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1989 Supreme(P&H) 763
PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia, K.S.Tiwana and S.P.Goyal JJ.
Bachan Singh
Versus
Punjab Wakf Board Ambala
Second Appeal No. 535 of 1979,
Decided On : SEPTEMBER 19, 1989
The provisions of S.11 of the Administration of Evacuee Property Act, 1950 (Evacuee Act) and S.15 of the Wakf Act, 1954 (Wakf Act) were examined to determine which statute governed the management of Muslim Wakfs in Punjab. The court held that the Wakf Act exclusively governed public wakfs and the Board constituted under this Act was the sole authority entitled to manage them. The court found that the authority of the Custodian to manage the wakfs, if any, came to an end with the deletion of the Explanation to S.11 of the Evacuee Act. The court also held that even if S.11 was taken to be still applicable to wakfs after the deletion of the said Explanation, its provisions stood expressly repealed by the provisions of S.69 (2) of the Wakf Act and in the alternative by implication, the Wakf Act being a special and later statute.
Headnote:
The provisions of S.11 of the Administration of Evacuee Property Act, 1950 (Evacuee Act) and S.15 of the Wakf Act, 1954 (Wakf Act) were examined to determine which statute governed the management of Muslim Wakfs in Punjab. The court held that the Wakf Act exclusively governed public wakfs and the Board constituted under this Act was the sole authority entitled to manage them. The court found that the authority of the Custodian to manage the wakfs, if any, came to an end with the deletion of the Explanation to S.11 of the Evacuee Act. The court also held that even if S.11 was taken to be still applicable to wakfs after the deletion of the said Explanation, its provisions stood expressly repealed by the provisions of S.69 (2) of the Wakf Act and in the alternative by implication, the Wakf Act being a special and later statute.
Fact of the Case:
The plaintiff-respondent-Wakf Board filed a suit against the defendant-appellant for possession of agricultural land, alleging that the property in dispute was Waqf property and vested in the Custodian under S.11 of the Evacuee Act. The defendant-appellant contested the averments and claimed himself to be a tenant-at-will under the plaintiff-Board.
Finding of the Court:
The court held that the property in dispute was not an evacuee property within the meaning of the Evacuee Act and, therefore, never vested in the Custodian. The court further held that after the enactment of the Wakf Act, public wakfs were exclusively governed by its provisions and the Board constituted under this Act was the sole authority entitled to manage them. The court also held that the authority of the Custodian to manage the wakfs, if any, came to an end with the deletion of the Explanation to S.11 of the Evacuee Act. The court also held that even if S.11 was taken to be still applicable to wakfs after the deletion of the said Explanation, its provisions stood expressly repealed by the provisions of S.69 (2) of the Wakf Act and in the alternative by implication, the Wakf Act being a special and later statute.
Issues: 1. Whether the provisions of S.11 of the Administration of Evacuee Property Act, 1950 (Evacuee Act) and S.15 of the Wakf Act, 1954 (Wakf Act) were in conflict and which statute governed the management of Muslim Wakfs in Punjab. 2. Whether the Punjab Wakf Board constituted under the Wakf Act was the sole authority entitled to manage Muslim Wakfs in Punjab.
Ratio Decidendi: 1. The court held that the provisions of S.11 of the Evacuee Act and S.15 of the Wakf Act were in conflict and that the Wakf Act exclusively governed public wakfs. The court found that the authority of the Custodian to manage the wakfs, if any, came to an end with the deletion of the Explanation to S.11 of the Evacuee Act. The court also held that even if S.11 was taken to be still applicable to wakfs after the deletion of the said Explanation, its provisions stood expressly repealed by the provisions of S.69 (2) of the Wakf Act and in the alternative by implication, the Wakf Act being a special and later statute. 2. The court held that the Punjab Wakf Board constituted under the Wakf Act was the sole authority entitled to manage Muslim Wakfs in Punjab.
Final Decision: The court allowed the appeal and dismissed the plaintiff's suit. The parties were left to bear their own costs.
, J.
1. Do the provisions of S.15 of the Wakf Act 1954 impliedly repeal or completely override those of S.11 of the Administration of Evacuee Property Act is the core question which has necessitated this reference to the Full Bench. Equally at issue is the correctness of the earlier judgments in Prithipal Singh V/s. Punjab Waqf Board, 1977 Pun LJ 271 and Khushi Ram V/s. Punjab Waqf Board, 1981 Pun LJ 572 holding categorically to the contrary.
2. The Punjab Waqf Board had instituted the suit against the defendant appellant for possession of the agricultural land measuring 9 Kanals 13 Marlas situated in village Bassi Babu Khan, tehsil and district Hoshiarpur. It was alleged that the property in dispute was Waqt Property in terms of Sec.66-C of the Waqf Act and was vested in the Custodian in trust for public purposes of religious and charitable nature. It was the stand that the Waqf Act 1954 (hereinafter called the Act) was applied and enforced in Punjab with effect from the 10th of Oct. , 1959 and this property was transferred by the Custodian to the plaintiff-Waqf Board registered under Sec.25 of the Waqt Act, 1954: It was alleged that the defendant-appellant was in forcible possession of the property in dispute since 1970 and was holding it on behalf of the Custodian and consequently his possession was of a permissible nature and in essence of a licensee.
3. The defendant-appellant controverted the averments made on behalf of the plaintiff and claimed himself to be a tenant-at-will under the plaintiff-Board at the rate of Rs.15/- per Kanal as its rent. Particularly the defendant-appellant challenged the jurisdiction of the Civi1 Courts to try the suit.
4. On the pleadings of the parties six issues were framed a the material one being No.6 is in the terms following: "8. If issue No.4 is proved, whether the civil court has jurisdiction to try this snit?" The trial Court came to the finding that the defendant-appellant was a tenant and consequently held that he could be only ejected under the tenancy laws for which the jurisdiction lay with the revenue Courts. The suit of the plaintiff-respondent was consequently dismissed. However, on appeal the learned Ist Additional District Judge, Hoshiarpur, held that the defendant-appellant was not proved to be a tenant and allowing the appeal decreed the suit of the plaintiff-respondent.
5. The judgment and decree of the lower appellate Court was impugned only on the ground that the respondent Waqf Board has no locus standi to fi1e the suit and reliance for this contention was placed primarily on the single Bench judgment of this Court in Prithipal Singhs case (1977 Pun LJ 271) (supra ). As doubts were raised about the correctness of the view, the appeal was admitted to a hearing by the Division Bench. By the time it came up for regular hearing, Prithipal Singhs case (supra) was affirmed by a Division Bench of this Court in Khushi Rams case (1981 Pun LJ 572) (supra ). The correctness of these judgments was, however, assailed at behalf of the respondent-Waqf Board on the ground that the provisions of S.11 of the Administration of Evacuee property Act stood superseded and repealed by S.15 of the Waqf Act 1954. Reliance also was sought to be placed on S.69 (2) of the Punjab Waqf Act. In view of the significant question involved, the matter was referred to the Full Bench and that is how it is before us.
6. At the very threshold it deserves pointed notice that in essence the identical question within this jurisdiction was first raised before O. Chinnappa Reddy, J. in Prithipal Singhs case (supra ). With his usual perspicacity the learned Judge held as under in the categoric terms:-
". . . . . . . . . . . . Admittedly no trustees have so far been appointed and, therefore, t e suit property must continue to vest in the Custodian of Evacuee Property. The lower appellate Court thought that S.15 of the Muslim Wakfs Act, which enables the Waqf Board to exercise general power of superintendenc
