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J&K High Court · body

2014 DIGILAW 303 (JK)

Mohd. Farooq Salari v. State Of J&K

2014-07-15

Hasnain Massodi

body2014
1. Administrator, Auqaf Islamia Jammu vide advertisement notice No. AIJ/02/2299-2300 dated 04.08.2007 invited offers in a sealed cover from interested parties identified as beneficiaries under the Jammu & Kashmir Wakaf Act, 2001, for allotment on lease of a plot of Wakaf land measuring 3 kanals & 11 marlas situated at Auqaf Complex, Gandhi Nagar Jammu. 2. The notice fixed Rs. 1,86,00000/- as minimum bid. Sh. Jamil Chowdry-respondent no. 3 herein, responded to the notice and deposited an amount of Rs. 18,60,000/- as CDR as required by the notice. 3. Petitioners claim to be Muslims by faith, were interested in protection and preservation of Wakaf property from any loss or mis-use. They are aggrieved that allotment on lease of the aforesaid plot is detrimental to the interests of Auqaf Islamia, Jammu. The land, according to petitioners, can be put to better use so as to generate more income for Auqaf. 4. Petitioners' case is that the Auqaf Islamia Jammu earlier in 1984 decided to raise a multi-storey shopping complex on the land in question and to generate funds for raising complex, decided to accept Rs. 5000/- per head contribution from the Muslims living in the Jammu City and outside and thereafter allot shops so constructed in their favour Respondent no. 2 claims to have deposited an amount of Rs. 5000/- with Auqaf Islamia, Jammu on 25.02.1984. It is averred that respondent no. 1 & 2 instead of raising shopping complex, as earlier resolved, decided to lease out the property and floated notice dated 04.08.2007 in this connection. 5. Petitioners insist that respondent no. 3 is without any business or other sources of income as would make his offer of Rs. 1,86, 00000/- bona-fide and genuine. They suspect that respondent no. 3 is acting on behalf of respondent no. 4, who not beneficiary under Jammu & Kashmir Wakaf Act, 2001, is not in a position to himself make the bid for allotment of land in question. It is stated a shop in Gandhi Nagar area fetches minimum amount of Rs. 50 lacs as premium and that any construction raised on the land in question is going to make respondent no. 4 earn millions at the cost of interests of Auqaf Islamia Jammu. 6. It is alleged that respondent no. 3 in execution of conspiracy hatched with respondent no. 4 to grab the prime land, has mis-represented the facts to respondent no. 4 earn millions at the cost of interests of Auqaf Islamia Jammu. 6. It is alleged that respondent no. 3 in execution of conspiracy hatched with respondent no. 4 to grab the prime land, has mis-represented the facts to respondent no. 1 & 2 and got the offer accepted and allotment made in his favour. 7. It is next pleaded that as proposed lease is to be for 40 years with permission to the allottee to raise permanent structure on the leased out land, the transaction in effect amounts to sale of the Wakaf property. Petitioners insist that Wakaf property interms of Jammu & Kashmir Wakaf Act, 2001 cannot be leased out for a period exceeding three years in case of agricultural land and one year in case of non-agricultural land. It is averred that the transaction, therefore, is not permissible under law and liable to be set aside. 8. To substantiate their grievance that the land in dispute is being in effect sold at a throw away price, petitioners refer to the Wakaf Land in Gandhi Nagar in Jammu with shopping complexes constructed on it, that according to petitioners, generated far more income than the proposed transaction. 9. Petitioners on the strength of averments made in the petition, seek following relief:- (i) Writ of certiorari by quashing allotment of vacant land measuring 3 kanal 11 marlas situated near Auqaf Complex Gandhi Nagar Jammu in favour of respondents 3 and 4. (ii) Writ of mandamus commanding respondents 1 & 2 to utilize the aforesaid piece of land in a profitable and useful manner as prescribed in Jammu & Kashmir Wakaf Act, 2001, by raising the Shopping Complex and allotting the shops by auction after due publication. (iii) Writ of prohibition restraining respondent no. 1 & 2 from handing over the possession to respondent 3 & 4 and also restraining them from raising any sort of construction on the aforesaid land. 10. The writ petition is opposed by respondents 1 & 2 inter-alia on the ground that the land in question already stands leased out to respondent no. 3 in accordance with Section 58 of the Jammu & Kashmir Wakaf Act, 2001 read with Proviso to Section 43 and that the possession of the land stands transferred to respondent no. 1 after he executed lease agreement in favour of respondent no. 1 & 2. 