IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 19029 of 2009 DATE OF DECISION : 23.09.2011 Punjab Wakf Board .... PETITIONER Versus Gram Panchayat, Bhalaipur Purban, Tehsil Baba Bakala, District Amritsar and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. Baldev Raj Mahajan, Advocate, for the petitioner. None for the respondents. * * * SATISH KUMAR MITTAL , J. Punjab Wakf Board has filed the instant petition under Articles 226/227 of the Constitution of India for quashing the order dated 30.5.2006 (Annexure P-13), passed by the Collector, whereby the suit/petition under Section 11 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as `the Act'), filed by the Gram Panchayat has been accepted and the Gram Panchayat has been declared as owner of the land in dispute; as well as the order dated 5.3.2008 (Annexure P-16), passed by the Director, Rural Development and Panchayats, Punjab, Chandigarh (exercising the powers of Commissioner), affirming the aforesaid order of CWP No. 19029 of 2009 -2- the Collector. We have heard learned counsel for the petitioner and have gone through the impugned order. In the present case, the dispute is regarding 32 kanals 11 marlas of land, situated in village Bhalaipur Purban, Tehsil Purban, Tehsil Baba Bakala, Distrit Amritsar. The Gram Panchayat of the village claimed that the disputed land being shamilat deh is owned by it. Prior to the issuance of notification dated 9.1.1971 issued by the Central Government under Section 5 (2) of the Wakf Act, 1954 (now repealed, a new Wakf Act, 1995 has been enacted), the land was recorded under the ownership of the Gram Panchayat in the revenue record and was being used for benefit of the whole village. On the other hand, case of the petitioner Board is that in view of the notification issued by the Central Government, this land was notified as wakf property and thus vests in the petitioner Board. In the appeal filed by the petitioner Board before the Commissioner against the order passed by the Collector, an argument was raised on behalf of the petitioner Board that the Collector was having no jurisdiction to entertain the title suit filed by the Gram Panchayat, because being the wakf property the issue whether the property in question is a wakf property or vests in the Wakf Board can be gone into and determined only by the Wakf Tribunal, established under Section 6 of the Wakf Act of 1995. The Commissioner, while taking into consideration the fact that the land in dispute was recorded under the ownership of the Gram Panchayat in the CWP No. 19029 of 2009 -3- revenue record and was being used for the welfare of the village, as well as the fact that the disputed land has never been used by the Muslims nor there is any Muslim abadi in the village, held that before issuing the notification, the Gram Panchayat should have been associated and served with a notice under the Wakf Act, which has not been done. The question for consideration in this case is : Whether in the present case, the land in dispute falls under the definition of shamilat deh, as defined in the Act and does vest in the Gram Panchayat or not, and whether the Collector under the Act has the jurisdiction to decide this question. Learned counsel for the petitioner Board argued that the question in the instant case is that in view of the notification issued under Section 5 (2) of the Wakf Act declaring the disputed land as wakf property, whether only the Wakf Tribunal as established under Section 6 of the Wakf Act has the jurisdiction to decide as to whether the land in dispute is a wakf property or not. Vide separate order of today, passed in CWP No. 19962 of 2009, having the similar set of facts where the disputed property was recorded as Maqbooza Ahley Islam/Kabirstan in the column of cultivation and in the column of ownership, it was recorded in the name of the Gram Panchayat and subsequently, with regard to such property a notification under Section 5 (2) of the Wakf Act was issued by the Central Government, this Court has already held that such dispute could neither be raised before the civil court nor before the Wakf Tribunal, but it could only be raised CWP No. 19029 of 2009 -4- before the Collector under Section 11 of the Act. In this regard, it has been observed as under :- “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 Kabristhan/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 Kabristhan/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 in the revenue record, the land in dispute was described as shamilat deh and it was being used for Kabristhan, which was a common purpose of the village, by virtue of Section 3 of the Act of 1953, such land vests in the Gram Panchayat. Both the authorities found as a fact that after partition of the country, the land in dispute was never used as Kabristhan 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 and in the jamabandi for the year 1965-66, name of the Gram Panchayat is recorded as owner of the land in CWP No. 19029 of 2009 -5- 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. Merely by issuing a notification under Section 5 (2) of the Wakf Act declaring the disputed land as wakf property, in our opinion, 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 issued 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 Kabristhan. The Hon'ble Supreme Court in Punjab Wakf Board Versus Gram Panchayat @ 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, in our opinion, in the present case, the notification was neither conclusive of ownership nor binding on the Gram Panchayat. CWP No. 19029 of 2009 -6- Now, after filing the title suit before the Collector, getting it adjudicated and loosing the case, now the petitioner Board is taking U turn by raising the contention that the authorities under the Village Common Lands Act have no jurisdiction to adjudicate whether the land in dispute is a wakf property and the said jurisdiction exclusively vests in the Wakf Tribunal, established under the Wakf Act. In our opinion, to determine the controversy as to whether the land in dispute vests in the Gram Panchayat or in the petitioner Board, only the authorities under the Village Common Lands Act have the jurisdiction and not the Wakf Tribunal, established under the Wakf Act. In Punjab Wakf Board Versus Gram Panchayat @ Gram Sabha (supra), the Hon'ble Supreme Court, while considering this issue, has held that when the issue is whether a particular land falls under the definition of shamilat deh and is being used for the common purpose of the village community, such dispute can be adjudicated only by the authorities under the Village Common Lands Act, and merely because a notification was issued by the Central Government, such dispute could not have been raised before the civil court. In the said case, where in the revenue record, the disputed land was recorded as shamilat deh and Gair Mumkin Kabristhan, it was held by the civil court that in view of Section 13 of the Village Common Lands Act, jurisdiction of the civil court is barred. This decision of the civil court was upheld upto the Hon'ble Supreme Court and it was held that in such dispute, only the Collector under the Village Common Lands Act has the jurisdiction to determine the question of title of such land. The said decision was followed by a Division Bench of this Court in Punjab Wakf Board Versus Joint Development Commissioner (supra). The issue in CWP No. 19029 of 2009 -7- this case was whether the land in dispute was shamilat deh before coming into force of the Village Common Lands Act and whether the same has vested in the Gram Panchayat or not. The issue is not whether the land in dispute is wakf property or not. As earlier stated, it is admitted position that before coming into force of the Act of 1953, in the revenue record, the land in dispute was recorded as shamilat deh and it was being used for Kabristhan, a common purpose of the village, as the proprietors of the village used this land as graveyard. Keeping in view the nature of the land being shamilat deh used by the inhabitants of the village for common purpose, the land vested in the Gram Panchayat under Section 3 of the Act of 1953, which 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. Thus, keeping in view the fact that the land already stands mutated in favour of the Gram Panchayat, the only remedy available to the petitioner Board was to file a title suit under Section 11 of the Village Common Lands Act. It is well settled that the Collector has the exclusive jurisdiction to determine whether a particular land is shamilat deh or not and vests in the Gram Panchayat or not and jurisdiction of the civil court is barred. In Gram Panchayat of village Jamalpur v. Malwinder Singh & others, 1985 PLJ 463, a question came for consideration before the Hon'ble Supreme Court as to whether the shamilat deh owned by the Muslim proprietors will vest in the Gram Panchayat under the Act of 1953, or being a Muslim CWP No. 19029 of 2009 -8- property, it will vest in the Central Government under the provisions of the Administration of Evacuee Property Act. It was held that the effect of the Administration of the Evacuee Property Act was not to take away the character of shamilat deh but only to vest in the Custodian such interest as the evacuee possessed in the shamilat deh. The interest which the erstwhile evacuees possessed in the shamilat deh was neither enlarged nor abridged. The land continued to be shamilat deh and it could be the subject of competent State Legislation as shamilat deh. If the State has enacted the legislation, it has to be given precedence over the Central Act. The same reason and logic is applicable in the instant case. In our opinion, the Act of 1953 will prevail over the Wakf Act and nature of shamilat deh vesting in the Gram Panchayat could not be questioned before the Wakf Tribunal, merely on the basis of a notification issued under Section 5 (2) of the Wakf Act, raising the argument that such property is a wakf property. If the question arises whether such property is shamilat deh or not, the same has to be gone into and determined by the authorities under the Village Common Lands Act and not by the Wakf Tribunal, where the question as to whether a particular property is a wakf property or not can be gone into.” In view of the aforesaid decision, we are of the opinion that there is no force in the contention of learned counsel for the petitioner Board that the Collector under Section 11 of the Act has no jurisdiction to determine the issue and entertain the title suit filed by the Gram Panchayat. We are further of the opinion that the remedy before the Wakf Tribunal is only with regard to the dispute as to whether a particular property is a wakf property or not. CWP No. 19029 of 2009 -9- In the present case, the issue is whether the land in dispute was a shamilat deh or not and it vests in the Gram Panchayat or not, because it was being used for common purpose of the village. Such an issue can be gone into and determined only by the Collector under Section 11 of the Act and not by the Wakf Tribunal established under Section 6 of the Wakf Act. In the present case, the Collector as well as the Commissioner, without taking into consideration the nature of the land recorded in the revenue record, have held that the land is owned by the Gram Panchayat. This finding of court is not based upon appreciation of material on the record. In our view, such order is not sustainable, because the Collector under Section 11 of the Act has to decide the issue whether the land in dispute falls under the definition of shamilat deh and vests in the Gram Panchayat, only on the basis of the revenue record and while looking into the use of the shamilat deh by the proprietors and non proprietors. Neither in the order of the Collector nor in the order of the Commissioner, the issue in this light has been considered. Therefore, in our opinion, the matter requires to be remitted back to the Collector to give a clear cut finding on the issue, in the light of the evidence led by both the parties before it. In view of the above, the orders, passed by the Collector and the Commissioner are set aside and the matter is remanded back to the Collector to decide the issue as to whether the land in dispute falls under the definition of shamilat deh or not and whether it vests in the Gram Panchayat or not, after providing an opportunity of hearing to both the parties and CWP No. 19029 of 2009 -10- taking into consideration the evidence led by both the parties. Disposed of accordingly. ( SATISH KUMAR MITTAL ) JUDGE September 23, 2011 ( M. JEYAPAUL ) ndj JUDGE