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Rajasthan High Court · body

2006 DIGILAW 3282 (RAJ)

Johra Jabeen v. State of Raj.

2006-12-21

SHIV KUMAR SHARMA

body2006
Honble SHARMA, J.—The prayer of the petitioners in the instant writ petition is as under:– (i) to quash the notification dated November 30, 1990 as published in the Rajasthan Rajpatra on September 12, 1991 along with entire acquisition proceedings. (ii) to quash the notification dated March 9, 1993 published in the Rajasthan Rajpatra on March 11, 1993. (iii) to restrain the respondents from acquiring the land of Jagar House. 2. It is averred in the writ petition that the notification for acquisition of land of the petitioner forming part of Jagar House, Ajmeri Gate, Jaipur was issued on November 30, 1990, which was published in Rajasthan Rajpatra on September 12, 1991. The notification was also published in daily news paper on December 19, 1990. Another notification dated March 9, 1993 was published in Rajasthan Rajpatra on March 11, 1993. The land in question was shown to be Milkiyat Sarkar and it has been referred to as Khasra No. 167 situated in revenue village Kishanpole Tehsil Jaipur. The measurement of Khasra No. 167 has been shown to be 10 bighas 11 biswas Gair Mumkin Abadi and it was sown that a portion of the land 2599 sq. yards had already been acquired by State Government, but it was not shown as to which part of the land khasra no. 167 was acquired. While there is no khasra No. 167 is available in the record and as such a wrong khasra number has been mentioned in the notification. This land became identifiable only by insertion of Jagar House, Ajmeri Gate below the area of the land so acquired. The area of Jagar House is full of constructions and is the central heart of the city. In the notification the specifications and location of the land has not been shown. The village Kishanpole had already submerged into the Municipal area of Jaipur Municipal Council since before the advent of freedom during the time of erstwhile Jaipur State. After the merger of village Kishanpole into the Municipal area the land identification marks through khasra numbers rendered redundant. As such it difficult to identify a particular land as to in which khasra number it is situated. The area of Jagar House is fully developed area and it does not require any further development. The road in front of the said land is very wide and is known as Rambagh Road. As such it difficult to identify a particular land as to in which khasra number it is situated. The area of Jagar House is fully developed area and it does not require any further development. The road in front of the said land is very wide and is known as Rambagh Road. Formerly the Jagar House belonged to Nawab Abdul Baqi, who was Jagirdar of Jagar. When jagirs were resumed the total land of Jagar House was declared as a private property by Jagir Commissioner vide order dated May 9, 1989 under Section 23 of Rajasthan Land Reforms and Resumption of Jagirs Act. Earlier a dispute arose between Rajasthan Board of Muslim Wakf and Shri abdul Baqi Nawab with regard to nature of rights in the property. Therefore Abdul Baqi Khan and his wife Bilkis Begum filed a civil suit for declarationof right and permanent injunction. The suit was compromised and it was settled that the land shall be a Wakf UI alal Olad as defined in Muslim Personal Law. It was also agreed that legal representatives of Abdul Baqi Khan and Bilkis Begum will the Mutwalis of this Trust (Wakf) Ul Alal Olad. The post of Mutwalis shall be hereditary with all rights. City Survey was conducted during the regime of Maharaja of erstwhile State of Jaipur and the land covered by Jagar House was from Khasra No. 2165 to 2175 except 2165 & 2166. In Misal Hakiyat of Settlement Department of Svt. 1987 (years 1930) the land was in the name of Abdul Wahab Khanji and different khasra numbers (800, 756, 760, 761, 769, 762, 773, 775, 776, 777, 778, 779, 780, 781, 782, 783, 784, 785, 786, 787, 788, 789, 790, 791, 792, 793, 794, 795, 796, 797, 798, 799, 801, 768/11756) as mentioned in para 6 of writ petition. Total measurement of land is shown 5 bighas and 9 biswas. Rajasthan Board of Muslim Wakf issued a certificate dated March 26, 1992 that property of Jagar House is a Muslim Wakf under the Wakf Act, 1954. the State Government also vide circular dated June 14, 1975 issued direction not to acquire the land belonging to wakf and if an alternate land is available then the wakf property should not be touched at all. The petitioners contended that the notification dated November 30, 1990 does not contain any specific public purpose for acquisition of land. the State Government also vide circular dated June 14, 1975 issued direction not to acquire the land belonging to wakf and if an alternate land is available then the wakf property should not be touched at all. The petitioners contended that the notification dated November 30, 1990 does not contain any specific public purpose for acquisition of land. The purpose so shown is as under:– "For the Jaipur Development Authority for performance of its functions and development programme. This purpose does not carry any sense. The notification was vague since there was no description of land. The name of the owners of the land was vague. The petitioners were not sure as to which portion of the land was to be acquired. Thereafter the notification published on September 12, 1991 was published after 9 months and 12 days from the