11. 3 in accordance with Section 58 of the Jammu & Kashmir Wakaf Act, 2001 read with Proviso to Section 43 and that the possession of the land stands transferred to respondent no. 1 after he executed lease agreement in favour of respondent no. 1 & 2. 11. Petitioners are said to have no right or cause to question allotment of land to respondent no. 2 & 3. While admitting that only one person i.e. respondent-3 made the offer, respondent no. 1 & 2 maintain that the notice was given due publicity and published in three local dailies of the State and three more persons mentioned in para 11 of the reply filed by respondents purchased the bid documents but did not make any offer. 12. It is denied that respondent no. 3 has acted at the behest of respondent no. 4, as respondent no. 4 is a non-beneficiary in terms of section 58 of Jammu & Kashmir Wakaf Act, 2001. It is also denied that the period of lease i.e. 40 years is not permissible under law. It is stated that as the offer made by respondent no. 3 was minimum bid offered, the land in question was allotted to respondent no. 3 and formal lease agreement executed by the parties on 18.12.2007. To justify the minimum reserved bid it is pleaded price reserved bid per kanal i.e. Rs. 52,39,437/- is comparable with the approved price authenticated by Revenue Circle. Respondents insist that the approved rate per kanal in the area for Commercial "A" site is Rs. 70 lacs. 13. Respondent no. 3 opposes the writ petition almost on identical grounds as urged in the reply filed by respondents 1 & 2. It is insisted that petitioners have no cause or grievance to maintain the writ petition and that the writ petition, therefore, is not maintainable and liable to be dismissed at the threshold. 14. It is alleged that the writ petition is on camouflage, blackmailing tactics adopted by the petitioners to extract money from respondent no. 3 who because of litigation has not been in a position to make use of the land in question though duly allotted in his favour and the possession handed over more than six years back. It is insisted that respondent no. 3 who because of litigation has not been in a position to make use of the land in question though duly allotted in his favour and the possession handed over more than six years back. It is insisted that respondent no. 3 in a bona-fide manner purchased bid documents and made his offer, adhered to the minimum reserved bid laid down in the notice and was able to get the land allotted in his favour. It is pleaded that all the required formalities laid down under the Jammu and Kashmir Wakaf Act, 2001 and rules and regulations governing the matter were followed and proper lease deed executed by the parties. Respondent no. 3 seeks dismissal of writ petition that according to him is based on wrong, incorrect, erroneous and concocted averments. 15. I have gone through the pleadings as also the record available on the file. I have heard learned counsel for the parties. 16. It may be pointed out at the outset that though petitioner no. 2 claims to have deposited Rs. 5000/- in response to invitation to offer, extended by respondents sometime in 1984 signifying their intention to construct a shopping complex on the land in question, yet, they do not seek a direction for allotment of land in question in their favour. The averments as regards deposit of Rs. 5000/- seemingly has made to show the interest in the subject matter of the writ petition in addition to their interests as Muslims in profitable use of Wakaf property. 17. The main plank of petitioner's case is that the transaction in question shall not generate income from the Wakaf property in question as would be collected by Auqaf Islamia Jammu, in the event, shopping complex is constructed on it and the shops let out on receipt of premium. It is next pleaded that the transaction has not been made in accordance with mandate of Jammu & Kashmir Wakaf Act, 2001. 18. The Jammu & Kashmir Wakaf Act provides for better administration and supervision of Wakafs in the State. The provisions of the Act apply to all Wakaf whether created before or after commencement of this Act. Section 7 of the Act provides for establishment and constitution of Wakaf Council. Section 11 details the functioning of the Council. 