JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Rahul Sripat, learned counsel appearing for the defendant-appellant and Sri M.K. Gupta with Sri Amit Daga, learned counsel for the plaintiff-respondent No. 1. The other respondents are only formal parties. They were other defendants to the suit who have not preferred any appeal and as such have accepted the decree of the lower appellate Court. The counsel for the contesting parties agree for the disposal of appeal in their absence. Accordingly, dispensing service upon respondents No. 2, 3/1 to 3/3 the appeal was heard on merits. 2. The dispute in the suit giving rise to the present appeal is in respect of plot No. 80 (old No. 884 and 894) situate in village and kasba Sahapur, District Muzaffarnagar. 3. The Town Area Committee, Sahapur in a representative capacity instituted original suit No. 99 of 1986 against Illiyas and others for possession over the area marked in blue and red colour forming part of the aforesaid land as shown in the plaint map and for a decree of permanent injunction in respect of remaining land of the said plot. In the suit separate written statements were filed by defendants No. 1 and 2. The other three defendants who were the officials/agents of the U.P. Sunni Central Board of Waqf Lucknow were deleted and in their place defendant No. 3 U.P. Sunni Central Board of Waqf Lucknow itself was impleaded under the order of the Court. However, the defendant No. 3 did not file any written statement and failed to adduce any evidence in defence though it participated in the proceedings. The suit was dismissed by the Court of first instance vide judgment and order dated 20.2.1998 but the appeal preferred by the plaintiff Town Area Committee, Sahapur has been allowed and the suit for possession as well as permanent prohibitory injunction has been decreed with a mandatory direction to the defendant No. 3 to remove the existing constructions from the area of plot No. 80 which has been marked in blue and red colour in the plaint map. 4. Thus, the defendant No. 3, the U.P. Sunni Central Board of Waqf Lucknow alone had come-up in this second appeal. 5. Briefly stated the facts of the case are that the disputed land i.e. plot No. 80 in the basic year i.e. 1359 Fasli was recorded as ‘banjar’ and ‘marghat’. 4. Thus, the defendant No. 3, the U.P. Sunni Central Board of Waqf Lucknow alone had come-up in this second appeal. 5. Briefly stated the facts of the case are that the disputed land i.e. plot No. 80 in the basic year i.e. 1359 Fasli was recorded as ‘banjar’ and ‘marghat’. It is said that with the abolition of Zamindari in U.P. it had vested in the State of U.P. by virtue of Section 4 of U.P.Z.A. & L.R. Act, 1950 (hereinafter referred to as an Act) and its management was entrusted to the Town Area Committee, Sahapur by a notification issued under Section 117 of the Act. Later, the said land came to be recorded as ‘kabristan’. The defendants on the area shown by blue colour in the plaint map constructed a room and a ‘masjid’ and were in the process of constructing 10 shops with a ‘veranda’ on the area shown by red colour in the plaint map which constructions were completed during the pendency of the proceedings. Therefore, the Town Area Committee, Sahapur contended that as the land was entrusted to it for the purposes of management by the State Government, the defendants have no authority of law to raise any constructions and the possession of the said area of the plot is liable to be restored to it. The defendant No. 1 through his written statement contended that the plot in dispute is recorded as ‘kabristan’. It is the property of the U.P. Sunni Central Board of Waqf Lucknow on whose behalf a committee has been constituted to manage and supervise the working of the ‘kabristan’. Even if in the basic year the land was recorded as ‘banjar’ nonetheless, as it is in use as ‘kabristan’ it would be treated as ‘kabristan’ and would not vest in the State of U.P. So the plaintiff Town Area Committee, Sahapur is not entitled for any relief. The defendant No. 2 in his written statement pleaded that plot No. 884 and 894 were the properties of one Rahamat Illhai Khan. The land of plot No. 894 was given to his father by the successors of the aforesaid Rahamat Illai Khan as a gift and thus, his father came in possession and started cultivating the same. The defendant No. 2 in his written statement pleaded that plot No. 884 and 894 were the properties of one Rahamat Illhai Khan. The land of plot No. 894 was given to his father by the successors of the aforesaid Rahamat Illai Khan as a gift and thus, his father came in possession and started cultivating the same. A part of plot No. 884 was also transferred by the successors of Rahamat Illhai Khan again in favour of his father vide document dated 15.12.1944. His father surrendered the entire land for the ‘masjid’ and ‘madarsa’ and himself became the mutwalli retaining part of land of Khasra plot No. 884 for himself. During the consolidation proceedings the aforesaid land was consolidated and was given a new number 80 and the remaining area of 884 came to be recorded as ‘banjar’. On the northern part of the said land there exists a ‘kabristan’ for the last 40 years. 