IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1789 of 2002. Reserved on: 15.06.2007. Decided on: 23.07.2007. Shri B.M. Sharma and Others. … … Petitioners. Versus Chief Settlement Commissioner and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners: Mr. D. Dadwal, Advocates. For Respondents No.1 to 3: Mr. M.S. Chandel, Advocate General with Ms. Meenakshi Sharma, Deputy Advocate General. For Respondent No.4: Mr. Ravinder Thakur, Advocate. For Respondents No.5 & 6: Mr. R.K. Bawa, Senior Advocate with Mr. Inderjit Singh, Advocate. For the Respondent No.7: Mr. Shrawan Dogra, Advocate. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that the predecessor-in-interest of the petitioners, Shri Roop Lal Sharma had purchased the eastern half share a of four storeyed building situated in Lower Bazar, Shimla, H.P. described and recorded in the municipal record as shop No.130, 130/1 and 131. Late Shri Whether reporters of local papers may be allowed to see the judgment? yes. - 2 - Roop Lal Sharma had purchased this property at a public auction held on 7.4.1954. The sale certificate as per the provisions of Evacuee Interest (Separation) Act, 1951 was issued by the Estate Officer, Jalandhar. The property was sold for a sum of Rs.19,600/-. A sum of Rs. 4,900/- was deposited at the fall of the hammer being 1/4th of the sale proceeds and the remaining amount of Rs.14,700/- was deposited on 17.4.1954. Shri Roop Lal Sharma had been depositing the requisite taxes etc. with the Municipal Committee, Shimla. A notice was issued to the petitioners by the Naib Tehsildar (Sales)-cum- Managing Officer, Shimla on 16.9.2000. The reply was filed to the show cause notice dated 16.9.2000. The case was placed before the Settlement Commissioner (Re-habilitation), Shimla. The respondent No.6 had declared the property which was purchased by the Predecessor-in-interest of the petitioners as Sunni Wakf property vide notification dated 9.3.2002. The respondent No.3 had effected mutation in the revenue records treating the Wakf Board (respondent No.6) as the owner of the property. The Board had also preferred an appeal before the Chief Settlement Commissioner (Re-habilitation), Shimla, whereby their application under Order 1 Rule 10 of the Code of Civil Procedure for impleading as party-respondent was rejected in case No. Revenue(C)E(2)-14/2000. The respondents No.1 to 4 had filed separate replies as also respondents No. 5 and 6. Mr. Dushyant Dadwal had strenuously argued that the petitioners are the absolute owners of the property after the same was purchased by their Predecessor-in-interest at a public auction held on 7.4.1954 and they are in peaceful possession of the same. He further contended that the notice issued by respondent No.3 on 16th September, 2000 is without jurisdiction. He also contended that the notification dated 9.3.2002 is illegal, ultra-vires and void. The learned - 3 - Advocate General had supported the orders passed by the competent authorities. Mr. R.K. Bawa, Senior Advocate with Mr. Inderjit Singh, Advocate had strenuously argued that the property in dispute is a Wakf property and the same has been rightly notified on 9th March, 2002 as Wakf property and the revenue entries to this effect have been made in the record of rights. I have heard the parties and also gone through the entire record carefully. The position which emerges from the aforesaid facts is that the petitioners’ Predecessor-in-interest had purchased the land at a public auction on 7th April, 1954. The sale certificate as per the provisions of Evacuee Interest (Separation) Act, 1951 was issued in favour of Shri Roop Lal Sharma. He had been paying all the taxes/fees to the Municipal Committee and after his death, the same are being paid by the petitioners. The notice has been issued by the respondent No.3 on 16.9.2000 and the Settlement Commissioner (Re-habilitation) had come to the conclusion in his order dated 28th September, 2002 that the ownership of the petitioners was established and the notification issued was without giving opportunity of being heard, seems to be illegal. The notification has been issued, which appeared in the gazette of India dated March 9, 2002 whereby the properties owned by the petitioners have been declared as Sunni Wakf property. Before the rival submissions of the parties are discussed, it will be apt to take note of the provisions of the Administration of Evacuee Property Act, 1950, The Evacuee Interest (Separation) Act, 1951, The Wakf Act, 1954 and the Wakf Act, 1995. “Evacuee property” has been defined under Section 2(f) of the Administration of Evacuee Property Act, 1950, to mean any property of an evacuee (whether held by him as owner or as a trustee or as a - 4 - beneficiary or as a tenant or in any other capacity) and includes any property which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode or transfer which is not effective by reasons of the provisions contained in Section 40. Section 7 of the Administration of the Evacuee Property Act, 1950 provides that where the custodian is of the opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. Section 8 provides that any property declared to be evacuee property under Section 7 shall be deemed to have vested in the Custodian for the State. Sub-section (d) of Section 2 of the Evacuee Interest (Separation) Act, 1951 defines the ’composite property’ to mean any property which or any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950. Chapter II of the Act deals with Separation of Evacuee Interest in composite property. Sub-Section (h) of Section 3 of the Wakf Act, 1954 defines ‘person interested in a wakf’ means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes, – (i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah etc. (ii) the wakif and any descendant of the wakif and mutawalli. - 5 - Section 3(l) defines ‘wakf’ to mean the permanent dedication by a person professing