibid Act, 1950 nor any notice has been given to the Board under section 57 of the Punjab Wakf Act, 1954 before the disposal of the wakf property in question. The counsel referred the case of Tej Ram v. Gram Panchayat bearing M.R. No. 3 to 10 of 2000 decided by Smt. Shyama Mann, the then Financial Commissioner Revenue vide her order dated 25.4.2000 in support of his contention that the religious institution like Mosque and Kankah etc. vested in the custodian only temporarily and the same were taken away from the custodian in 1960 and were given to Punjab Government vide notification dated 28.3.1960. The wakf board has kept on leasing out the land in question from time to time since long and all of a sudden in the year 1992 and thereafter tehsildar sales, Kapurthala allotted the land as evacuee land. The counsel urged that the order dated 11.6.1996 of the Custodian General, Punjab being illegal, void and without jurisdiction, be set aside. 12. Sh. T.R. Vij, advocate, counsel for Sunder Singh, Sadhu Singh and Shingara Singh, respondents submitted that property was wakf property and Govt. of India vide its notification dated 11.9.1971 declared the land in question as wakf property. It should have been mutated in favour of wakf board much earlier. 13. Sh. G.S. Nagra, the learned counsel for the allottes-respondent No. 1 argued that the land in question was an evacuee property and the State remitted the land revenue in favour of individuals subject to good character. These allottees have further sold the land to Sh. Balwinder Singh etc. vendees who are bona fide vendees and are protected under section 41 of Transfer of Property Act. Sh. Nagra submitted that the decision dated 27.3.1991 taken by Custodian and later on challenged before Financial Commissioner Appeals, Punjab and decision dated 2.5.1991 taken by the Financial Commissioner Appeals in another case M.R. No. 45 of 1990-91 has absolutely no bearing on this case and also the same is already under challenge in the Honble High Court. The facts of the said case are totally different from the facts of this petition. The facts of the said case are totally different from the facts of this petition. The land was owned by one Haider Ali whereas the land involved in the petitions did not belong to Haider Ali and was given in muafi by a Hindu Raja. The counsel averred that the Chief Sales Commissioner as well as the Commissioner have erred in dismissing the petitions of Balwinder Singh on the point of notification dated 11.9.1971 issued by the Punjab Wakf Board. This notification has no value in the eyes of law. Ld. Financial Commissioner has already dismissed the petitions of Sunder Singh, Sadhu Singh etc. vide his order dated 10.5.1990. It is a well settled proposition that only custodian can institute an enquiry in order to determine whether the property was wakf or evacuee or as to what is the character of land. Punjab Wakf Board and its lessees have already lost their case before the Custodian. The lessees are the trespassers and unauthorized occupants who never applied for the transfer of land on the basis of their possession. The owners/muafidar Muslims have already migrated to Pakistan and, therefore, the land stands vested in the Rehabilitation Departments by operation of law under section 4 of East Punjab Evacuee (Administration of Property) Act, 1947. The land has rightly been allotted to the war widows and dependents of ex-servicemen by the Tehsildar Sales. Balwinder Singh etc have purchased the land from these allottees after perusing the revenue record and the allotment orders dated 15.1.1991 in favour of Mohinder Kaur through the registered sale deed dated 15.5.1992. Therefore, his rights are protected under section 41 of the Transfer of Property Act. The counsel urged that the petition was liable to be dismissed. 14. I have considered the arguments advanced by the counsel for the parties and have also gone through all the relevant record of these cases along with judgments of the Civil Courts and provisions of different Acts and the citations given by all parties. I find force in the arguments of Sh. H.C. Ahuja, advocate, counsel for the Punjab Wakf Board and hold that the land in question belongs to Religious institutions of Muslims i.e. Mosque as per revenue record. The land in question was granted in muafi in favour of Mosque etc. and possession of the same was with Chirag Ali etc. I find force in the arguments of Sh. H.C. Ahuja, advocate, counsel for the Punjab Wakf Board and hold that the land in question belongs to Religious institutions of Muslims i.e. Mosque as per revenue record. The land in question was granted in muafi in favour of Mosque etc. and possession of the same was with Chirag Ali etc. before the partition of the country only for purposes of management and supervision thereof. The grant of the muafi by Hindu raja is clearly for the Masjid etc. and this finds support from the provisions of Section 66(c) of Punjab Wakf Act, 1954. Nothing has been brought on record by the counsel for