6. The Court of first instance framed as many as four issues. Issues No. 1 and 3 were the main issues concerning the merits of the suit namely : 1- D;k oknh oknxzLr lEifRr dk ekfyd dkfct gSA 3- D;k oknxzLr lEifRr oDQ dfczLrku rfd;k ek:Q cM+k ckx dh feyfd;rh gS o dkfct gS ftldh bUrtkfe;k desnh lqUuh oDQ cksMZ ls Áfroknhx.k 3 yxk;r 5 gS\ vU; vuqrks"kA 7. The Court of first instance while deciding the aforesaid two issues came to the conclusion that the disputed Khasra plot No. 80 is not the land of the Town Area Committee, Sahapur but is a ‘kabristan’ and as such is a waqf property. Accordingly, the suit was dismissed. The lower appellate Court taking judicial notice of the photocopy of the gazette notification dated 15.5.1971 issued in exercise of powers under Section 117 of the Act held that it is the property of the Town Area Committee, Sahapur inspite of being in use as ‘kabristan’. Therefore, the appeal was allowed and the suit was decreed and the defendants were directed to remove their constructions from the disputed area of the plot and to handover possession to the plaintiff Town Area Committee, Sahapur. 8. Therefore, the appeal was allowed and the suit was decreed and the defendants were directed to remove their constructions from the disputed area of the plot and to handover possession to the plaintiff Town Area Committee, Sahapur. 8. Now in this appeal the following substantial questions of law have been raised for consideration : (1) Whether the land in dispute of plot No. 80 on the abolition of Zamindari in U.P. had vested in State of U.P. under Section 4 of U.P.Z.A. & L.R. Act and had been entrusted to the Town Area Committee, Sahapur for management under Section 117 of U.P.Z.A. & L.R. Act? (2) Whether the gazette notification issued under Section 117 of the U.P.Z.A. & L.R. Act vesting the land with the Town Area Committee was not required to be produced and proved in evidence in view of provisions of Sections 57 and 58 of the Evidence Act? (3) Whether the land recorded as ‘kabristan’ and treated to be a waqf is under the management of the Town Area Committee, Sahapur or is managed by U.P. Sunni Central Board of Waqf ? 9. The first two questions of law are interwoven and as such are being dealt with together. 10. It is admitted to the parties that in the basic year of 1359 Fasli the land in dispute i.e. plots No. 884 and 894 were recorded as ‘banjar’ and ‘marghat’ respectively. Subsequently, during the consolidation proceedings a new number 80 was given to the plots and the whole land was recorded as ‘kabristan’. 11. Under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 which came into force on 26th January, 1951 vesting of ‘estates’ took place w.e.f. 1.7.1952. The consequences of the vesting have been specified in Section 6 of the Act. The ‘estate’ has been defined under Section 3(8) of the Act. The land of public utility such as graveyards, cremation ground, mela land are also parts of the ‘estate’ and thus, stood vested in the State of U.P. under Section 4 of the Act with effect from the date of vesting. This is precisely what has been laid down by the Division Bench of this Court in Mohd. N. Khan v. State of U.P. and others, 1965 ALJ 609 : 1965 AWR 371. This is precisely what has been laid down by the Division Bench of this Court in Mohd. N. Khan v. State of U.P. and others, 1965 ALJ 609 : 1965 AWR 371. It has been laid down that the land whether belonging to a private person or vested in the Almighty, had to be mentioned in the register of properties. So even waqf land will be covered by the definition of ‘estate’ given in Section 3(8) of the Act and would as such stand vested in the State of U.P., under Section 4 of the Act. It has further been held that under the Act there is no indication whatsoever exempting waqf property from the operation of Section 4 of the Act. Therefore, even if at the relevant time the land in dispute was a graveyard and later during the consolidation proceedings came to be recorded as ‘kabristan’ and is treated to be a waqf property nonetheless it would not affect the consequences of vesting and shall stand vested in the State of U.P. under Section 4 of the Act. 12. The submission on the basis of the decision of the Supreme Court reported in AIR 1976 SC 1569 , Syed Mohd. Salie Labbai v. Mohd. Hanifa to the effect that a public graveyard constitutes a waqf and would always remain a graveyard