Islam [or any other person] of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes – (i) a wakf user (but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;) Chapter II of the Wakf Act, 1954 deals with Survey of Wakfs. Section 4 stipulates preliminary survey of wakfs and Section 5 deals with publication of list of wakfs. Section provides that if any question arises, whether a particular property specified as a wakf property in a list wakfs published under sub-section (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. Section 6-A deals with power of Tribunal to determine disputes regarding wakfs. Section 27 provides that the Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni Wakf or a Shia wakf, it may, after making such inquiry as it may deem fit, decide the question. The Wakf Act, 1954 was repelled by Wakf Act, 1995. Section 3(k) defines the expression, ‘person interested in a wakf’ to mean any person who is entitled to receive any pecuniary or other benefit from the wakf. Section 3(r) defines the ‘wakf’ to mean the permanent - 6 - dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes – (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser. Chapter II of the Wakf Act, 1995 deals with Survey of Wakfs. Section 4 provides the method of doing survey of wakfs and publication of lists of wakfs is to be done under Section 5. The disputes regarding wakfs are to be resolved as per Section 6. Section 7 empowers the Tribunal to determine the disputes regarding wakfs. Section 27 of the Act empowers the Board to delegate its powers. Section 40 deals with the decision if a property is wakf property. Section 40 reads as under:- “40. Decision if a property is wakf property. – (1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf of a Shia wakf it may, after making such inquiry as it may deem fit, decide the question. (2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal be final. (3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 or under the Societies Registration Act, 1860 or under any other Act, is wakf property, the Board may notwithstanding anything contained in such Act hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is wakf property, - 7 - call upon the trust or society, as the case may be, either to register such property under this Act as wakf property or show cause why such property should not be so registered: Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered. (4) The Board shall after duly considering such course as may be shown in pursuance of notice issued under sub-section (3) pass such order as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.” Section 83 provides for constitution of Tribunals etc. and the same is reproduced as under: “83. Constitution of Tribunals etc. – (1) The State Government shall by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. (2) 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. (3) Where any application made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the - 8 - mutawalli or any one of the mutawalli or the wakf factually and voluntarily resides, carries on business or personally works for gain, and where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter. Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction and , on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred , except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh. (4) Every 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, and the appointment of every such person may be made either by name or by designation. (5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order. (6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Tribunal shall follow such procedure as may be prescribed. - 9 - (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil Court. (8) The execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908. (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for the examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.” Primarily, four issues are required to be decided by this Court:- (1) Whether the show cause notice issued to the petitioners by respondent No.3 on 16th September, 2000 is without jurisdiction? (2) Whether the notification, i.e. Annexure P-N, dated March 9, 2002 is in conformity with the Wakf Act, 1995 or not? (3) Whether the petition is maintainable in this Court despite the remedy available to the petitioners under Section 83 of the Wakf Act, 1995? (4) Whether disputed questions of fact are involved in the petition necessitating the petitioners to be relegated to avail the remedy of civil suit? - 10 - The petitioners have been issued notice dated 16.9.2000 by the respondent No.3 on the basis of Khasra Paimaish whereby property comprised in Khasra No.411 measuring 1395 square feet has been shown to be owned by “Sarkar Dalut Mandar” and in possession of one Gainda Mall son of Sarnu Mal ½ share and Khan Sahib Fakeeru Deen ½ share, as per note dated 22.3.1951 in this revenue record, shop No.130, 131/1, 131/2 and 132, Lower Bazar and this property has been shown as Muslim property under the possession of a Custodian. The petitioners had filed a detailed reply to the show cause notice on 28.9.2000. The Settlement Commissioner (Re-habilitation) had passed the order on 11th December, 2000 directing the petitioners to show as to why the property should not be deemed to be Custodian property and put to sale. The Settlement Commissioner (Re- habilitation), as is evident from the order dated 28th September, 2002 was satisfied that the ownership of the petitioners was established and the notification issued without giving opportunity of being heard to them was illegal. The notice was issued to the Central Government by the Settlement Commissioner (Re-habilitation). The Evacuee property has been defined under the Administration of Evacuee Property Act, 1950 and as per Section 7 of the Act where the Custodian is of the opinion that