PUNJAB WAKF BOARD Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PUNJAB Wakf Board, Ambala Cantt. (hereinafter called the Board), has filed the present writ petition under Articles 226/227 of the Constitution of India against the State of Punjab, The Custodian General of Evacuee Property, Punjab and Rakesh Kumar praying for the issuance of a writ in the nature of certiorari for the quashment of the impugned orders Annexures P. 2 to P. 4 and for declaration that sale of the disputed property in favour of respondent No. 3 was illegal, null and void and that the Board is the authority to manage the disputed property, the same being wakf property and as such it vests in the Board petitioner.

(2.) THE case set up by the Board is that there is land in the revenue estate of Dina Nagar bearing old khasra Nos. 31 (9-16), and 21 (-6-17), Post consolidation Nos. 35 (8-13) and 34 (5-11 ). Originally this land was owned by Mohammadons and they converted it as Kabristan and in the Jamabandi for the year 1910-11 it was recorded as grave yard Ahle Islam. According to the marked entries of the owners thus property continued to be described in the revenue record as Ghair Mumkin Kabristan of Ahle Islam, meaning thereby that Mohammadonion Community without any restriction by the owner thereof had been burrying their dead bodies and had become the grave yard due to its use for a long time by Mohammadons and same state was reflected in the Jamabandi for the year 1961-62. The consolidation took place and the entries in the Jamabandis showed in the column of ownership for the year 1961-62, Central Governments as its owner though entries in all other columns remained the same as before. The petitioner Board has been managing the property and leased out this property to one Ganda Mal of Dina Nagar, who was in cultivating possession of the property under the petitioner and this fact was verified by him and mutation has also been decreed in favour of the petitioner. At the spot some of the portion of the grave yard has been left for the present need along with the building of mosque as it existed and rest was in the possession of the lessee Ganda Mal. That in the year 1976, Tehsildar (Sales-cum-Managing Officer,) auctioned this property on 28. 12. 1976 in favour of Rakesh Kumar, treating it as Central Govt. acquired evacuee property. The petitioner filed a suit for declaration that the property was of the petitioner and also brought therein for the injunction restraining the respondent from taking the possession of the land from the lessee Ganda Mal, but on objection of the other side that the Civil Court had no jurisdiction, the suit of the petitioner Board was dismissed as withdrawn. The petitioner filed objection petition against the said auction before the Settlement Commissioner, which was decided vide order dated 16. 5. 77 who set aside the sale qua khasra No. 35 but dismissed the objection for khasra No. 34 vide orders Annexure P. 2. The objections were dismissed as according to the Settlement Commissioner the same lay before the Custodian General Punjab, as the property has been shown that of Central Government evacuee property. The petitioner Board filed a revision before the Custodian General Punjab and after review of the entries and report came to the conclusion that the land was acquired evacuee property. Hence the revision was also dismissed. The petitioner moved the Financial Commissioner, Punjab and Secretary Rehabilitation Punjab Government under Section 54 of the Administration of Evacuee Property Act, 1950, who also dismissed the revision vide orders dated 13. 5. 1980 Annexure P. 4 holding that the property was not wakf property and is an evacuee property and the petitioner was not in possession of the same. Rather Ganda Mal was the lessee of the Central Government. In the present writ petition, the challenge has been given to the orders Annexure P. 2, P. 3 and P. 4 on the ground that these orders are illegal because till the year 1961-62, the property was shown to be kabristan Ahle Islam and that no Central Govt. was shown as owner of the property. It was only in the year 1961-62 after consolidation, the Central Govt. was shown as owner and on that basis it was treated as an evacuee property of compensation pool. At no stage, the property was declared as evacuee property and it always remained as Ghair Mumkin Kabristan of Ahle Islam as mentioned in the revenue record. The property was managed and controlled by the petitioner and lessee Ganda Mal had specifically stated before the Custodian that he was lessee of this property under the Board and it was in his possession as such. The property having attained the nature of wakf by its long user and described as such, could not be of any different nature as principle has been settled that once the property becomes a public wakf nature the same would continue irrespective of its use for the same or not. In short the contention of the Board is that the property in dispute was a Kabristan of Ahle Islam and it was being managed by the Board either personally or through its lessee. With the above averments, the prayer has been made for the quashment of orders Annexure P. 2 to P. 4.

(3.) RESPONDENT No. 3 Rakesh Kumar filed a separate written statement and he has also denied the averments made in the writ petition. According to this respondent, the petitioner Board has alleged several, times in the writ petition by stating that the land in dispute was a grave yard dedicated to Ahle Islam or that it was a public grave yard but the revenue entries do not support this fact. In fact, the land in dispute has been shown all aloge owned and possession by private persons. In the year 1943-44, on the death of Mohd. Din Khasra No. 31 was mutated in favour of his sons Fazal Din and Lal Din vide No. 902. The land has been rightly shown in the ownership of Central Government being an evacuee property. Khasra No. 35 which was purchased by this respondent in the open auction from the Central Govt. for a sum of Rs. 16,600.00 has never been mutated in favour of the petitioner. In fact, the same has been mutated in favour of respondent No. 3. vide mutation No. 1421 sanctioned on 22. 10. 1977. It was further pleaded by this respondent that earlier the petitioner Board filed a civil suit and said suit was dismissed because the Board did not serve any notice under Section 80 C. P. C. In these circumstances, the present writ petition is barred under Order 23 Rule 1 C. P. C. It is wrong to allege that sale regarding khasra No. 35 in favour of respondent No. 3 was set aside. Rather the sale in favour of respondent No. 3 with regard to this khasra number was confirmed and sale certificate was also issued in favour of this respondent. Supporting orders Annexures P. 2 to P. 4, this respondent prayed for the dismissal of the writ petition.