Punjab Wakf Board, Ambala Cantt vs Natha Singh

S.S. Sodhi, J.

The controversy in appeal here is with regard to the conclusive nature of the notification under Section 5(2) of the Wakf Act, 1954 (hereinafter referred to as `the Act''), declaring thereby a particular property to be Wakf property. Contradictory views having been expressed of this matter by R.N. Mittal, J. in Punjab Wakf Board v. Commissioner Patiala Division and others, 1973 R.L.R. 467 and by M.M. Punchhi, J in Avtar Singh v. The Commissioner, Jullundur Division and others, 1984 P.L.J. 244 : 1984 R.R.R. 65, reference to a larger Bench was thus rendered inevitable. Hence this cases now being before us.

The dispute in the present case concerns a shop in the Loco shed at Jind. It was the case of the plaintiff. The Punjab Wakf Board is that this property was owned by it, but had been encroached upon by the defendant Natha Singh. The Punjab Wakf Board thus sougth a decree for possession against the said Natha Singh.

Defendant Natha Singh, on his part, denied that the property in suit was Wakf property. According to him, he had purchased it from the Managing OfficercumCustodian and had also deposited the requisite 1/4th of the sale price thereof and was thus entitled to its possession.

The trial Court held the property in suit to be wakf property in view of the notification issued under Section 5(2) of the Act declaring it to be so. It held this notification to be final and conclusive, in view of the provisions of subsection (4) of Section 6 of the Act. These were constructed to mean that the list of properties notified under Section 5(2) of the Act acquired finality unless this list was modified in pursuance of the decision of the civil court, in a suit filed within one year of the publication of such notification. No such suit having been filed within this period, the property in suit was held to be Wakf property and the plea of the defendant that he had purchased it from the Managing OfficercumCustodian was consequently negative. The plaintiff was accordingly granted the decree for possession as prayed for.

In appeal, however, the judgment and decree of the trial Court was set aside with the finding that the plaintiff had failed to produce the requisite evidence to prove that the property in question was Wakf property. Further, relying upon the judgment of R.N. Mittal, J. in Punjab Wakf Board''s case (supra), it was held that the defendant was not bound by the notification under Section 5(2) of the Act declaring the property in suit to be Wakf property. It is this finding that is now sought to be challenged in appeal.

The crucial question that falls for determination here is with regard to the nature and effect of the notification under Section 5(2) of the Act. It would be relevant in this behalf to advert to the provisions of Section 4 thereof which provide for a preliminary survey of Wakf properties in the State at the instance of the State Government by a Survey Commissioner. In terms of subsection (3) of Section 4 of the Act, the Survey Commissioner, after making such enquiry as he may consider necessary, is required to submit his report in respect of Wakfs existing at the date of the commencement of the Act, in the State or any part thereof, to the State Government, containing particulars enumerated thereunder. Section 5 of the Act then lays down that on receipt of such report the State Government shall furnish a copy of it to the Wakf Board and under subSection (2) thereof, the Board is required to examine the report forwarded to it and then publish in the official gazette a list of Wakfs in the State or as the case may be in any part of the State whether in existence at the commencement of the Act or coming into existence thereafter, containing such particulars as may be prescribed.

Next to note is Section 6 of the Act which deals with disputes regrading Wakfs. The relevant provisions here being those of subsection (i) and subSection (4) of Section 6, which are reproduced hereunder :

"(1) If any question arises whether a particular property specified as a Wakf property in a list of wakfs published under subsection (2) of Section 5 is a wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final.

Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of publication of the list of wakfs under subsection (2) of Section 5.

Provided further that in the case of the list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the wakf (Amendment) Act 1969, such suit may be entertained by the civil court within the period of one year from such commencement.

(2) xx xx

(3) xx xx

(4) The list of wakfs published under sub section (2) of Section 5 shall unless it is modified in pursuance of a decision of the civil court under subsection (1), be final and conclusive.

xx xx "

The expression "person interested in the wakf" has been defined under Section 2(h) to mean "an person who is entitled to receive any pecuniary or other benefits from the wakf and includes,

xx xx "

R.N. Mittal, J who had the occasion to consider these provisions of the Act in the Punjab Wakf Board case (supra), held that in case of any dispute between the Wakf Board and third persons, the notification under Section 5(2) of the Act would not be binding upon such third persons. It was observed in this behalf that such notification is final and conclusive only qua the Board, the mutwallis, the Wakf or any person interested therein, but persons claiming the property in their own right and not being those mentioned in clause (h) of Section 2 of the Act, would not be bound by it. In holding so, the Hon''ble Judge followed the judgment of the High Court of Rajasthan in Radhakishan and another v. State of Rajasthan and another; A.I.R. 1967 Rajasthan1. The relevant observations quoted from it being :

"The words `any person interested therein'' appearing in Section 6(1) mean no more than a person interested in a Wakf as defined in section 2(h). The words `the mutawalli of the Wakf'' and, therefore, the word `therein'' has been used to avoid repetition of the words `in the Wakf'' and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in a Wakf". The purpose of Section 6 is to confine the dispute between the Wakf Board, the mutawalli and a person interested in the Wakf. If a person who is a non Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property, his right, title and interest, cannot be put in jeopardy simply because that property is included in the list published under Section 5(2). The Legislature could not have meant that he should be driven to file a suit in a civil court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have "meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. Section 6(4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the Wakf as defined in Section 2(h) and to no other person".

The judgment of the High Court of Rajasthan in Radhakishan and another case (supra), was later affirmed by the Supreme Court in The Board of Muslim Wakf Rajasthan v. Radha Kishan and others, A.I.R. 1979 Supreme Court 289, where it was held that the list of properties declared to be Wakf properties in the notification published under Section 5(2) of the Act would not bind a stranger who is in possession of the property, merely because he happens to be a person affected by the publication of the list of Wakfs. The Court went on to observe under :

"It follows that where a stranger who is a nonMuslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title with in a period of one year. The special rule of limitation laid down in provision to subsection (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under subsection (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises".

The law thus having been settled by the highest Court of the Land no scope survives for any different view holding the field. This being so, we are with respect constrained to hold that the judgment of this Court in Avtar Singh''s case (supra) does not lay down correct law, whereby it was held that by virtue of Section 6 of the Act, the list of Wakf properties published in the notification under Section 5(2) of the Act, becomes final and conclusive and is to be treated as Wakf property without any further evidence or proof. It deserves mention here that in this case, neither the earlier judgment of R.N. Mittal, J. in Punjab Wakf Board''s case (supra), nor that of the Supreme Court in The Board of Muslim Wakf Rajasthan''s case (supra), was cited or noticed, therefore but for this omission, we have no doubt that Avtar Singh''s case (supra), would have been decided differently.

It follows, therefore, that the notification under Section 5(2) of the Act declaring property mentioned therein to be Wakf property, cannot be treated as binding upon the persons other than "persons interested in the Wakf," as defined in clause (h) of Section 2 of the Act. In the present case besides this notification, there is no other evidence, as found by the lower appellate court, to hold that the property in suit to be Wakf property. This being so, no exception can be taken to the judgment and decree of the lower appellate court setting aside the decree for possession granted to the Punjab Wakf Board.

In this view of the matter, the further question founded upon Section 66A of the Act, as mentioned in the referring order, does not arise and consequently calls for no comment.

This appeal is accordingly hereby dismissed. There will, however, be no order as to costs.

I agree.

Sd/ D.S. Tewatia Judge.