The Rajasthan High Court has held that the Chief Executive Officer has no power under the Wakf Act, 1995 to issue any declaration of a property to be a Wakf property.
The Division Bench of Chief Justice Pankaj Mithal and Justice Sandeep Mehta allowed a PIL seeking removal of illegal possession and encroachment on Oran land of Patwar Area Asada, Tehsil Jasol, District Barmer by the respondent No. 4 (Rajasthan Board of Muslim Wakfs) and to question the legality and validity of the letter/ communication dated 08.01.2019 issued by the Chief Executive Officer of the Wakf Board to the District Collector, Barmer to register/enter the said khasra as Wakf property by exercising powers under Section 37 of the Wakf Act, 1995.
It is observed by the Bench that a prayer was made by certain villagers of Village Asada to the Wakf Board to declare the Khasra comprising of 38 bighas as Wakf property in 2013. Along with the application, a copy of Jamabandi was presented, wherein total land of 33 bighas is shown in the Khasra and is entered as Gair Mumkin Oran. Certain photographs were also filed along with this application.
The Chief Executive Officer forwarded notices to the Tehsildar concerned for publication in the village. The matter pertaining to the land in question was reported to be lis pendense before the Rajasthan Wakf Tribunal wherein, a status quo order was passed and thus, the decision was deferred.
A noting dated 22.03.2017 was recorded on the file that no objections had been received despite publication of notices with intent to declare the property in question as Wakf property.
Matter relating to the land in question was pending before the Tribunal and thus, legal opinion was sought. On 24.03.2017, it was noted that 33 bighas of land of the Khasra in question was reported to be Kabristan and accordingly, an order was passed on 28.03.2017 by the Chief Executive Officer entering the land as Kabristan in the register maintained under Section 37 of the Wakf Act, 1995 and the decision was conveyed to the Tehsildar, Pachpadra for consequential changes in the revenue record.
On a perusal of the original record received from the Wakf Board, the Court noted that the direction to enter the land as Wakf property in the register maintained under Section 37 of the Wakf Act, 1995 was given without finding out the fate of litigation which was reportedly pending before the Wakf Tribunal.
“Under Section 32 of the Act of 1995, only the Wakf Board has been given the power to declare any property to be a Wakf property and to administer the same. Apparently thus, the Chief Executive Officer has no power under the Wakf Act, 1995 to issue any declaration of a property to be a Wakf property.”
On a perusal of the original record, the Bench further noted that no meeting whatsoever was ever held of the Wakf Board for the purpose of declaration of the land in question to be Wakf property.
Furthermore, the so-called enquiry made by the Chief Executive Officer and the minutes recorded therein do not give any indication that the Chief Executive Officer had any plausible evidence regarding the entire chunk being used as a Kabristan.
Apparently thus, the direction given by the Chief Executive Officer to the Tehsildar concerned conveying its decision to enter the land as Wakf land is totally illegal and without jurisdiction , the Court held.
Law is well settled by a catena of judgments of the Supreme Court and the High Court that nature of land entered as forest in the revenue records cannot be altered. The High Court referred to regular directions given by the Supreme Court in the case of In Re T.N. Gondavarman Thirumulpad vs Union of India (WP (Civil) No.202 of 1995).
Consequently, the Court is of the firm opinion that apart from the fact that there is no valid decision of the Wakf Board justifying the attempted declaration of land in question to be a Wakf property, in addition thereto, no such direction is permissible in view of the directions given by Supreme Court in the case of T.N. Gondavarman Thirumulpad (supra).
The communication dated 08.01.2019 forwarded by the Chief Executive Officer, Wakf Board to the Tehsildar Pachpadra is illegal and without jurisdiction and hence the same is quashed. Consequently, the respondents are restrained from making any effort to enter the land as Wakf property.
At the same time, the Court observed that land and measuring 2.1 bighas referred to in the factual report annexed with the additional affidavit of the District Collector, Barmer shall be continued to be used as a burial place.
“These directions would not preclude the right of the Muslim population of the village Asada to make a request for a dedicated burial ground”, clarified by the High Court.