Excelsior Correspondent
SRINAGAR, Sept 13: The High Court today dismissed the plea challenging the order issued by the J&K Wakf Board for taking over the management and allied properties of all the shrines in Jammu and Kashmir.
The Board had issued an order on 17.2.2022 whereby the control and management of all the shrines including the assets and properties of these shrines in the whole J&K UT was taken over by the Board and an order on 01.04.2023 whereby Ziyarat Sharief Syed Khazir Sahab at Rayil, Gund Kangan Ganderbal and its allied properties have been ordered to be taken over by the Board in terms of Waqf Act.
These orders came to be challenged in the instant petition. It is also provided in the order that any Association or local Auqaf in respect of such Wakfs shall be void-ab-initio.
Justice Javed Iqbal while upholding the orders of the Board said, the respondent Board can rightly be said to have resorted to the provisions of the Waqf Act and the issue raised by the petitioner-Shrine as analyzed is misconceived and not legally tenable.
“Furthermore since SRO 510 of 1985 as also the decision of the Special Officer having declared the Ziyarat in question and its allied properties as a Wakf property under the Act is not under challenge, as such, this Court is refraining from expressing any opinion thereto. The petition fails and accordingly is dismissed, as a corollary whereof, the contempt notices are recalled, proceedings dropped and petition disposed of”, the Court ruled.
The Court has recorded that a distinction has to be drawn here between a notification required to be published in the Government Gazette that creates or extinguishes a right or liability and the one requiring furnishing of an information to the public about an existing fact, while in the former case the publication of a notification in the Government Gazette may be mandatory, whereas in the later case it can safely said to be directory in nature.
However when dealing with the instant case publication of a notification in the Government Gazette had not by itself created or extinguished a right or liability but only would have to be stated and narrated an existing fact that a particular property has been declared as Wakf property by the Special Officer and failure to publish such a notification in the Government Gazette would not thus said to be denuding or changing the nature, status and character of the property declared as a Wakf property by the Special Officer under Section 5 of the Act of 1978.
“A bare perusal of the SRO 510 tends to show that the Special Officer has given his declaration/decision about the status of the Ziyarat and its allied properties in question being a Wakf property only and thus an inescapable inference of the fact that can be drawn there from is that the Ziyarat and its allied properties had been declared as a Wakf property in terms of the Act of 1978 and report in this regard had been accepted by the Government without there-being any person aggrieved thereof including the petitioner”, read the judgment.
The counsel appearing for the aggrieved party submitted before the court that the respondent Board declaring a particularly property as a Wakaf Property, a definite procedure as prescribed is required to be followed which includes conducting of a survey and holding an enquiry in tune with the principles of natural justice and that since such course has not been adopted by the respondent Board while issuing impugned order, same violates the rights enshrined under the Article 226 and 30 of the Constitution of India.
The counsel representing the Board opposed these submissions made by the other side and contended that the Board has declared the Shrine in question as a Wakaf in the year 1985 under the Act of 1978 and that a formal declaration in this regard thereof has been made by the Government of Jammu and Kashmir.
The respondent Board has placed on record SRO 510 dated 11.12.1985 issued by the Government of Jammu and Kashmir whereby amongst others Ziyarat Sharief Syed Khazir Sahab at Rayil, Gund Kangan has been declared as a Wakaf property in the year 1985 in terms of 3 Act of 1978 which was in vogue then and that no new or further proceedings in this regard were required to be undertaken under the Act of 1995, as action taken under the Act of 1978 is deemed to have been taken under the Act of 1995.
The court suggested that the scheme of the 1978 Act makes it clear that initially there has to be a survey by a Special Officer followed by a decision in the shape of a report by such Special Officer as to whether a particular property is or is not a Wakaf property followed by the decision of such Special Officer as to whether any property is or is not a Wakaf property being a final decision thereof though subject to an appeal by an aggrieved person to the Government.
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