Punjab Wakf Board vs Joint Development Commissioner and Others

Daya Chaudhary, J.—This judgment shall dispose of C.W.P. Nos. 6303 and 12915 of 2006 as both the petitions arise from the impugned order dated 16.3.2006 passed by Joint Development Commissioner.

The facts are being taken from C.W.P. No. 12915 of 2006 (Punjab Wakf Board v. Joint Development Commissioner and Ors.).

Punjab Wakf Board has filed the present writ petition for quashing of order dated March 16, 2006 passed by Joint Development Commissioner (exercising the powers of Commissioner) vide which the appeal filed by Gram Panchayat has been allowed and order the June 13, 2005 passed by Additional Deputy Commissioner (Development)-cum-Collector, Hoshiarpur has been set aside. The Commissioner has further directed the respondents to vacate the land and hand over the possession to Gram Panchayat before April, 30, 2006.

Briefly the facts of the case, as pleaded in the writ petition, are that the Gram Panchayat filed an application before District Development and Panchayat Officer-cum-Collector u/s 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (for short ''the Act'') for eviction of respondents Nos. 4 to 6 from the land measuring 41 kanals 11 marlas bearing Khasra Nos. 47 min (20-16), 47 min (20-15), Khatoni Nos. 347, 348 Khewat No. 275 situated in village Lalewal, Tehsil Dasuya, District Hoshiarpur on the basis of entries in the Jamabandi for the year 1995-96. The application was allowed and order of eviction against petitioner and respondents Nos. 4 to 6 was passed on May 21, 2003 by D.D. & P.O.-Cum-Collector and the same was challenged before the Joint Development Commissioner (IRD) (exercising the powers of Commissioner) by respondents Nos. 4 to 6.

The Joint Development Commissioner allowed the appeal to the extent that the impugned order of the lower Court was set aside and the ca 3 was remanded to ABC(D) Hoshiarpur with the direction that if the title is decided in favour of the gram Panchayat, it would be competent to evict them by seeking eviction proceedings u/s 7 of the Act.

Additional Deputy Commissioner (D) exercising power of the Collector, held that the Punjab Wakf Board is the owner of the property in dispute and the claim of the Gram Panchayat was dismissed. Later on the Gram Panchayat filed appeal u/s 11(2) of the Act in which operation of order passed by ADC (D) was stayed till further orders. Meanwhile C.W.P. No. 17446 of 2005 was filed by respondents 4 to 6 in which the following, order was passed:

Learned Counsel for the parties are ad idem that the petition be disposed of with a direction to the appellate authority to decide the appeal within a time frame and that during the pendency of the appeal, the petitioner shall not be dispossessed.

In view of the above the petition is disposed of with a direction to the appellate authority to take a conscious and cautious decision upon the appeal on the date already fixed i.e. March 8, 2006, as indicated by the learned Counsel for the parties. If it not possible to dispose of the appeal on the date fixed, it be decided on the next adjourned date but no further adjournment should be granted to any parties. However, during the pendency of the appeal, the petitioner shall not be dispossessed.

The Commissioner vide order dated March 16, 2006 allowed the appeal of the Gram Pancahyat and order dated June 13, 2005 passed by Addl. Deputy Commissioner-cum-Collector was set aside and it was held by the Commissioner in the order dated March 16, 2006 that the title of land vests with the Gram Panchayat under the provisions of Punjab Village Common Lands (Regulation) Act, 1961 and respondents were directed to vacate the land and hand over possession to the Gram Panchayat. Two separate writ petitions have been filed, one by Punjab Wakf Board and another by Lal Singh, Hazara Singh and Jit Singh impugning the order of Commissioner dated March 16, 2006, which is subject matter of challenge in the present writ petitions.

Mr. C.R. Dahiya, learned Counsel for the petitioner-Board has argued that the property in dispute has been recorded as ''Maqbooja Ihle-Islam'' (grave-yard) in the revenue record and the same has been put to agriculture use. He argued that merely by changing the user, the land will continue to be Wakf property and the same has no effect. He has further argued that the Commissioner has no jurisdiction to decide the controversy in view of the provisions of Wakf Act as well as the law laid down in a judgment reported as 184 P.L.J. 244 wherein it has been held that once a notification has been issued by the Government of India u/s 5(2) of the Wakf Act read with Rule 4 of Punjab Wakf Rules, such declaration of land as Wakf property is final and conclusive by virtue of Section 6 of Punjab Village Common Land (Regulation) Act, 1961.

It has further been argued by learned Counsel for the petitioner that the Commissioner has failed to take into consideration the fact that once the property has been declared as Wakf Property and furthermore as per instructions of the Director Land Record, Jalandhar dated 21.5.1972 and the Director of Panchayati Raj and Community Development, Punjab dated 4.12.1975 as well as Section 2(g)(ix) of the Act, property comes within the exception being religious property.

Learned Counsel for the petitioner has relied upon judgments reported as Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, and Sayyed Ali and Others Vs. Andhra Pradesh Wakf Board Hyderabad and Others, in support of his argument. Mr. Rajesh K. Dadwal, learned Counsel appearing for the petitioner in C.W.P. No. 6303 of 2003 has relied open judgments reported as Jarnail Singh v. Dveinder Kumar and Ors. 1991(2) R.R.R. 111, Dalip Chandv. Block Development and Panchayat Officer 1991(2) R.R.R. 394, Punjab Wakf Board Vs. Gram Panchayat and Another, and Punjab Wakf Board v. Punjab State 1997(2) P.L.J. 209 in support of his claim.

