IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 7055 of 1998 Date of Decision: December 23, 2011 Punjab Wakf Board, Ambala Cantt. …Petitioner Versus The Financial Commissioner, Haryana and others. …Respondents CORAM: HON’BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Sandeep Punchi, Advocate, for the petitioner. Mr. D.D. Gupta, Addl. A.G., Haryana, for respondent No.1. Mr. J.S. Thind, Advocate, for respondent No.2. Ms. Divya Godara, Advocate, for respondent No.3. Paramjeet Singh, J. Punjab Wakf Board has filed the instant petition under Articles 226/227 of the Constitution of India for quashing of order dated 26.02.1997 passed by the Collector, order dated 16.05.1997 (Annexure P/7) passed by the Commissioner and order dated 06.11.1997 (Annexure P/8) passed by the Financial Commissioner. Vide order dated 26.02.1997, the mutation sanctioned by the Assistant Collector IInd Grade, has been set aside by the Collector and order dated 26.02.1997 (Annexure P/6) of the Collector has been affirmed by the Commissioner and the Financial Commissioner, dismissing the revisions of the petitioner. The dispute in the present case is with regard to the land measuring 180 kanals 10 marlas situated in Village Jhopran, Tehsil and District Sirsa. As per the jamabandi for the year 1919-20, the CWP No.7055 of 1998 land was shown as “Shamilat Deh”. Similarly in the jamabandi for the year 1955-56, the land is shown as “Shamilat Deh” in the column of ownership. Thereafter, it came in the name of Gram Panchayat and this entry continued till 1973-74. The Gram Panchayat filed an eviction application against the petitioner. However, during the pendency of eviction proceedings, a mutation No. 318 was entered on the basis of letter issued by the Director, Land Records, Haryana, in pursuance of notification dated 19.09.1970 issued by the Central Government under Section 5(2) of the Wakf Act, 1954 (now repealed, a new Wakf Act, 1995 has been enacted). The mutation was sanctioned without hearing the Gram Panchayat. It is the case of the Gram Panchayat that the Assistant Collector 2nd Grade had no jurisdiction to sanction the mutation because under Section 37 of the Punjab Land Revenue Act, 1887, mutation can be sanctioned either with the consent on the basis of any document of title or on the basis of the order of the competent Court of law. Reference in this regard, can be made to Para Nos. 7 and 16 of the Punjab Land Record Manual. The Gram Panchayat pleaded that entries of ownership by way of mutation cannot be made on the basis of letter of Government. Even under the notification dated 19.09.1970 such entry could not have been changed as the said notification is not applicable to the Gram Panchayat, it can only be taken into consideration if the notification would have been issued after hearing the Gram Panchayat. The Gram Panchayat challenged mutation No. 318 sanctioned by the Assistant Collector Second Grade by way of appeal before the Collector along with an application for condonation of 2 CWP No.7055 of 1998 delay. The Collector vide order dated 26.02.1997 (Annexure P/6), set aside the order dated 30.03.1978 passed by the Assistant Collector 2nd Grade and directed that correction be made in the name of the Gram Panchayat. Against the said order, the petitioner filed revision petition before the Commissioner. The same has been dismissed by the Commissioner vide order dated 16.05.1997 (Annexure P/7). Further, revision petition filed by the petitioner before the Financial Commissioner, too has been dismissed vide order dated 06.11.1997 (Annexure P/8). Hence, this writ petition. I have heard learned counsel for the parties and have taken into consideration the evidence brought on record. It is admitted fact that in the year 1919-20, the land was Shamilat deh and it continued for a sufficient long time. Thereafter, it vested in the Gram Panchayat as per provisions of Shamilat Law and the Punjab Village Common Lands (Regulation) Act and continued upto 1973-74. In the jamabandi, the ownership column, name of Gram Panchayat is recorded and in the cultivation column, “Maqbooja Ahley Islam Kabristan” is recorded. In the jamabandi for the year 1978-79, in the ownership column, name of Wakf Board is recorded and in the cultivation column, name of one Lal Chand son of Chanda Singh is recorded. This had continued upto 1993-94. Out of total land measuring 180 kanals 10 marlas, 176 kanals 5 marlas has been shown as Chahi, 4 kanals has been shown as Kabristan. Learned counsel for the petitioner contended that the entries are in existence in the name of Wakf Board since 1978-79 and the mutation was rightly sanctioned by the Assistant Collector 2nd Grade in pursuance to notification dated 19.09.1970 as per the provisions of Wakf Act. Learned counsel for the petitioner has 3 CWP No.7055 of 1998 further stated that the Collector, the Commissioner as well as the Financial Commissioner have committed jurisdictional error by changing the entries in the name of Gram Panchayat. It is further submitted by the learned counsel for the petitioner that property is gair mumkin a part of which is kabristan and mere change of use will not affect the right of the petitioner. Learned counsel for the Gram Panchayat submitted that position prior to 1973-74 is clear that the land was Shamilat deh and in view of the Punjab Village Common Lands (Regulation) Act, 1953 (hereinafter referred to as the Act of 1953), such land vests in the Gram Panchayat having jurisdiction over the village. The legal and factual position is not disputed by the learned counsel for the parties. Learned counsel for the petitioner has further argued that the