or a ‘kabristan’ even if its use as such has been stopped is of no help to the appellant inasmuch as there is no dispute to the factual position that the land in dispute was and is a graveyard and a waqf property but it would not obliterate the effect of vesting under Section 4 of the Act. A graveyard which is a waqf shall ever remain to be a grave yard even if it vests with the State of U.P. 13. Section 117 of the Act provides that the State Government may [by general or special order published in the manner prescribed] declare that as from a date to be specified in this behalf all the lands vested in the State under Section 4 of the Act shall vest in the Gaon Sabha or any local authority. The aforesaid land on having vested in the State of U.P. was never entrusted to the Gaon Sabha. The aforesaid land on having vested in the State of U.P. was never entrusted to the Gaon Sabha. Thus, this land continued to remain vested in the State of D.P. and for the first time vide notification dated 15.5.1971 issued under Section 117, it was put under the management of the local body i.e. Town Area Committee Sahapur. 14. The word by “general or special order published in the manner prescribed” were substituted and introduced for the words “by the notification in gazette” by an amendment made vide U.P. Act No. 30 of 1975. So in the year 1971 the requirement of law for entrusting and vesting the land of the State Government in the local authority was by issuing a gazette notification. A gazette notification in this regard was issued in exercise of powers under Section 117 of the Act on 15.5.1971 which is not denied. However, the original of the same was not produced and proved in evidence. Only a photo copy of it was produced and shown to the Court. 15. Thus, in view of the above, the publication of the notification is not in dispute and what is disputed is only the admissibility of the notification in evidence without being formally proved. Therefore, a question arises as to whether the Court could have taken cognizance of such a notification. 16. The word “notification” has been defined under Section 29-A of U.P. General Clauses Act, 1904 to mean a notification published in the gazette of the State. A gazette notification issued under an Act is in the nature of subordinate legislation and is subject to the Act itself and cannot operate beyond the ambit of the Act. Thus, a notification issued by a statutory authority in exercise of its power under an Act is in the form by a delegated/sub-ordinate legislation. 17. Article 13 of the Constitution of India also specifies that ‘Law’ includes notification, apart from other things such as ordinance, bye-law, rule, regulation or custom etc. Thus, the definition of ‘law’ in clause 3(a) of Article 13 of the Constitution of India expressly includes a notification. Therefore delegated legislation, whatever may be its nomenclature, though made by executive, qualifies to be a ‘law’ for the obvious reason that it is made in the exercise of subordinate legislative power conferred by the legislature. 18. Thus, the definition of ‘law’ in clause 3(a) of Article 13 of the Constitution of India expressly includes a notification. Therefore delegated legislation, whatever may be its nomenclature, though made by executive, qualifies to be a ‘law’ for the obvious reason that it is made in the exercise of subordinate legislative power conferred by the legislature. 18. In Union of India v. Nihar Kant Sen and others, AIR 1987 SC 1713 a notification was issued under Section 4 of the West Bengal State Acquisition Act regarding vesting of land of an intermediary in the State. The copy of the relevant notification was not brought on record therefore, the High Court refused to take cognizance of the same. The Supreme Court however, held that the notification issued is a gazette notification which was published and therefore, High Court should have taken judicial notice of the same in view of Sections 56 and 57 of the Evidence Act. 19. The Full Bench of the Kerala High Court in Executive Officer, Chalakudy Panchayat v. V.P. Devassy, 1970 K.L.T. 991 (FB) laid down that a notification issued under an Act bringing a law into force is not required to be produced and proved in evidence and it is the duty of the Court to take judicial notice of it under Section 57 of the Evidence Act. 20. In State of Bombay v. F.N. Balsera, AIR 1951 SC 318 it was held that a notification issued under Section 139 of the Bombay Prohibition Act, 1939 which authorises the government to exempt any intoxicants or class of intoxicants from all or any of the provisions of the Act "has the force of law” as if made by the legislature itself. Similarly, in Kailash Nath v. State of Bombay, AIR 1957 SC 790 a notification issued under Section 4 of U.P. Sales Tax Act, 1948 exempting certain kinds of transactions from payment of sales tax was held to have a statutory force as it was issued under a statute. 