TRADERS ASSOCIATION ZIYARAT BABA RESHI TANGMARG vs UNION TERRITORY OF J AND K AND ORS. (REVENUE / WAKF BOARD)

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2024 Supreme(Online)(J&K) 200

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR

Reserved on: 16.02.2024

Pronounced on: 29.02.2024

WP(C) No.2361/2022
c/w
WP(C) No.2117/2023
WP(C) No.2968/2022

WP(C) No.2361/2022

Traders Association Ziyarat Baba Reshi (RA) Tangmarg
Through:-
1. Mohammad Yousuf Sheikh (Age 60 years)- President
S/o Laal Sheikh, R/o Nambalnaal Tangmarg
Tehsil Tangmarg District Baramulla
2. Manzoor Ahmad Tantray (age 55 years)-General Secretary S/o
Abdul Gani Tantray R/o Chontipatri Tehsil Tangmarg District
Baramulla.
3. Ghulam Mohammad Reshi (age 52)-Vice President
S/o Abdul Gaffar Reshi
R/o Chontipatri Tehsil Tangmarg District Baramulla
4. Abdul Salam Sheikh (Age 58 years)-Secretary
S/o Laal Mohammad Sheikh
R/o Nambalnaal Tehsil Tangmarg District Baramulla
5. Abdul Ahad Sheikh (Age 56 years-Joint Secretary
S/o Ghulam Ahmad Sheikh
R/o Alpatri Babareshi Tehsil Tangmarg District Baramulla
6. Bashir Ahmad Khan (age 53 years-Member
S/o Ghulam Mohi-ud-Din Khan
R/o Chontipaptri Tehsl Tangmarg District Baramulla
All office Bearers of Traders Association Baba Reshi (RA)
Tangmarg and Shopkeepers/Kiosk owners of market Ziyarat
Sharief Baba REshi (RA) Market.

.....Petitioners(s)

V/s
1.
Union Territory of J&K through Commissioner cum
Secretary to Govt. Revenue, Hajj & Auqaf Deptt.,
Civil Secretariat, Srinagar.
2.
Chairperson J&K Board for Muslim Specified Waqf and Waqf
Properties, Zero Bridge, Srinagar.

3.
The Chief Executive Officer, J&K Board for Muslim Specified
Waqaf and Waqf Property Zero Bridge, Srinagar

4. Executive Magistrate (Tehsldar) J&K Waqf Board, Srinagar

5.
Deputy Commissioner, Baramulla

...Respondent(s)

WP(C) No.2117/2023

1.
Abdul Rashid Bhat (age 70 years)

S/o Abdul Ahad Bhat

R/o Mulabangil Tehsil Tangmarg District Baramulla

2.
Mohammad Shafi Lone (Age 60 years)
S/o Wali Mohammad
R/o Waniloo Hajibal Tehsil Tangmarg District Baramulla

3.
Ghulam Mohiddin Khan (Age 55 years)
S/o Sonaullah Khan
R/o Waripora Magam Tehsil Karhama District Baramulla

4.
Mohammad Yasin Ganaie (Age 50 years)
S/o Ghulam Mohammad
R/o Gokhama Kunzer Tehsil Tangmarg District Baramulla

5.
Ghulam Ahmad Lone (Age 70 years)
S/o Mohammad Subhan
R/o Waniloo Hajibal Tehsil Karhama District Baramulla

6.
Nazir Ahmad Rather (Age 55 years)
S/o Mohammad Subhan Rather
R/o Namalnaar Babareshi Tehsil Tangmarg District Baramulla

7.
Ghulam Ahmad Bhat (Age 60 years)
S/o Abdul Ahad
R/o Mulabangil Tehsil Tangmarg District Baramulla
8.
Bashir Ahmad Bhat (Age 62 years)
S/o Abdul Ahmad
R/o Mulabangil Tehsil Tangmarg District Baramulla