respondents-allottees to show that this property was ever declared as an evacuee property or same was acquired under Section 12 of the Displaced Persons (C&R) Act. Rather, the report of the District Revenue Officer, Kapurthala supports the fact that the property in question vests in the Punjab Wakf Board. As per law laid down in AIR-1980-SC-1206 the sale of property without its declaration as an evacuee property before 7.5.1954 the date given in section 7-A of the Administration of Evacuee Property Act, 1950 and without conducting enquiry after giving notice to the interested persons/institutions under Section 7 of ibid Act, 1950, is illegal and without jurisdiction. As such the same is liable to be quashed. A per 1993(1) RLR-Page 230 mere claiming of property as evacuee property is not sufficient to vest in the custodian. The order dated 27.3.1991 upheld by the then Financial Commissioner Appeals was wrongly relied upon by the Custodian General in his impugned order as the perusal of the same shows that the same is not based upon (sic), and the same could not be legally relied upon him. 15. The question whether notification dated 11.9.1971 is binding on the stranger or not has also become totally irrelevant in this case when the property had already been vested in Wakf Board (as a wakf property) i.e. Masjid etc. much before the issue of the said notification. As such his decision based on the ruling 1988 PLJ 10 according to which such notifications are not binding on the stranger is not legally sustainable. much before the issue of the said notification. As such his decision based on the ruling 1988 PLJ 10 according to which such notifications are not binding on the stranger is not legally sustainable. The notification was issued only to bring the (sic) of land in the Wakf Board as a wakf property in the (sic) public so that the same may be challenged/objected to by the interested persons within one year of the issue of the same and if it is not challenged, then it would attain finality under section 6 of the Wakf Act, 1954. In this case, none of the interested persons has challenged the same within one year. As such it has attained finality under section 6 ibid. Section 66-HI of the Punjab Wakf Board and a number of citations on the subject leave no doubt that the property should vest in the Punjab Wakf Board. The citation 1988(2) RRR-47 applies to this case as it laid down law "Wakf Act. Section 66-H and 15-Administration of Evacuee Property Act, Section H- Section 66-H as incorporated by Amendment Act, 1984-Retrospective in operation-wakf property which declared evacuee property on account of Migration of Trustees of wakf to area now forming part of Pakistan-Must be treated as having vested in Wakf Board with effect from the date on which entrusted to Wakf board by Custodian under Administration of Evacuee Property Act-Wakf Board can maintain action for possession by virtue of authority conferred by Section 15(1) read with Section 15(2)(1)." 16. Most interesting thing is that in some cases, allotments were neither confirmed not conveyance deeds were issued nor any instalment were paid thereof. So the allotment orders passed by the tehsildar (Sales), Kapurthala were illegal and without jurisdiction. He had no power to dispose of the wakf property without verifying its title as to whether the same vested in Custodian/Govt. or in any other person body, though bringing on record such proof of title before the disposal of property was quite mandatory in viewing the law laid down in 1994(2) RLR-12 by the Punjab and Haryana High Court. Thus the allotments order in question being without jurisdiction and against the law, the same has been set aside in separate orders dated 22.1.2002 passed in M.R. No. 11-14 of 1997-98 filed under Section 15 of the Punjab Package. Deal Properties (Disposal) Act, 1976 by Balwinder Singh etc. Thus the allotments order in question being without jurisdiction and against the law, the same has been set aside in separate orders dated 22.1.2002 passed in M.R. No. 11-14 of 1997-98 filed under Section 15 of the Punjab Package. Deal Properties (Disposal) Act, 1976 by Balwinder Singh etc. venders, who have not used due care while purchasing the property or seeing its ownership. Under these circumstances, they cannot be termed a bona fide vendees and get the protection of section 41 of the Transfer of Property Act. 17. In view of the above discussion, I find force in the claim of the Punjab Wakf Board. The petition is accepted and the orders dated 11.6.1996 of the Custodian General Punjab set aside. The allotments in question, and further sale of Sh. Balwinder Singh etc. have already been set aside by the Chief Sales Commissioner as well as the Commissioner vide their orders dated 11.1.1999 and 17.9.1997 and these orders further have been upheld in separate M.R. No. 11 to 14 of 1997-98 filed by Balwinder Singh against the lessee and the allottees of the Rehabilitation Department by this court vide order of same date. Announced. Petition allowed.