Separate written statements have been filed which are on record.

In the written statement filed on behalf of the respondent No. 3 Gram Pancahyat, a preliminary objection has been raised that the petitioner has not approached this Court with clean hands and as such is guilty of concealing the material facts from this Court. The petitioner has not mentioned in the writ petition that a civil suit was filed in the Wakf Tribunal, Hoshiarpur bearing Civil Suit No. 4 of 9.11.2002 wherein a declaration was sought to the effect that the property in question was Wakf property and that Suit was dismissed vide order dated October 27, 2004 which is annexed with the written statement Annexure R-3/1.

On merits also, it has been averred that petitioner is a trespasser over the Panchayat land and order of eviction was rightly passed against respondents Nos. 4 to 6 by the Joint Development Commissioner and the petitioner in connivance with respondents 4 to 6 are trying to grab the panchayati land in the wake of stray entry in the revenue record. Even in the jamabandi for the year 1961-62, the column of ownership shows that the land is Shamlat Deh. As per order dated May 29, 2003 (Annexure R3/2) the Gram Panchayat is the absolute owner and the land in dispute belongs to the Gram Panchyat.

Mr. K.S. Cheema, learned Counsel appearing for Gram Panchayat has argued that two ingredients of Wakf as given in Section 3(r) of the Wakf Act, 1994 are missing in the present case. He argued that notification is not conclusive evidence of ownership of Wakf Board and it does not bind the gram panchayat. Admittedly, no notice was issued to the gram panchayat before inclusion in the Wakf property. He has relied upon judgments reported in Punjab Wakf Board Vs. Gram Panchayat, ; Abdul Rais and Ors. v. Madhya Pradesh Wakf Board and Ors. 2005(1) Apex Court Judgment 433; Dev Raj and Others Vs. Teja Singh and Others, ; The Gram Panchayat Village Kariha v. The Commission Jalandhar Division, Jalandhar and Ors. (1989)95 P.L.R. 291:1989 P.L.J. 98; Punjab Wakf Board v. Natha Singh 1988(1) R.R.R. 122 : 1988 P.L.J. 10; The Punjab Wakf Board v. Jagjit Singh 1985 S.L.J. 255; Municipal Committee Samrala v. Punjab Wakf Board 1982 RLR 159 and Punjab Waif Board v. Mohan Singh and Ors. 1982 P.L.J. 343 in support of his arguments.

In the written statement filed on behalf of respondents Nos. l and 2 it has been averred that the writ petition is not maintainable as respondent Nos. 4 to 6, who claim the land through petitioner Board, are mere trespassers over the panchayat land. The petitioner Board in connivance with respondents Nos. 4 to 6 are trying to grab the panchayat land in the wake of stray entry in the revenue records.

We have heard the arguments of the learned Counsel for the parties, perused the impugned orders and have gone through the record the case.

The case of the petitioner is covered by the ratio of the judgment of the Hon''ble Supreme Court in Punjab Wakf Board v. Gram Panchayat 2000(2) P.LJ. 91. The said judgment deals with identical question of law and facts and the judgment relied upon by the petitioner i.e. Sayyed Ali and others v. A.P. Wakf Board''s case,2 (supra) and, therefore, the said judgment relied upon by the petitioner is not applicable to the facts of the, present case.

As per Section 310 of the Wakf Act, 1995, the essentials of Wakf are (i) dedication by a person professing Islam for a pious, religious or charitable purpose (ii) by way of user. Both the ingredients are missing in the present case. Moreover, notification is not conclusive of ownership of Wakf Board and Wakf Board has to show that he land was dedicated by a Muslim i.e. person professing Islam for charitable purposes and it has to be proved that the land was used as a Kabristan but in the case in hand, none of the ingredients is present. The issue in dispute has been discussed in the case reported as Dev Raj and Others Vs. Teja Singh and Others, .

The argument of the learned Counsel for the petitioner does not carry weight as admittedly no notice as per notification was issued to the Panchayat before inclusion of time property in Wakf properties. Moreover, limitation of one year does not apply for filing the suit by the Panchayat who is a third party as held by the Supreme Court in Punjab Wakf Board''s case (supra) and in Abdul Rais and Ors. v. Madhya Pradesh Wakf Board and Ors. 2005(1) ACJ 433.

Even in the jamabandis for the years 1961-62 and 1971-72 on which the petitioner-Board is relying, the Gram Panchayat has been recorded as owner of the property. The Panchayat has throughout been recorded as owner even before 1947 and the land in dispute has been Shamlat Deh. The fact regarding ownership of the Gram Pancahyat has been admitted by the Punjab Wakf Board through official witness Mohmood Hassan, who appeared as RW-5 before D.D.P.P. as is clear from the order dated May 29, 2003 and the land has been recorded in the name and ownership of the Panchayat.

It has also been admitted by RW-5 that neither any notice was served nor any objection was invited from the Gram Panchayat per provisions of Wakf Act before land was included in the notification. Moreover, the land has never been used as Kabristan and there are no Muslim houses in the Village.

In view of the observation made above, the writ petitions being devoid of any merit are hereby dismissed.