PRITHIPAL SINGH Vs. PUNJAB WAKF BOARD

JUDGEMENT

(1.) The defendant in case No. 431 on the file of the Court of Subordinate Judge, Ist Class, Palwal, is the appellant in this regular Second Appeal. The respondent Punjab Wakf Board field a suit for a perpetual injunction to restrain the defendant from taking possession of the land in dispute. The case of the plaintiff was that the suit property was Wakf property which had vested in Wakf Board and which the Wakf Board was entitled to recover from the defendants. The first defendant-appellant raised a preliminary objection that the suit was not maintainable at the instance of the Punjab Wakf Board, as the property was evacuee property, which had become vested in the Custodian of Evacuee Property. This objection of the appellant was over ruled by the lower appellate Court on the ground that the suit could be maintained under Section 15 of the Muslim Wakf Act, 1954. This finding of the lower appellate Court is challenged in this second appeal. Shri H.L. Sarin, learned counsel for the appellant argued that under Section 11 of the Administration of Evacuee Property Act, 1950, where any evacuee property, which is vested in the Custodian, is trust property for a public purposes of a religious and charitable nature, it shall be lawful for the Central Government, not withstanding any law for the time being in force, to appoint by general or special order new trustees in place of the evacuee trustees, and the property shall remain vested in the Custodian only until such time as the new trustees are appointed. Section 11 further provides that pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for the purposes of the trust. The expression 'evacuee property' which is defined in Section 2(f) includes the property of any evacuee held by him as a trustee. There is no dispute that the suit property is evacuee property and that it vested in the Custodian under the Evacuee Property Act. If so Section 11 of the Administration of Evacuee Property Act applies notwithstanding any other law for the time being in force. The property is, therefore, to remain vested in the Custodian of Evacuee Property until new trustees are appointed in accordance with the provisions of Section 11 of the Act. In the lower Court reliance was sought to be placed on a notification issued by the Punjab Government on February 27, 1961 empowering the Board of Wakfs established under Section 9 of the Muslim Wakfs Act 1954 to exercise the powers under Section 11(1) of the Administration of Evacuee Property Act, which had been made exercisable by the State Government by virtue of the notification of the Government of India dated the 18th March, 1960. This notification only empowers the Punjab Wakf Board to appoint trustees. Admittedly no trustees have so far been appointed and, therefore, the suit property must continue to vest in the Custodian of Evacuee Property. The lower appellate Court thought that Section 15 of the Punjab Wakfs Act, which enables the Wakf Board to exercise general powers of superintendence over the Wakfs in the State, and enables the Wakf Board to take measures for the recovery of lost property and to institute and defend suits and proceedings in a Court of law relating to Wakfs, enables the Wakf Board to maintain the present suit. It is difficult to uphold this view of the lower appellate Court. As already mentioned, Section 11(1) of the Administration of Evacuee Property Act prevails over any other law for the time being in force and in view of the provisions of Section 11(1) of Administration of Evacuee Property Act, it is not open to the Wakf Board to have recourse to the provisions of Muslim Wakfs Act. It is open to the Wakf Board to appoint new trustees by virtue of the notification dated February 27, 1961 and thereafter, it will be open to the new trustees to take action to recover the property. As it is the property vested in the Custodian and it is not open to the Wakf Board to maintain this action. The second appeal is, therefore, allowed and the suit is dismissed. There will be no order as to costs.