18. The Jammu & Kashmir Wakaf Act provides for better administration and supervision of Wakafs in the State. The provisions of the Act apply to all Wakaf whether created before or after commencement of this Act. Section 7 of the Act provides for establishment and constitution of Wakaf Council. Section 11 details the functioning of the Council. Section 11(e) saddles the council with the responsibilities to ensure that Wakafs under it are property maintained and administered in accordance with the provisions of the Act and the objects of the Wakafs. Clause (k) Section 11 clothes the Council with the power to lease out the property belonging to Wakafs. Section 43 of the Act, prohibits permanent alienation of Wakaf property. In terms of the aforesaid proviso, transfer of any Wakaf property (immovable) by way of sale gift, exchange or mortgage or simple mortgage without possession of leasehold rights, any alienation of Wakaf property by act of parties, or a decree or order of Court or of a Revenue Officer, is void ab initio. Proviso (1) Section 43 provides that in case of lease or simple mortgage of leasehold rights, such transfer is to be effected with the prior sanction of the Council. However, lease of Wakaf property is to be affected by public auction and subject to confirmation of the Council. Where a lessee has less than 50% share in the profit and loss in the partnership business and/or parting with the physical possession of the lease property shall be deemed to be alienation within meaning of the Act. 19. Having taken overview of the provisions of Jammu & Kashmir Wakaf Act, 2001, relevant to the present controversy, let us now try to find out whether lease in question satisfies the requirements laid down in Section 43 and other provisions of the Act. 20. From perusal of record made available by learned counsel for respondents Mr. S.S. Ahmad, it transpires that the proposal to lease out the land in question was initiated by Administrator, Auqaf Islamia, Jammu and approved by Chairman State Wakaf Council. The Chief Executive officer, Jammu & Kashmir Wakaf conveyed vide communication No. SWC/07/279/94-96 dated 03.08.2007 the decision to Administrator, Auqaf Islamia Jammu-respondent no. 2 and requested him to take steps to lease out the land in question by open auction as also the 2nd Floor, Wakaf building, Residency Road, and land measuring 11 kanals, at Parra Borian. The Chief Executive officer, Jammu & Kashmir Wakaf conveyed vide communication No. SWC/07/279/94-96 dated 03.08.2007 the decision to Administrator, Auqaf Islamia Jammu-respondent no. 2 and requested him to take steps to lease out the land in question by open auction as also the 2nd Floor, Wakaf building, Residency Road, and land measuring 11 kanals, at Parra Borian. Respondent no. 2 acting on directions conveyed to him, issued tender notice No. AIJ/02/2299-2300 dated 04.08.2007 inviting sealed bids for the disputed land as also for other three Wakaf properties shown in the notice. The notice was published in Urdu daily Kashmir Uzma and Kashmir Times published from Jammu on 06.08.2007 indicated the minimum bid as also minimum annual rent for the lease offered through notice. The notice was also published in News Paper Greater Kashmir published from Srinagar. 21. Respondent no. 3 responded to the Tender notice and offered to pay Rs. 1,86,00000/- as consideration or grant of leasehold rights in respect of land in question. He happened to be only bidder to have completed all the formalities including deposit of Rs. 18,60,000/- as CDR. He however, sought relaxation in clause 6 of the notice in terms whereof he was to deposit 75% of the bid amount at the time sealed bids were opened. The proposal for allotment of the land in dispute in favour of respondent no. 3 with liberty to deposit 75 % of the offered amount within twenty days i.e. by or before 13.09.2007 and balance amount at the time of execution of lease agreement was placed before State Wakaf Council. The proposal came up in 8th meeting of the council held on 27.08.2007 at SKICC Srinagar, as supplementary agenda item No. 08.21. State Wakaf Council considered the matter and passed the following resolution:- "Sanction is hereby accorded to the grant of lease for Wakaf land measuring 3 kanals and 11 marlas situated at Auqaf commercial Complex, Gandhi Nagar Jammu, as per section 58 of Wakafs Act 2001 in favour of Sh. Jameel Choudry S/o Sh. S.A. Chowdray R/o 5-A Gandhi Nagar Jammu against premium of Rs. 1,86,000,00/- (Rupees one crore, eighty six lacs and sixty thousands only) and annual rent @ 3.6 % of the offered premium i.e. Rs. Jameel Choudry S/o Sh. S.A. Chowdray R/o 5-A Gandhi Nagar Jammu against premium of Rs. 1,86,000,00/- (Rupees one crore, eighty six lacs and sixty thousands only) and annual rent @ 3.6 % of the offered premium i.e. Rs. 6,71,760/- with a step up 5% of the rent charged at the time for every subsequent/fresh spell of lease with the condition that 75 % of offered amount be deposited by or before 13th of September, 2007 failing which security amount will be forfeited." 