21. Sections 56 and 57 of the Evidence Act, 1872 provides that fact judicially noticeable need not be proved and the Court shall take judicial notice amongst other of all laws in force in the territory of India. 21. Sections 56 and 57 of the Evidence Act, 1872 provides that fact judicially noticeable need not be proved and the Court shall take judicial notice amongst other of all laws in force in the territory of India. The word ‘laws’ is wide enough to include within its ambit acts of the legislature, rules and regulations framed therein and also the notification issued under the provisions of the Act. 22. In view of the above, the instant notification has the force of law and is not merely an executive instrument. 23. Thus, it was not at all necessary for the Court to have insisted upon the formal proof of such a notification which has been published in the gazette in exercise of powers under Section 117 of the Act. 24. In view of the above, the appellate Court committed no error in taking the judicial notice of the gazette notification dated 15.5.1971 and in coming to a conclusion that all lands including the suit land which had vested in the State of U.P. stood transferred to the Town Area Committee, Sahapur. 25. Accordingly, the first two questions formulated above are answered in favour of the plaintiff-Town Area Committee, Shahpur and it is held that the suit land stood vested under Section 4 of the Act in the State of U.P. which was duly entrusted to the Town Area Committee, Shahpur under Section 117 of the Act and no formal proof of the gazette was required as the Court is empowered to take judicial notice of the same. 26. The second aspect which arises for consideration is about the management of the said land even if it is treated to be a ‘kabristan’ and a waqf. 27. It is an acknowledged principle of Muslim Law that immemorial use of a property as a burial ground is sufficient for the creation of a waqf. The recording of a land in the revenue records as ‘kabristan’ is a valid presumption of a waqf by immemorial user. Waqf by user is also contemplated by Section 3(r) of the Waqf Act, 1995. Therefore, presuming that there was a waqf in respect of the land in dispute by immemorial user as it happened to be recorded as ‘kabristan’, the question arises as to the person/authority entitle to manage it. 28. Waqf by user is also contemplated by Section 3(r) of the Waqf Act, 1995. Therefore, presuming that there was a waqf in respect of the land in dispute by immemorial user as it happened to be recorded as ‘kabristan’, the question arises as to the person/authority entitle to manage it. 28. The administration of waqfs is governed by the Waqf Act, 1995 which repeals the earlier Waqf Act, 1954. Section 36 of this Act provides for compulsory registration of all waqfs with the Board whether created before or after the commencement of the said Act. In the State of U.P. separate Boards have been notified under Section 13 of the Waqf Act for Shia and Sunni waqfs. Section 43 of the Waqf Act provide that a previously registered waqf shall be deemed to be a registered waqf under this Act and it shall not be necessary to re-register it. Registration has to be done on an application moved in a prescribed form by the mutwalli, wakif or his descendants or a beneficiary or any muslim belonging to the section concerned. The Board concerned is enjoined upon to maintain a register of waqfs. Besides, the State Government after due survey by the Survey Commissioner appointed for the purpose is obliged under Section 4 of the Waqf Act to prepare and forwarded a list of all waqfs within the State of U.P. to the Board concerned who on examining it is required to publish it in the official Gazette. 29. In the instant case, there is neither any pleading or evidence that the ‘kabristan’ was ever registered as a waqf with the U.P. Sunni Central Board of Waqf. The defendant No. 3 appellant has not filed any written statement and had not even adduced any evidence in the suit. No list of waqfs or register was produced to show its registration as waqf so as to put it under the management of defendant No. 3-appellant. Thus, in the absence of such a pleading or evidence or in the absence of any material about the registration of the waqf by any other party, the conclusion is safe that the waqf in question is not a registered waqf and as such is outside the purview of the management of the defendant No. 3/appellant under Section 32 of the Waqf Act, 1995. Accordingly, the ‘kabristan’ in dispute or the waqf which was entrusted to the local body by the State under Section 117 of the Act shall continue to remain under the management and control of the Town Area Committee, Shahpur and would not be treated as vested with the U.P. Sunni Central Board of Waqf. Accordingly, defendant No. 3-appellant has no authority of law to raise any constructions either of shops or otherwise on the land of the ‘kabristan’ and to interfere with its management and possession of the Town Area Committee, Shahpur. 