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2005 DIGILAW 1551 (RAJ)

Mafidarana Madariya Almeen v. State of Raj.

2005-05-24

SHIV KUMAR SHARMA

body2005
Honble SHARMA, J.–The prayer of the petitioners in the writ petition is as under:- (i) to quash and set aside the Circulars dated December 13, 1991 (Annexure-1) and December 9, 1992 (Annexure-2); (ii) to restore the names of the petitioners in the revenue record; (iii) to prohibit the non-petitioners from dispossessing the petitioners from the land in question and to declare that the land in question are not the Wakf properties. (2). It is averred in the writ petition that in the revenue records the names of the dargahs in whose favour the Mafi was granted was continuing till the assumption of the Jagirs. The Rajasthan Land Reforms and Assumption of Jagirs Act, 1952 (in short `1952 Act) was enacted and came into force on February 18, 1952. Section 9 of 1952 Act provides that every tenant in a Jagir land at the commencement of the 1952 Act is entered in the revenue records as a Khatedar, Pattedar, Khadimdar or under any other description implying that the tenant as heritable and full transferable right shall continue to have their rights and shall be called as Khatedar tenants of such lands. Since the land question were already entered in the revenue records as Khatedars/Khudkant, after the assumption of the mafi under the provisions of sections 22 and 23 of Rajasthan Land Reforms and Assumption of Jagirs Act (in short the Jagirs Act) the names of the petitioners or their ancestors came to be entered as khatedar tenants in the revenue records. Circular dated December 13, 1991 was in the matter of lands belonging to deities and their Pujaris. It is not related to the ancestors of the petitioners. The Mafis were not covered under the Circular dated December 13, 1991 but the Wakf Board without giving any opportunity of hearing through the concerned officers got the names of the Khatedar tenants deleted and their place only the name of the Dargah was allowed to continue. (3). It is further averred that as per the provisions of Sections 4 and 5 of the Wakf Act, 1954, a survey was to be conducted and a list was required to be published by the Wakf Board. The private dargahs in whose favour Mafi was granted, were not wakfs and their names were not entered in the list of wakfs. It is further averred that as per the provisions of Sections 4 and 5 of the Wakf Act, 1954, a survey was to be conducted and a list was required to be published by the Wakf Board. The private dargahs in whose favour Mafi was granted, were not wakfs and their names were not entered in the list of wakfs. Even if it is assumed that the properties were Wakf properties, the same cannot be taken away from the petitioners under the garb of any of the provisions of the Wakf Act. Therefore the act of the Wakf Board in deleting the names of the petitioners from the revenue records was unauthorised. (4). The Rajasthan Board of Muslim Wakf (respondent No. 2) raised preliminary objections to the maintainability of writ petition on the ground of delay and alternative remedy. (5). I have heard the rival submissions and scanned the material on record. The learned counsel for the petitioners placed for may perusal a decision of this court rendered in S.B. Civil Writ Petition No. 5754 of 1993 Mandir Shri Hanumanji Maharaj Trust vs. State of Rajasthan decided on August 2, 2001. (6). At this juncture a look at section 7 of the Wakf Act 1995 appears necessary that provides as under:- ``7. The learned counsel for the petitioners placed for may perusal a decision of this court rendered in S.B. Civil Writ Petition No. 5754 of 1993 Mandir Shri Hanumanji Maharaj Trust vs. State of Rajasthan decided on August 2, 2001. (6). At this juncture a look at section 7 of the Wakf Act 1995 appears necessary that provides as under:- ``7. Power of Tribunal to determine disputes regarding wakfs.-(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakf is wakf property or not, or whether a wakf specified in such list is a Shia Wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that- (a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. (7). Evidently the question whether a particular property is Wakf Property or not can only be resolved by the Tribunal. The contention that the property in dispute as notified is not a wakf property and that the petitioner are in possession thereof for last many years in their own rights and property is not a wakf property within the meaning of wakf Act raises a disputed question of fact and can not be adjudicated in a writ petition. Ratio indicated in Mandir Shri Hanumanji Maharaj Trust vs. State of Rajasthan (supra), is not applicable to the facts of this case. In Syed Mustafa Peeran Sahib vs. State Wakf Board (AIR 1969 Madras 66) it was indicated that where an aggrieved paty fails to resort to the provisions of S.6 of the Wakf Act, for settling a dispute about the wakf character of the property, by filing a civil suit, he will be precluded from agitating the same question over again in writ proceedings. (8). For these reasons I find no merit in the writ petition and the same stands dismissed without any order as to costs.