C.R. No.5085 of 2003 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5085 of 2003 Date of Decision: 23.09.2009 Punjab Wakf Board .....Petitioner Versus Gurmit Singh and others ...Respondents Present: Mr. Jai Bhagwan, Advocate for Mr. Arun Palli, Senior Advocate for the petitioner. Mr. Ashok Aneja, Advocate for the respondents. 2. C.R. No.305 of 2004 (O&M) Gurmit Singh and others .....Petitioners Versus Punjab Wakf Board ...Respondent Present: Mr. Ashok Aneja, Advocate for the petitioners. Mr. Jai Bhagwan, Advocate for Mr. Arun Palli, Senior Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J. 1. The suit for recovery of possession before the Wakf Tribunal had been filed against the respondents terming them as persons, who were illegally occupying the property. The plaintiff sought the relief in suit on the basis that the property had been originally let out to Gurdev Singh in the year 1986 and after his death, C.R. No.5085 of 2003 -2- the defendants were continuing in possession of property. It was an admitted fact that the 1st defendant was the brother of Gurdev Singh and the defendant Nos.2 and 3 were the son and mother of the tenant. The defendents denied that the property belonged to the wakf and pleaded adverse possession. At the conclusion of trial and at the time of arguments, the defendants had given up the plea of adverse possession and admitted that the property belonged to the wakf. They contended that the property had been let out to Gurdev Singh and after his death, the right of tenancy had been inherited by them. They contended that the lease had not been limited to any particular period and therefore, the suit for recovery of possession was not maintainable. 2. The Tribunal held that the property belonged to the wakf. It also took note of the fact that the defendants were not in illegal occupation of the property but they were in possession of property as legal heirs of the deceased-Gurdev Singh. Drawing an adverse inference that the plaintiff did not file the rent deed, it held that the lease could not have been for a specified period only and if it were so and the lease in favour of Gurdev Singh had expired by efflux of time, the plaintiff ought to have produced the document. The same having not been done, the plea of determination of tenancy by efflux of time was found to be unacceptable. Although the issue relating to the character of property as wakf was held in favour of the plaintiff, the ultimate result was dismissal on the ground that no documentary evidence had been produced to show that the Wakf Board stood superseded and that the powers were being exercised by the C.R. No.5085 of 2003 -3- administrator at the time when the suit was filed. The authorization letter produced before the Court by the administrator to the Estate Officer was also not believed. The suit was, therefore, dismissed. 3. Since the suit was dismissed only on a technical ground of want of proof that the Wakf Board had been superseded at the relevant time and the powers were being exercised by the administrator, the learned counsel for the petitioner had filed along with C.M. No.22004-05 of 2009, a copy of the Gazette Notification issued on 18.10.1996 appointing an administrator for the Punjab Wakf Board. There cannot be any doubt about the correctness of the Gazette Notification for, the law requires under Section 81 of the Evidence Act, judicial notice to be taken for the correctness of the Gazette Notification. If the wakf had been administered through an administrator, the authorization given by the administrator to the Estate Officer to file a suit was itself sufficient for establishing the locus standi of the plaintiff through the representative as Estate Officer to institute the suit. 4. In so far as the findings had been rendered against the defence holding that the suit had been validly instituted before the Wakf Tribunal and that the suit as framed was maintainable, a civil revision had been filed against the findings by the defendants in C.R. No.305 of 2004. It was contended by the learned counsel that they were tenants in respect of the property and they were entitled to be protected against eviction by virtue of the provisions of The Punjab Security of Land Tenures Act, 1953 and the Punjab Tenancy Act of 1887. The counsel had relied on the decision of this Hon'ble Court in C.R. No.5085 of 2003 -4- Bakhshish Singh and another Vs. Rajinder Singh and others 2002 (3) PLR 543 that held that the jurisdiction of a Civil Court was barred for entertaining a suit for ejectment, found the question of whether there arose a forfeiture of tenancy on violation of a condition of lease by stating that it could be determined only by a revenue and not a Civil Court. The decision was rendered in the context of Section 77 (3)(e) and (i). Learned counsel also relied on yet another judgment of this Court in Dharambir Vs. Risal and others 1996 PLJ 638 which held that after the enforcement of the Punjab Security of Land Tenures Act, the provisions of the Transfer of Property Act become inapplicable, so far as land tenure leases are concerned. The Hon'ble Court was dealing with the case of a tenant inducted into possession by a usufructuary mortgagee and on the effect of redemption of a mortgage, it held that it would not extinguish the lease. Consequently, a lessee in possession of property created by the mortgagee in the course of his management was entitled to statutory protection against eviction under the Punjab Security of Land Tenures Act. In my view, the reliance on these two decisions are irrelevant and they have no bearing to the case at all. Neither the Punjab Security of Land Tenures Act nor the Punjab Tenancy Act of 1887 contained any provision excluding the jurisdiction of a Tribunal constituted under the Wakf Act for exercising its jurisdiction for grant of relief to the Wakf Board suing for recovery of possession of the property. Section 83 of the Wakf Act is wide in its import and it contemplates all types of disputes that could be adjudicated only before the Wakf Tribunal. Section 83(2) reads as thus: C.R. No.5085 of 2003 -5- “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. 5. The Wakf Act is a central enactment and it is also a special enactment so far as administration of property in relation to wakfs. To that extent, the provisions of Wakf Act will eclipse a general enactment relating to agriculture lease within Punjab. It is a fundamental precept of law that a special enactment overrides a general Act, vide Jasbir Singh Vs. Vipin Kumar Jaggi (2001) 8 SCC 289. The provisions contained under the Punjab Tenancy Act and the Punjab Security of Land Tenures Act, in so far as it excludes the jurisdiction of Civil Court cannot be applied to Wakf Tribunal for, a Wakf Tribunal is not a Civil Court. Their exclusion, which the above two enactments contemplates and the two decisions referred to above and cited by the learned counsel appearing for the petitioner shall have no application in so far as a suit is filed by invoking the jurisdiction vested on the Wakf Tribunal under Section 83(2) of the Wakf Act. The Wakf Act itself excludes the jurisdiction of Civil Court under Section 85 of the Wakf Act and grants the exclusive jurisdiction only to the Civil Court. 6. If the suit was properly instituted, the relief of recovery of possession cannot be denied by the fact that the lease deed is not filed C.R. No.5085 of 2003 -6- before Court. It was conceded even at the time of trial that the lease in favour of Gurdev Singh was true. Even if there was an indefinite period, the death of the tenant would accelerate the period of tenancy to determine with the death of the tenant and thereafter, the right of defendants will be only in the capacity of the legal heirs of the deceased. If the property was held by the defendants as heirs to the original tenant, a suit for recovery of possession before the Tribunal was perfectly justified and the Wakf Board was entitled to obtain the relief of recovery of possession. The dismissal of the suit for non- maintainability cannot any longer be set up by the defendants in view of the proof tendered by the Court about the appointment of administrator and the sanction by the administrator for institution of the suit to the Estate Officer. 7. The civil revision filed by the Wakf Board in C.R. No.5085 of 2003 is allowed and the civil revision filed in C.R. No.305 of 2004 by the defendants is dismissed. In terms thereof, the Wakf Board is entitled to recovery of possession and mesne profits as claimed. No costs. (K. KANNAN) JUDGE September 23, 2009 Pankaj*