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Synopsis

In a recent ruling, the Jammu & Kashmir and Ladakh High Court has reinforced the supremacy of the Wakfs Act, 1978, emphasising its overriding effect over all other laws currently in force, including the Agrarian Reforms Act of 1976.

This decision delivered by Justice Javed Iqbal Wani, clarified that the provisions of the Wakfs Act and its accompanying rules and orders hold precedence despite any inconsistencies with other legislation or instruments. This explicit reaffirmation solidifies the Act of 1978 as the prevailing authority in matters concerning Wakf properties.

In scrutinising the definition of Wakaf, as provided in Section 3 of the Act, the court noted that it encompasses the “permanent dedication by a person professing Islam of any movable or immovable property for purposes recognised by Muslim Law or usage as religious, pious, or charitable.”

Additionally, the court emphasised Section 52 of the Wakafs Act, which prohibits the transfer of Wakaf properties, thus overriding any conflicting laws, including the Agrarian Reforms Act of 1976, under which the petitioners claimed ownership.

The case centered around petitioners Baldev Singh and Rajinder Jeet Singh, who challenged the validity of SRO 95 dated March 19, 1981, designating specific land as Wakf property. This land, initially categorised as agrarian land was allocated to a displaced person, also a respondent in the instant case, as per Government Order passed in 1954. The petitioners argued that the land, which was subsequently sold to them in 2000, could not rightfully be declared as a Wakf property. Seeking relief under Article 226 of the Constitution, they urged the court to quash SRO 95 and related orders.

The petitioners additionally contended that the land in question had not been officially notified under the law, nor was this status reflected in the pertinent revenue records until July 2003.

The petitioners persistently argued that SRO-95 lacked legality and jurisdiction concerning the disputed land. They contended that no inquiry had been conducted under Section 4 of the Act of 1978, nor had a report been issued by a Special Officer regarding the land in question.

Additionally, they asserted that no decision had been made by the said Special Officer regarding the disputed land, and even the consultation by the Government had been called into question. It was also argued that the land in question was allotted to a displaced person under the provisions of Section 3-A of the Act of 1976, granting possessory rights, subsequently sold to the petitioners.

After thorough examination, the court elucidated on the enactment of the Wakfs Act of 1978 on May 9,1978, aimed at enhancing the administration and supervision of Wakafs in the erstwhile State of Jammu and Kashmir.

The court highlighted the procedural requirements outlined in the Act for declaring a property as Wakaf. It underscored that the government must receive a report of inquiry from the Special Officer appointed under Section 4 of the Act regarding the property in question. The final decision on whether a property qualifies as Wakf is vested in the report of the Special Officer, as stipulated under Section 5 of the Act. The Act further provides a remedy of appeal against the decision to the government within 60 days from the date of the order. Additionally, under Section 6 of the Act, the government is mandated to publish the list of Wakfs in the Government Gazette.

The court clarified, “Transfer of the occupancy rights under the Agrarian Reforms Act, 1976 by sale, mortgage, or gift are permissible, yet the said sale could not have been effected qua the land in question by the respondent herein in favour of the petitioners herein in view of the provisions of Section 52.”

Moreover, the court highlighted that documents furnished by the Wakf Board indicated that the petitioners had previously leased the land from the Wakf Board through auctions. It was further observed that Baldev Singh, the petitioner, and his father were aware that the disputed land was designated as a Wakaf.

The court noted that the petitioner, “indisputably had withheld, concealed and suppressed this information in the petition” and neglected to respond to it despite being given the opportunity to do so by the court.

The court taking into account the submissions of all parties and the documents put forth, held that the disputed land was legally declared as a Wakaf under SRO-95, in line with the Wakfs Act of 1978.

Consequently, the sale of the Wakf to the petitioners was deemed legally ineffective. The court noted that the petitioners' challenge to SRO-95 lacked substantive legal grounds, thus leading to the dismissal of the writ petition and annulment of the sale deed in favour of the petitioner.

Cause Title: Baldev Singh vs State of Jammu & Kashmir [OWP No. 21/2004]