30. In the last Sri Rahul Sripat has feebly argued that in the suit for possession the relief of mandatory injunction directing for demolition of the constructions could not have been granted by the Court. The submission is of no substance and cannot be appreciated in view of the precedents available on the point. 31. The relief claimed in the suit was for recovery of possession over the area of the land in dispute marked by blue and red colour and for decree of permanent injunction restraining the defendants from encroaching upon the remaining area of the land in dispute. On the area shown of blue colour a room and a ‘masjid’ had already been constructed and on the area shown of red colour the defendants were in the process of constructing shops and a ‘veranda’ when the suit was instituted. The construction of these shops and the ‘veranda’ is said to have been completed during the pendency of the suit/appeal. The appellate Court while decreeing the suit had directed the defendants to remove their unauthorized constructions from the disputed land as per the Commissioner’s report paper No. 3C/3 which are in the form of shops and to deliver vacant possession of the land to the plaintiff. The Court has not directed for removal of any construction i.e. a room and a ‘masjid’ shown on the area marked with blue colour in the plaint map which were said to have been constructed prior to the institution of the suit. The defendant who is the owner of the said constructions has not been prevented by the decree from removing the said constructions before handing over the possession. Therefore, the decree in essence is of possession only. There was no need for any specific direction for removing the constructions. Such a direction was inherent in the relief claimed and granted. The defendant who is the owner of the said constructions has not been prevented by the decree from removing the said constructions before handing over the possession. Therefore, the decree in essence is of possession only. There was no need for any specific direction for removing the constructions. Such a direction was inherent in the relief claimed and granted. 32. In B. Gangadhar v. B.G. Rajalingam, AIR 1996 SC 780 it was held that the owner of the land who is wrongfully deprived of its possession has a right to recover possession of it and if any obstruction is raised by putting a construction pendente lite the owner has been given a right to get it removed without seeking a tortuous remedy of a separate suit of mandatory injunction. To put it differently the owner has a right to get such constructions removed in execution of a decree of possession thus meaning that the relief of removal of construction is consequential and inherent in such a decree. 33. In one decision of this Court reported in 1986 ACJ 376, Dakhilal Kushwaha v. 5th Additional District Judge and others it has been held that the plaintiff is entitled to enforce rights of possession against a trespasser and the Court cannot refuse such a relief for the reason that the suit is for possession only without any relief of mandatory injunction for demolition/removal of constructions so long as judgment-debtor is permitted to remove it in the absence of which the ownership of the structure is automatically passed to the decree holder. In an another reported decision of this Court AIR 1970 All 648 , Mohd. Ismile v. Ashiq Husain where a suit for possession of vacant land was filed and the defendant during its pendency had raised super structure it was held that he cannot claim advantage of the wrongful construction raised by him and even if directions to remove such constructions while decreeing the suit for possession were not given, the executing Court can order such removal. 34. 34. In the instant case, as the plaintiff had not claimed any right or interest in the constructions so raised by the defendant and as the Court permitted the defendant to demolish or remove the same before handing over possession of the land in dispute to the plaintiff, the decree passed would not vitiate even in the absence of a specific prayer for mandatory injunction. 35. In view of the aforesaid facts and circumstances, the appeal has no merits and is dismissed. The judgment and order of the lower appellate Court dated 31.3.2008 passed in Civil Appeal No. 141 of 1998 (Town Area Committee v. Illiyas and others) arising of original suit No. 99 of 1980 is upheld and confirmed. 36. Parties to bear their own costs. ————