any property is evacuee property within the meaning of the Act, he may after causing notice thereof to be given in such a manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring such property to be evacuee property, and thereafter the Custodian from time to time is required to notify, either by publication in the Official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under sub-section (1). The respondents No.1 to 4 have not placed on record any - 11 - notification suggesting that the property in question was evacuee property as per Section 7 of the Administration of Evacuee Property Act, 1950. The respondent No.3 had not applied his mind to the relevant material before issuing the notice. The Apex Court has held in Nasir Ahmed v. Assistant Custodian General, Evacuee Property, U.P., Lucknow and another, AIR 1981 SC 1157 that the authority concerned has to apply its mind to the relevant material before issuing the notice. Their Lordships have held as under:- “What is said in the preceding paragraph makes it plain that the authority concerned did not apply his mind to the relevant material before issuing the notice. The same thing is apparent from another fact. It has been stated that on November 29, 1952 the Deputy Custodian, Deoria, dropped the proceeding seeking to declare the appellant an intending evacuee and that on the same day he directed the initiation of proceedings under Section 7. Section 7 requires the Custodian to form an opinion that the property in question is evacuee property within the meaning of the Act before any action under that section is taken. Also, under Rule 6 the Custodian has to be satisfied from information in his possession or otherwise that the property is prima facie evacuee property before a notice is issued. On November 29, 1952 no evidence was found to support a declaration that the appellant was an intending evacuee. There is no material on record to suggest that on that very day the authority had before him any evidence to justify the initiation of a proceeding to declare the appellant an evacuee and his property as evacuee property. The notice under Section 7 thus appears to have been issued without any basis. The Assistant Custodian General who found no merit in the revisional application preferred by the appellant overlooked these aspects of the case. We are therefore unable to agree - 12 - with the High Court that the Assistant Custodian General’s order did not suffer from any error.” Since the notice itself was cryptic and on the basis of the reply furnished by the petitioners, the Settlement Commissioner (Re- habilitation) had come to the just conclusion that the petitioners were owners of the land in question as per order dated 28.9.2002. Thus the notice dated 16.9.2000 is held to be without jurisdiction. The second question which needs consideration now is whether the notification issued and published in the Government of India Gazette vide Annexure P-N is in accordance with law or not. The Wakf Act, 1995 has defined the ‘Wakf’ to mean the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable. It is the duty cast upon the State Government under Section 4 of the Act to appoint a Survey Commissioner of Wakfs to make a survey of wakfs existing in the State at the date of the commencement of the Act. Similar was the language employed in Section 4 of the Wakf Act, 1954. The State Government under Section 5 of the old and new Act had to publish the list in the official Gazette. If there is any dispute whether a particular property specified as wakf property in the list of wakfs 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 Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. The Hon’ble Supreme Court has explained the expression or “any person interested therein” in The Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others, AIR 1979 SC 289 as under:- - 13 - “The answer to these questions must turn on the true meaning and construction of the word ‘therein’ in the expression ‘any person interested therein’ appearing in sub-s. (1) of S.6. In order to understand the meaning of the word ‘therein’ in our view, it is necessary to refer to the preceding words ‘the Board or the mutawalli of the wakf’. The word ‘therein’ must necessarily refer to the ‘wakf’ which immediately precedes it. It cannot refer to the ‘wakf property’. Sub-sec. (1) of S. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the person who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and ‘any person interested therein’, thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the wakf, to institute suits. In dealing with the question, the High Court observes: “In our opinion, the words ‘any person interested therein” appearing in sub-sec. (1) of S. 6 mean no more than a person interested in a wakf as defined in clause (h) of S. 3 of the Act. ….. It is urged by learned counsel for the petitioners that the legislature has not used in S. 6 (1) the words “any person interested in a wakf” and, therefore, this meaning should not be given to the words “any person interested therein”. This argument is not tenable because the words “any person interested therein” appear soon after “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 - 14 - scope of the words “person interested in the wakf”. The purpose of Section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in the wakf.” That, in our opinion, is the right construction. We are fortified in that view by the decision of this Court in Sirajul Haq Khan v. The Sunni Central Board of Wakf, U.P. 1959 SCR 1287: (AIR 1959 SC 198). While construing S. 5(2) of the United Provinces Muslims Wakf Act, 1936, this Court interpreted the expression “any person interested in a wakf” as meaning ‘any person interested in what is held to be a wakf’, that is, in the dedication of a property for a pious, religious or charitable purpose. It will be noticed that sub-s. (1) of S. 6