date of issuance of the notification. In order to avoid the question of limitation the Land Acquisition Officer published the notification in news paper on February 14, 1992, which was 14 months and 14 days delay. According to Item II of proviso 2 of sub-section 1 of Section 6 of the Act notification expired on February 14, 1992. Notice was issued on March 13, 1992 but no public notice was caused. Thereafter the petitioners filed objection on April 2, 1992. When report under Section 5A was being sent without hearing the petitioners the application was filed on June 11, 1992. However, without giving proper opportunity of hearing the report under Section 5a was sent on November 13, 1992. After the transfer of the scheme to Municipal Council Jaipur, as published in news paper June 3, 1992, the Jaipur Development Authority lost every jurisdiction over the area. This objection was also taken but has not been considered. Being aggrieved of the notifications dated November 30, 1990 (published on September 12, 1991) and March 9, 1993 (published on March 11, 1993) and further proceedings of land acquisition the instant writ petition has been filed. 2. The respondent No. 3 filed reply to writ petition raising preliminary objection that since the petitioners have not disclosed as to how they are related to the land in question and what is their title over the land, the writ petition deserves to be dismissed. The respondents further pleaded that acquisition proceedings were initiated after following the prescribed procedure and no interference is called for. 3. The respondents further pleaded that acquisition proceedings were initiated after following the prescribed procedure and no interference is called for. 3. I have reflected over the rival submissions and weighed the material on record. As already noticed the property of Jagar House is a Wakf Property and the Rajasthan Board of Muslim Wakf issued a certificate dated March 26, 1992 that property of Jagar House is a Muslim Wakf under the Wakf Act. The State Government on June 14, 1975 issued a circular not to acquire the property belonging to Wakf. 4. Under the Mohammedan Law, Wakf is a two-fold transfer simultaneously made, perpetual in both its aspects with religious motive pervading, the transaction as a whole consist of a transfer (1) of the usufruct in favour of the beneficiary or objects of the wakf and (2) of the substance in reality a renunciation of the substance metaphorically spoken of as a transfer of the substance to God. There can be no dispute that on such endowment under the Mohammedan law the ownership in th property is wholly renunciated or vested in the God and the benefits which the beneficiaries derive only out of the usufruct, Mohammedan Law, it must be remembered, makes a difference between Ayn (corpus) and manafi (usufruct) and the beneficial interest under the endowment is generally created out of such usufruct. Such being the position, the beneficiary acquires no interest in the strict sense in the property itself though an interest in the usufruct arising out of such property is vested in the beneficiary. 5. At this juncture it will be useful to incorporate Section 91 of Wakf Act, 1995, which reads as under:– "91. Proceedings under Act 1 of 1894.–(1) If, in the course of proceedings under the Land Acquisition Act, 1894 or under any law for the time being in force relating to the acquisition of land or other property, it appears to the Collector before an award is made that any property under acquisition is wakf property, a notice of such acquisition shall be served by Collector on the Board and further proceedings shall be stayed to enable the Board to appear and plead as, a party to the proceeding at any time within three months from the date of the receipt of such notice. Explanation.—The reference to the Collector in the foregoing provisions of this sub-section shall, in relation to any other law referred to therein, be construed, if the Collector is not the competent authority under such other law to make an award of the compensation or other amount payable for acquisition of land or other property thereunder, as a reference to the authority under such other law competent to make such award. (2) Where the Board has reason to believe that any property under acquisition is wakf property, it may at any time before the award is made appear and plea as a party to the proceeding. (3) When the Board has appeared under the provisions of sub-section (1) of sub-section (2) no order shall be passed under Section 31 or Section 32 of the Land Acquisition Act, 1894 or under the corresponding provisions of other law referred to in sub-section (1) without giving an opportunity to the Board to be heard. (4) Any order passed under Section 31 or Section 32 of the Land Acquisition Act, 1894 or under the corresponding provisions of the other law referred to in sub-section (1) without giving an opportunity to the Board to be heard, shall be declared void if the Board, within one month of its coming to know of the order, applies in this behalf to the authority which made the order." 6. Since impugned notifications were issued ignoring the circular dated June 14, 1975 and flouting the provisions contained in Section 91 of the Wakf Act, whole acquisition proceedings have become void and nonest. 7. For these reasons, the writ petition stands allowed and the impugned notifications dated November 30, 1990 and March 9, 1993 are set aside. There shall be no order as to costs.