9.
Naseema Begum (Age 55 years)
W/o Ghulam Rasool Bhat
R/o Batapora Pattan Tehsil Pattan District Baramulla

10. Mohammad Yousuf War (Age 65 years)
S/o Abdul Gani
R/o Budipora Tangmarg Tehsil Tangmarg, District Baramulla

11. Khurshid Ahmad War (age 42 years)
S/o Abdul Ahad

R/o Budipora Tangmarg Tehsil Tangmarg District Baramulla

12. Abdul Hamid Kalas (Age 43 years)
S/o Ghulam Mohammad
R/o Kahwal Bulbulabad Baramulla District Baramulla

13. Wali Mohmmad Bhat (Age 68 years)
S/o Abdul Gani
R/o Mulabangil Tehsil Tangmarg District Baramulla

14. Abdul Majeed Lone (Age 50 years
S/o Abdul Aziz
R/o Waniloo Tangmarg Tehsil Tangmarg District Baramulla

15. Mohammad Shafi Wani (Age 55 years)
S/o Ghulam Ahmad

R/o Wayil Pattan Tehsil Pattan District Baramulla.

…….Petitioner(s)

V/s

1. Union Territory of J&K through Commissioner cum
Secretary to Govt. Revenue, Hajj & Auqaf Deptt.,
Civil Secretariat, Srinagar.
2.
Chairperson J&K Board for Muslim Specified Waqf and Waqf
Properties, Zero Bridge, Srinagar.
3.
The Chief Executive Officer, J&K Board for Muslim Specified
Waqaf and Waqf Property Zero Bridge, Srinagar

4. Executive Magistrate (Tehsldar) J&K Waqf Board, Srinagar

5.
Deputy Commissioner, Baramulla

...Respondent(s)

WP(C) No.2968/2022

1.
Firdous Ahmed Sheikh, aged 65 years
S/o Haji Ghulam Rasool Sheikh
R/o Naid Doori, Shri Bhat Alamgari Bazar Srinagar,
Shop No.10
2. Shameem Hussain Bhat, aged 61 years
S/o Ghulam nabi Bhat
R/o Drugjan, Dalgate Srinagar, Shop No.91

3.
M/s Habib Sheikh and Sons

Through Abdul Salam Sheikh, aged 88 years

S/o Habibullah Sheikh R/o Hawal Srinagar

Shop No.73 and 78

4.
Majeed & Co

Through its proprietor

Abdul Majeed Magloo, aged 75 years

S/o Mohammad Sidiq Magloo

R/o Mujahid Manzil Dalal Mohalla, Srinagar

R/P Nowgam Srinagar, Shop No.74

5.
Sheikh Najeeb Ahmed, aged 65 years

S/o Haji Mohammad Shafi Sheikh

R/o Bishember Nagar, Khayam, Srinagar

Tenant of Hall

6.
Nabil Riyaz, aged 35 years

S/o Riyaz Ahmed Shah

R/o Gulab Bagh, Srinagar

Room No.10-B

7.
Haji Mohammad Shafi Sheikh

S/o Mohammad Ismaiel Sheikh
R/o Bishember Nagar, Munawar Abad, Srinagar
Through his son Najeeb Ahmed Sheikh, age 65 years
S/o Mohammad Shafi Shafi Sheikh

Room No.5 and 6

8.
Mohammad Amin Shah

S/o Gul Shah

R/o Gulab Bagh, Srinagar

Through his son Riyaz Ahmed Shah, aged 65 years

R/o Gulab Bagh, Srinagar

Shop No.88, 89 and 90

……..Petitioners

Through:

Mr. N.A.Tabasum, Advocate with

Mr. Idrees Ahmad & Mr. Nayeem-ul-Haq,
Advocates in WP(C) Nos.2361/2022 & 2117/2023

Ms. Rehana Fayaz, Advocate with Mr. Agha
Faisal Ali, Advocate in WP(C) No.2968/2022
V/s

1. Union Territory of J&K through Commissioner/
Secretary to Govt. Revenue, Hajj & Auqaf, J&K
Civil Secretariat, Srinagar/Jammu.

