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2014 Supreme(J&K) 277
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hasnain Massodi, J.
Mohd. Farooq Salari & Anr. -Appellant
Versus
State of J&K & Ors. -Resopndent
OWP No. 1109-07 & CMA No. 1608-07
Decided On : 15-07-2014
O.P. Thakur, A.H. Naik, S.S. Ahmad, H.A. Siddiqui.
The central legal point established in the judgment is the strict adherence to the provisions of the Jammu & Kashmir Wakaf Act, 2001, in lease transactions involving Wakaf property.
Headnote:
Wakaf Property - Jammu & Kashmir Wakaf Act, 2001 - Section 7, 11, 43 - The court discussed the provisions of the Jammu & Kashmir Wakaf Act, 2001, including the establishment and constitution of Wakaf Council, functioning of the Council, and the prohibition of permanent alienation of Wakaf property. The court analyzed the lease transaction in question and its compliance with the Act, emphasizing the requirements for public auction and confirmation by the Council.
Fact of the Case:
The Administrator, Auqaf Islamia Jammu invited offers for the lease of a plot of Wakaf land. The petitioners, claiming to be Muslims, opposed the lease, alleging that it was detrimental to the interests of Auqaf Islamia, Jammu, and not in compliance with the Jammu & Kashmir Wakaf Act, 2001.
Finding of the Court:
The court found that the lease transaction was conducted in strict accordance with the Jammu & Kashmir Wakaf Act, 2001, and that all rules and regulations were adhered to. The court dismissed the writ petition, concluding that it lacked merit.
Issues: The issues revolved around the compliance of the lease transaction with the Jammu & Kashmir Wakaf Act, 2001, and the alleged detrimental impact on the interests of Auqaf Islamia, Jammu.
Ratio Decidendi: The court's decision was based on the strict adherence to the provisions of the Jammu & Kashmir Wakaf Act, 2001, in the lease transaction and the lack of merit in the petitioners' allegations.
Final Decision: The writ petition was dismissed, and any interim direction was vacated.
- The judgment emphasizes strict adherence to the Jammu & Kashmir Wakaf Act, 2001 in lease transactions involving Wakaf property. (!) (!)
- The Wakaf Act requires that lease of Wakaf property be by public auction and subject to the confirmation of the Wakaf Council. (!)
- The lease in question proceeded after wide publicity, minimum bid, Council approval, and a formal lease deed, and the Court found these steps complied with the Act. (!) (!) (!) (!)
- The State Wakaf Council’s approval and the fulfillment of conditions (including deposit of 75% of the bid within the specified time) were necessary steps that were followed. (!) (!)
- The petitioners’ challenge alleging mala fide, non-compliance with the Act, or that the transaction amounts to sale was rejected; the writ petition was dismissed for lack of merit. (!) (!)
What is the applicability of Jammu & Kashmir Wakaf Act, 2001 to lease transactions of Wakaf land in this case?
What are the requirements under the Wakaf Act for lease of Wakaf property, including public auction and Council confirmation?
What is the Court's conclusion regarding the legality of the lease transaction and the petitioners' challenge to it?
2. The notice fixed Rs. 1,86,00000/- as minimum bid. Sh. Jamil Chowdry-respondent no. 3 herein, responded to the notice and deposited an amount of Rs. 18,60,000/- as CDR as required by the notice.
3. Petitioners claim to be Muslims by faith, were interested in protection and preservation of Wakaf property from any loss or mis-use. They are aggrieved that allotment on lease of the aforesaid plot is detrimental to the interests of Auqaf Islamia, Jammu. The land, according to petitioners, can be put to better use so as to generate more income for Auqaf.
4. Petitioners' case is that the Auqaf Islamia Jammu earlier in 1984 decided to raise a multi-storey shopping complex on the land in question and to generate funds for raising complex, decided to accept Rs. 5000/- per head contribution from the Muslims living in the Jammu City and outside and thereafter allot shops so constructed in their favour Respondent no. 2 claims to have deposited an amount of Rs. 5000/- with Auqaf Islamia, Jammu on 25.02.1984. It is averred that respondent no. 1 & 2 instead of raising shopping complex, as earlier resolved, decided to lease out the property and floated notice dated 04.08.2007 in this connection.
5. Petitioners insist that respondent no. 3 is without any business or other sources of income as would make his offer of Rs. 1,86, 00000/- bona-fide and genuine. They suspect that respondent no. 3 is acting on behalf of respondent no. 4, who not beneficiary under Jammu & Kashmir Wakaf Act, 2001, is not in a position to himself make the bid for allotment of land in question. It is stated a shop in Gandhi Nagar area fetches minimum amount of Rs. 50 lacs as premium and that any construction raised on the land in question is going to make respondent no. 4 earn millions at the cost of interests of Auqaf Islamia Jammu.
6. It is alleged that respondent no. 3 in execution of conspiracy hatched with respondent no. 4 to grab the prime land, has mis-represented the facts to respondent no. 1 & 2 and got the offer accepted and allotment made in his favour.
7. It is next pleaded that as proposed lease is to be for 40 years with permission to the allottee to raise permanent structure on the leased out land, the transaction in effect amounts to sale of the Wakaf property. Petitioners insist that Wakaf property interms of Jammu & Kashmir Wakaf Act, 2001 cannot be leased out for a period exceeding three years in case of agricultural land and one year in case of non-agricultural land. It is averred that the transaction, therefore, is not permissible under law and liable to be set aside.
8. To substantiate their grievance that the land in dispute is being in effect sold at a throw away price, petitioners refer to the Wakaf Land in Gandhi Nagar in Jammu with shopping complexes constructed on it, that according to petitioners, generated far more income than the proposed transaction.
9. Petitioners on the strength of averments made in the petition, seek following relief:-
(i) Writ of certiorari by quashing allotment of vacant land measuring 3 kanal 11 marlas situated near Auqaf Complex Gandhi Nagar Jammu in favour of respondents 3 and 4.
(ii) Writ of mandamus commanding respondents 1 & 2 to utilize the aforesaid piece of land in a profitable and useful manner as prescribed in Jammu & Kashmir Wakaf Act, 2001, by raising the Shopping Complex and allotting the shops by auction after due publication.
(iii) Writ of prohibition restraining respondent no. 1 & 2 from handing over the possession to respondent 3 & 4 and also restraining them from raising any sort of construction on the aforesaid land.
10. The writ petition is opposed by responde
