The legal framework for declaring a property as Wakaf under the Jammu and Kashmir Wakaf Act of 1978 and the subsequent implications of such declaration under the provisions of the Waqf Act, 1995.

JUDGMENT :

JAVED IQBAL WANI, J.

1. In the instant petition the petitioner has questioned Order No. 03 of 2023 dated 01.04.2023 (for short the impugned order) issued by the Jammu and Kashmir Wakaf Board (for short the Board) whereby the management of Ziyarat Sharief Syed Khazir Sahab at Rayil, Gund Kangan and its allied properties (“for short the Ziyarat”) have been ordered to be taken over by the Board in terms of Sections 67, 68 & 69 of the Waqf Act, 1995 (for short the Act of 1995) besides having thrown challenge to Order No. 17/JKWB of 2022 dated 17.12.2022 issued by the Board whereby it came to be provided that the Board has taken over all the control and management of the Shrines/Ziyarats including the assets/properties in the whole of Union Territory of Jammu and Kashmir and any Association or local Auqaf in respect of such Wakfs shall be void-ab-initio.

The petitioner has also questioned letter dated 08.04.2023 addressed by the Board to the petitioner informing him about taking over of the Ziyarat on 08.04.2023 and further calling upon him not to spend any income on the same and in the event of breach, action under Act would be initiated.

It is significant to note here that in view of the challenge thrown to the order impugned dated 01.04.2023, the validity or otherwise of the aforesaid consequential orders is not required to be adverted to.

2. The petitioner has challenged the order impugned dated 01.04.2023 fundamentally on the ground that the Ziyarat including the land underneath thereto is proprietary land of the petitioner and has never been donated to any Wakaf or Ziyarat and that its use has only been allowed for the charitable purposes.

3. It is being claimed by the petitioner that Ziyarat has not been declared as a “Wakaf Property” in terms of Sections 5 and 6 of the Jammu and Kashmir Wakaf Act of 1978 (for short the Act of 1978) and in absence of any such declaration, respondent Board could not take recourse to Sections 67 to 69 of the Act of 1995, as such, the action of the respondent Board is illegal, arbitrary and unconstitutional.

4. It is being further urged by the petitioner that 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.

5. Per contra, objections to the petition have been filed by the respondent Board wherein it is being averred that the subject matter of the petition had been declared 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 Act of 1978 supra 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.

Heard counsel for the parties and perused the record.

6. Before proceeding to deal with the issues raised in the instant petition, it would be appropriate to give a brief background of the Wakaf law in the Jammu and Kashmir being relevant and germane herein.

Initially in the erstwhile State of Jammu and Kashmir, Jammu and Kashmir Wakaf Act 1978 came to be enacted on 09.05.1978 (for short the Act of 1978) providing for the better administration and supervision of the Wakfs in the State. The said Act was repealed by Jammu and Kashmir Wakafs Act 2001 (for short the Act of 2001) enacted on 16.04.2001.

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