22. Respondent no. 3 deposited 75 % of the approved bid within stipulated time. The Chairman Wakaf Council on 26.11.2007 directed implementation of the decisions taken by the Council in its 8th meeting held on 27.08.2007 at SKICC Srinagar. The Chief Executive Officer State Wakaf Council vide communication no. SWC/332/225-26 dated 26.11.2007 asked respondent no. 2 to implement the decisions taken in the meeting. 23. The disputed property was handed over to him by respondent no. 2 on 18.12.2007. Respondent no. 3 executed formal lease deed in favour of respondent no. 2 on 31.01.2008. Lease deed was registered on 01.02.2008. 24. The procedure followed for allotment/lease of land in dispute, referred to in preceding para, would indicate that allotment has been made in strict accordance with Jammu & Kashmir Wakaf Act, 2001. In the first place, as required under Section 43 of the Act; the decision to lease out the disputed land was given wide publicity and notice published in three local dailies, two published in English and one in Urdu. This was done to ensure that all the aspirants for the proposed lease have an opportunity to submit their offer to the Administrator Auqaf Islamia, Jammu to grant lease. To give the proposal maximum publicity is not only to get the best price to give everyone fair opportunity to compete for the lease but also to rule out all chances of nepotism and favouritism. 25. In the present case, respondents 1 & 2 acted in all fairness by giving due publicity to the proposal and further fixed the minimum reserved bid. Respondent 3, as already pointed out was only aspirant for the proposed lease and satisfied all the requirements spelt out in the notice. He deposited CDR amount well in time. The proposal to lease out the land in dispute was taken with the approval of Chairman, Wakaf Council. Respondent 3, as already pointed out was only aspirant for the proposed lease and satisfied all the requirements spelt out in the notice. He deposited CDR amount well in time. The proposal to lease out the land in dispute was taken with the approval of Chairman, Wakaf Council. Once steps were taken to lease the property, offers received, the formal proposal was placed in supplementary Agenda as item no. 08.21 before State Wakaf Council in its 8th meeting held on 27.08.2007 at SKICC, Srinagar. The proposal met approval of the Council and follow up action was taken only after such an approval was accorded. 26. In the circumstances, all rules and regulations were adhered to while granting lease in question to respondent no. 3. Petitioners' case that a multi-storey shopping complex, if raised, on the land in dispute would have fetched much more than amount offered by respondent no. 2, is based on conjectures and surmises. Petitioners while making such averments do not visualize the amount involved in raising shopping complex on land in dispute and interests respondents 1 & 2 payable on the resources mobilized for raising such a construction. In any case, once the management of Wakaf is entrusted under State Wakaf Council, to administer Wakaf property, the Council is expected to have decision in the best interests of the Wakaf, moreso, when the record available does not point to any mala-fides on part of the Wakaf Council or any member of the council or its functionaries having any role in allotment of Wakaf property. 27. Petitioners' case that respondent no. 3 has only acted as front man for respondent no. 4 a non-beneficiary in terms of Jammu & Kashmir Wakaf Act, 2001, again does not find support from the available record. The averments made in this regard are nothing except a bald statement without any substance. The plea that the council is not competent to lease out the property for non-commercial purposes beyond one year, also is devoid of merit and does not find support from any of the provision of Jammu and Kashmir Wakaf Act, 2001. 28. For the reasons discussed, the writ petition is bereft of merit and is dismissed accordingly Interim direction, if any, shall also stand vacated. Dismissed.