ownership entries are continuous since in the jamabandies for the year 1978-80 till 1993-94. Such entries cannot be reversed by way of correction of the mutation. The remedy available to the respondents is to file suit under Section 45 of the Punjab Land Revenue Act, 1887. As such, the jurisdiction of the Collector to reconsider the mutation once it is incorporated in the jamabandi is barred. I have considered the contention of the learned counsel for the petitioner. Contention of the learned counsel is not sustainable. Mutation does not confer any title. If any wrong entry has been made in the jamabandi and subsequently, the competent authority passed the order rectifying the mutation, such entry can be corrected in the subsequent jamabandies as per corrected mutation. Even otherwise mere entry in the jamabandi does not 4 CWP No.7055 of 1998 confer any right, such entries are rebutable. In view of this, contention of the learned counsel for the petitioner is not sustainable, hence rejected. It is also admitted fact that the land in question has never been used as Kabristan, rather, it is always being used for cultivation purposes. The Collector vide order dated 26.02.1997 (Annexure P/6) has recorded a finding that the mutation sanctioned by the Assistant Collector IInd Grade vide order dated 30.03.1978 is wrong and he directed that in the revenue record the correction be made in the name of Gram Panchayat. The said finding has been affirmed by the Commissioner and the Financial Commissioner. It is undisputed position that in the revenue record, the land in dispute has been recorded under the ownership of the Gram Panchayat. However, in the column of possession, it has been recorded as Gair Mumkin Kabristan/Maqbooza Ahley Islam. It is also admitted position that at the time of coming into force of the Act of 1953, the land in dispute was recorded as shamilat deh, nature of which was recorded as Gair Mumkin Kabristan/Maqbooza Ahley Islam. Section 3 of the Act of 1953 provides that notwithstanding any thing to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, instrument, custom or usage or any decree or order of any court or other authority, all rights, title and interest whatever in the shamilat deh of any village shall, on the appointed date, vest in the Gram Panchayat having jurisdiction over the village. Since then in the revenue record, the land in dispute was described as shamilat deh and it was being used for Kabristan, which was a common purpose of the village, by virtue of Section 3 of the Act of 1953, such land 5 CWP No.7055 of 1998 vests in the Gram Panchayat. It is a fact that after partition of the country, the land in dispute was never used as Kabristan and it was being used for cultivation. At the time of partition of the country, all the Muslims of the village had migrated to Pakistan. It is further admitted position that much before the notification dated 19.9.1970, issued by the Central Government declaring the disputed property as wakf property, the land in dispute already stood mutated in favour of the Gram Panchayat. In the jamabandi for the year 1973- 74, name of the Gram Panchayat is recorded as owner of the land in dispute. It is not the case of the petitioner Board that before issuing the notification, any notice was issued to the Gram Panchayat and it was heard. Mere issuance of a notification under Section 5 (2) of the Wakf Act declaring the disputed land as wakf property, I am of the view, would not divest the Gram Panchayat of its ownership, which stood already vested in it by virtue of the Act of 1953. It is settled proposition of law that the notification with regard to a wakf property is not conclusive qua third party and the same is not binding on it. In this regard, reference can be made to a Division Bench decision of this Court in Punjab Wakf Board Versus Joint Development Commissioner, 2008 (4) RCR (Civil) 693, wherein it has been held that when before issuing the notification under Section 5 (2) of the Wakf Act declaring certain land as wakf property, no notice is issued to the Panchayat, then such notification is not conclusive of ownership of the Wakf Board. The Wakf Board has to show that the land was dedicated by a Muslim i.e. a person professing Islam for charitable purposes and it has to be proved that the land was used as a Kabristan. The Hon'ble Supreme Court in the matter of Punjab Wakf Board Versus Gram Panchayat @ 6 CWP No.7055 of 1998 Gram Sabha, 2000 (2) SCC 121, while considering the Explanation added to sub-section (1) of Section 6 of the Wakf Act, by the Central Act, 69 of 1984, has held that if any stranger claiming interest in the property does not file a civil suit within one year, the notification would be binding on him, provided he was given notice in the inquiry under Section 4 preceding the notification under Section 5 (2) of the Wakf Act. Thus, I am of the opinion, in the present case, the notification was neither conclusive of ownership nor binding on the Gram Panchayat. In view of the above, I do not find any merit in the contention of the learned counsel for the petitioner. The property was Shamilat deh since 1919 and continued till 1970. Thereafter, in pursuance of notification, the ownership has been changed in the name of Wakf Board which is without jurisdiction. As per the provisions of the Punjab Village Common Lands (Regulation) Act, jurisdiction of the civil Court, as well as, any other court is barred. In view of the above, I do not find any ground to interfere in the impugned orders. The writ petition fails and is dismissed. There shall be no order as to costs. December 23, 2011 (Paramjeet Singh) vkd Judge 7