2.
Chief Executive Officer, J&K Waqaf Board, Zero Bridge,
Srinagar

3. Executive Magistrate (Tehsldar) J&K Waqf Board,
Zero Bridge, Srinagar

…….Respondents

Through:

Mr. M.I.Dar, Advcoate with

Mr. Ruaani Ahmad Baba & Ms. Sana Imam,
Advocates

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGEMENT

1. Since the issue raised in all these petitions was similar, as such, these petitions were heard together and are being disposed of by this common judgment.

2. The petitioners in all these petitions are in occupation of Waqf properties as licensees thereof and have essentially raised a dispute with regard to an arbitrary, irrational and exorbitant enhancement of monthly rent. The star argument of learned counsel appearing for the petitioners is that the Waqf Board being an instrumentality of the State is expected to act fairly and in public interest. The Waqf Board increased the rentals of the properties under occupation of the petitioners in ex-parte and without providing them an opportunity of being heard.

3. Mr. M.I.Dar, appearing on behalf of the Waqf Board takes strong exception to the maintainability of the petitions on the ground that State Waqf Board constituted under The Waqf Act, 1995 is neither a State nor any person or authority amenable to the writ jurisdiction vested in this Court under Article 226 of the Constitution of India.

4. Having heard learned counsel for the parties and regard being had to the preliminary objection raised by Mr. M.I.Dar to the maintainability of these petition, following preliminary issue was framed and taken up for consideration in the first instance:-

Whether the State Board of Auqaf constituted under Section 13 of the Waqf Act, 1995 [“the Act”] is amenable to the writ jurisdiction of this Court vested by Article 226 of the Constitution of India?

5. The issue raised before me shall not pose much difficulty as a Division Bench of this Court in the case of Shafat Ahmad Khan and others v. State and others, JKJ 2016 (1) 433 has already considered the issue of maintainability of writ petition under Article 226 of the Constitution of India against the Waqf Board constituted under J&K Muslim Specified Waqfs and Specified Waqf Properties (Management Regulation) Act, 2004. The Division Bench after placing reliance on Ajay Hasia v. Khauid Mujib Sehravardi, 1981 (1) SCC 722; Andi Mukta Sadguri Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V R Rudani, 1989 (2) SCC 69; Pareep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 (5) SCC 111; Zee Telefilms Ltd. v. Union of India 2005(4) SCC 649 and K.K.

Saksena v. International Commission on Irrigation and Drainage, 2015 (4) SCC 670 come to the conclusion that the State Government did not have any deep and pervasive administrative control over the Waqf Board and was exercising merely regulatory control over the Board. It was, thus, opined that the Waqf Board was not falling in the definition of „other authority‟ used in Article 226 of the Constitution. It further held that while dealing with the eviction of unauthorized occupants and demolition of unauthorized constructions on the Waqf property, the Board was not in strict sense discharging any public functions or public duty. It was, thus, concluded by the Division Bench that even if Waqf Board were to be held as “other authority” within the meaning of Article 226 of the Constitution of India, yet its decision regulating management of the Waqf properties viz-a-viz a private individual would not involve public law element. The judgment in K.K.Saksena (supra) was strongly relied upon by the Division Bench. Shorn of unnecessary details and without tracing out the development of law on the point, suffice would it be to set out the conclusions drawn by the Division Bench of this Court in Shafat Ahmad Khan‟s case. For facility of reference, relevant extract from the judgment in Shafat Ahmad Khan’s case (supra) is reproduced hereunder:-

“18. The legal position that emerges against above backdrop, may be summarized as under:-

i. That definition of „State‟ contained in Artl. 12 is for the purpose of application of provisions contained in part III of th

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