IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1139 of 2008 Date of decision: 31.03.2010 Punjab Wakf Board through its Estate Officer, Branch Office, Ropar, Tehsil and District Ropar. ....Petitioner versus State of Punjab through its Chief Secretary, Civil Secretariat, Punjab Government, Chandigarh and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Jai Bhagwan, Advocate and Mr. Tushar Sharma, Advocate, for the petitioner. None for the Amicus Curiae. Mr. Manohar Lall, Additional Advocate General, Punjab. ---- 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 Civil Revision is at the instance of Punjab Wakf Board challenging the suit for declaration that the properties comprised in suit in the Village Dargah Shah Khalid Bin Walid, District Ropar, belonged to the Wakf Board and for recovery of possession from the District Forest Officer, Department of Forest, Punjab. The suit had been instituted under Section 6-B of the Wakf Act before the Additional District Court exercising jurisdiction as the Wakf Tribunal constituted under the Act. Civil Revision No.1139 of 2008 - 2 - 2. It is an admitted fact that there is no document of dedication of the entire properties in the Wakf. The claim by the Wakf Board is rested on a notification dated 13.07.2001 issued by the Government under Section 5(2) of the Wakf Act that the entire village comprising of 525 acres a Wakf and consequently, the Wakf Board was entitled to recover possession of the property from the Forest Department. The contention in defence by the Forest Department was that the entire village comprising of 525 acres had been vacated at the time of partition and the property had been held as evacuee property by the custodian under the Administration of Evacuee Property Act. The copy of the jamabandi for the year 1943-44 placed on record before the Wakf Tribunal as R-2/A which indicated that the property was in the nature of Gair Mumkin Tibba, Barani and Banjar Kadim etc. The property had been purchased after the partition from the custodian by the Forest Department and the Punjab Government, Department of Rehabilitation from the Government of India, Rehabilitation Department, after depositing Rs.2,36,542.80 with the Central Government. The jamabandi for the year 1980-81 had entered in the column of ownership the possession of the Forest Department. Even an earlier notification issued on 17.03.1970 had declared the property as protected forest, as evidenced through Ex. R-6 and the mutation had also been sanctioned on 21.12.1988. The vesting of the property with the custodian, transfer of the property by the Government of India to the Government of Punjab, the deposit of consideration, the notification as protected forest and the subsequent mutations in jamabandi for the year 1980-81 had all, Civil Revision No.1139 of 2008 - 3 - according to the learned counsel for the respondent, proved that the property did not belong to the Wakf and the claim by the Wakf Board was clearly unjustified. 3. It was also shown before the Wakf Tribunal that the declaration of the property as a protected forest and the mutation sanctioned in favour of the Forest Department had been the subject of dispute also before the revenue authorities at the instance of the Wakf Board, and the contentions of the Board had all been dismissed. The Wakf Tribunal considered the fact that the documents on record fully proved that most of the residents of the village were Muslims and after the partition of the country, they had shifted Pakistan and the revenue records showed that the property belonged only to the Forest Department. Referring to the contention on behalf of the Wakf Board that the property had been subsequently notified under the Wakf Act under Section 5(2), the Tribunal referred to a decision of the Hon'ble Supreme Court in Abdul Rais and others Versus Madhya Pradesh Wakf Board and others-2005(1) Judicial Reports 37, that held that the notification was not final and would not bind a third party to contest the claim of a Wakf Board. The case was being examined in the context of requirement of a civil suit within one year in the event of a dispute between the Wakf Board on the one hand and mutavalli on the other and the Hon'ble Supreme Court made a distinction between a person interested in the Wakf and a person, who was a third party not so interested. The challenge under Section 6(1) of the Act itself was confined apply only to persons, who were interested in the Wakf and not Civil Revision No.1139 of 2008 - 4 - to a third party. The limitation that shall apply to a person such as a wakif or a mutavalli, who has connection with wakf shall not apply to a third party to the Wakf, such as the Forest Department. The Wakf Tribunal Board also considered with reference to earlier decisions of this Court that a dedication to a Wakf cannot be a matter of assumption and that it has to be clearly established. The entire expanse of land over 525 acres comprising of the whole village was not shown to have been so dedicated for any wakf. A mere residence of persons who were predominantly muslims will not make possible such an inference. Only the property in Khasra No.30(5-18) showed it was Gair Mumkin kabristan and the whole of other property had been down as Gair Mumkin Tibba, Banjar Kadim. All these showed that they were agricultural lands or communal properties and they had not been dedicated for any charitable purpose. The Court, therefore, found that there was a complete lack of proof of dedication. 4. The learned counsel appearing on behalf of the revision petitioners assails the judgment of the Wakf Tribunal by referring to several decisions which have no relevance to the controversy involved in this case. The learned counsel refers to a decision of the Hon'ble Supreme Court in Punjab Wakf Board Versus Bachan Chand-1988 PLJ 436 that held that a Wakf property which was declared as evacuee property on account of migration of trustees must be treated as having vested in Wakf Board with effect from the date on which the property came by possession of the custodian and the Board could maintain an action for possession by virtue of the provisions contained under Section Civil Revision No.1139 of 2008 - 5 - 11 read with Section 15 of Administration of Evacuee Property Act. This decision could be applied in cases where the property had been shown to have been dedicated to a Wakf and held in the hands of a trustee of a Wakf, who had later migrated to Pakistan. The possession of the custodian shall in such circumstances be taken to be a trustee for the Wakf. In this case, it is an admitted fact that the dedication of the entire property for a Wakf has not been proved at all, except for a small extent relating to a single khasra number where the kabristan has been shown to have existed. The vesting in the hands of custodian as such cannot be availed to the benefit of the Wakf Board. Several decisions have been cited from the bar with reference to the presumptions relating to Wakf property and how a property declared as a Wakf shall continue to be Wakf at all times. The whole case depends on the initial proof of a dedication or some evidence of dedication. I have already pointed out that save for a small extent of property which had been set up a part of a kabristan, the whole of the remaining property had never been shown to have been dedicated to Wakf. As I have already pointed out, the residence of a large body of Muslims who had later migrated to Pakistan could not itself invest the character of village as a property dedicated for Muslims’ charitable purposes. The revenue entries for the years 1940-41 indicated to the contrary. The Wakf Tribunal has correctly considered the issue that there had been no proof of dedication and the possession in the hand of the custodian could not be taken to be for the benefit of the Wakf Board. The decision of the Wakf Tribunal is confirmed for all purposes, except as regards an extent of property which had been shown Civil Revision No.1139 of 2008 - 6 - as kabristan, to which alone the petitioner shall have any relief. Consequently, the property shown as kabristan namely of Khasra No.30 (5-18) shall alone be declared as Wakf property and the petitioner shall be entitled to recovery of possession to the said extent alone from the respondents. The award of the Tribunal is modified to this limited extent and in all other respects, the Civil Revision is dismissed. (K.KANNAN) JUDGE 31.03.2010 sanjeev