LPA No.31 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.31 of 2011 (O&M) DATE OF DECISION: JANUARY 13, 2011 Municipal Committee, Fazilka .....APPELLANT Versus Punjab Wakf Board, Chandigarh and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL --- Present: Mr.Rahul Sharma, Advocate, for the appellant. .. SATISH KUMAR MITTAL, J. Municipal Committee, Fazilka has filed this Letters Patent Appeal against the order dated 20.7.2010 passed by the learned Single Judge, whereby the writ petition filed by the appellant for quashing the notification dated 9.10.1989 being illegal and void, has been dismissed on the ground that the appellant has effective remedy to raise the dispute with regard to the land in dispute before the Wakf Tribunal created under the provisions of Wakf Act, 1995. Though this appeal is barred by limitation as along with the appeal the appellant has filed an application (CM No.100 of 2011) for condonation of 131 days of delay in filing the appeal, however, without taking the said delay into consideration, we have heard the learned counsel LPA No.31 of 2011 (O&M) -2- for the appellant on merits and gone through the record of the case as well as the order passed by the learned Single Judge. The case of the appellant is that it is owner of the land in dispute measuring 15 Kanals 10 Marlas and it is so recorded in the revenue record since 1944-45. However, the Punjab Wakf Board (respondent No.1 herein) without issuing notice and providing an opportunity of hearing to the appellant, declared the said property as a Wakf by taking the said land as a graveyard for Muslims under Section 27 of the Wakf Act, 1954 (which is now repealed), and the said decision of the respondent-Board was published in the Official Gazette on 9.12.1989. Learned counsel for the appellant raised the contention that the order dated 9.10.1989 passed by the Wakf Board was totally illegal and in violation of the principles of natural justice as no notice or opportunity of hearing was provided to the appellant before passing the said order. He further argued that this Court under Article 226 of the Constitution of India could have entertained the writ petition in spite of the alternative remedy available to the appellant before the Wakf Tribunal. Though the aforesaid contention seems to be attractive, but not acceptable to us because whether the land in dispute is a graveyard or not, is a disputed question of fact, which can effectively be determined by the Wakf Tribunal, which has been empowered to proceed in the matter like a civil court. In spite of the fact that the impugned decision dated 9.10.1989 was published in the Gazette of India, the appellant-Municipal Committee did not take any steps to challenge the said decision before the Civil Court because any decision made by the Wakf Board under Section 27 of the old LPA No.31 of 2011 (O&M) -3- Act could have been challenged by the aggrieved person, who is not a Muslim, before the Civil Court and the decision of the Wakf Board under the said provision qua non-Muslims was not final. Further, on the request made by the respondent-Wakf Board, the mutation of ownership with regard to the land in dispute was sanctioned in favour of the Wakf Board vide Mutation No.2019 dated 14.12.2008. Even after the change of mutation, the appellant did not file the writ petition for about two years. Undisputedly, the Wakf Board, 1954 was repealed and the new Wakf Act, 1995 came into force on 1.1.1996. Section 112(2) of the said Act reads as under:- “112. Repeal and savings.-(1) xx xx xx (2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.” Under the new Act, the Wakf Tribunal has been constituted to deal with any dispute, question or other matter relating to the wakf. Sub-section(2) of Section 83 of the Wakf Act, 1995 provides that “any mutawalli person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. According to sub- section (4) the Wakf Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I. Sub-section (5) further provides that the Tribunal shall be deemed to be a civil court and shall have the same LPA No.31 of 2011 (O&M) -4- powers as may be exercised by a civil court under the Code of Civil Procedure, while trying a suit, or executing a decree or order. The order of this Tribunal is to be executed by the civil court according to the provisions of the Code of Civil Procedure. In view of the creation of the Wakf Tribunal under Section 83 of the Wakf Act, 1995, the jurisdiction of the civil court has been barred. In our opinion, if the appellant is aggrieved by the order dated 9.10.1989 passed under the old Wakf Act, 1954, which, in view of Section 112(2), is deemed to have been passed under the new Wakf Act, 1995, may approach the Wakf Tribunal, which is functioning like a civil court. Further, in our opinion, the issue whether the land in dispute is a graveyard or a wakf property, is a question of fact which can effectively be determined by the Wakf Tribunal, which has been empowered to proceed in the matter like a civil court. In light of this factual and legal position, in our opinion, the learned Single Judge has rightly dismissed the writ petition while observing that the appellant has effective alternative remedy to approach the Wakf Tribunal under the Wakf Act, 1995. We do not find any illegality in the impugned order passed by the learned Single Judge. In view of the aforesaid, Letters Patent Appeal is dismissed. (SATISH KUMAR MITTAL) JUDGE January 13, 2011 ( M. JEYAPAUL ) vkg JUDGE