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
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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.
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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
ondents
…….Resp
Through:
Mr. M.I.Dar, Advcoate with
Mr. Ruaani Ahmad Baba & Ms. Sana Imam,
Advocates
Coram:
HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
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.
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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?
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
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 case (supra) is reproduced
Shafat Ahmad Khan’s
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 the Constitution.
ii. Writ jurisdiction of High Court under Art. 226 is not limited to the
Government or Authority which qualifies to be „State‟ under Art.
12. Power extends to issue directions, orders or writs to “any person
or Authority”.
iii. used in Art. 226 is to receive wider
The expression „Authority‟
meaning than the meaning given to the same expression used in Art.
12 of the Constitution.
iv.
The term „Authority‟ iin Art. 12 means a body, performing public
functions or public duty. The emphasis always being on the nature
of duty imposed on such body, namely “public duty” to make it
exigible to Art. 226 of the Constitution.
v. That merely because the Government has power to depute an
Officer(s), to be part of administrative set up, of an institution or
body is not to be
construed as „pervasive administrative‟ control
over the body. Regulatory power is always to be distinguished from
administrative control.
vi. Power to issue directions, orders or writs under Art. 226 is not
limited to enforcement of fundamental rights, conferred by Part-III
of the Constitution but also „for any other purpose‟.
vii. Even if a body performing public duty is amenable to writ
jurisdiction, all its decisions are not subject to judicial review. Only
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
those decisions which have public element therein can be judicial
reviewed under writ jurisdiction.”
6. It is in the light of legal position succinctly summed up by
the Division Bench, we need to examine various provisions of the Waqf
Act, 1995. The Waqf Board constituted under Section 13 of the Act is
undoubtedly a statutory authority. An authority constituted under a
statute would not ipso facto come within the ambit of term “State”
referable to Article 12 of the Constitution of India. It would not come
less the authority
within the scope of term “State” under Article 12 un
concerned satisfies three tests laid down by the Supreme Court in the
case of Pardeep Kumar Biswas (supra) i.e. the authority is financially,
functionally and administratively controlled by the Government.
7. It is trite that the definition of State contained under Article
12 is for the purpose of its application to provisions contained in Part-III
of the Constitution. Obviously, prerogative writs under Article 32 of the
Constitution of India contained in Part-III of the Constitution shall be
issued by the Hon‟ble Supreme Court for enforcement of fundamental
rights against the authorities comprehended in the
term “State” as
contained in Article 12 of the Constitution of India. The jurisdiction of
High Court under Article 226 is an extraordinary jurisdiction and is not
limited to the Government, its instrumentalities or an authority which
qualifies to be a „State‟ under Article 12 of the Constitution. The power
of the High Court to issue writ, order or direction extends to „any person
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
or a
uthority‟ and the issuance of writ, order or direction under Article
226 is not only limited to the enforcement of fundamental rights but
would lie even for any other purpose.
The term „any other purpose‟
contained in Article 226 of the Constitution of India is of course
required to be construed ejusdem generis, meaning thereby, any other
“
purpose would not be a private dispute between the parties but for
”
enforcement or performance of a duty having public law element.
8. To better appreciate the controversy raised in these
petitions, it would be appropriate to set out certain provisions contained
in the Act, which for facility of reference are reproduced hereunder:-
Section 13 of the Act
13. Incorporation.
“
(1) With effect from such date as the State Government may, by
notification in the Official Gazette, appoint in this behalf, there shall
1
be established a Board of [Auqaf] under such name as may be
specified in the notification:
Provided that in case where a Board of Waqf has not been
established, as required under this sub-section, a Board of Waqf shall,
without prejudice to the provisions of this Act or any other law for the
time being in force, be established within six months from the date of
commencement of the Wakf (Amendment) Act, 2013
(2) Notwithstanding anything contained in sub-section (1), if the
Shia auqaf in any State constitute in number more than fifteen per
cent. of all the auqaf in the State or if the income of the properties of
the Shia auqaf in the State constitutes more than fifteen per cent of the
total income of properties of all the auqaf in the State, the State
Government may, by notification in the Official Gazette, establish a
Board of Auqaf each for Sunni auqaf and for Shia auqaf under such
names as may be specified in the notification.
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
(2A) Where a Board of Waqf is established under sub-section (2) of
section 13, in the case of Shia waqf, the Members shall belong to the
Shia Muslim and in the case of Sunni waqf, the Members shall belong
to the Sunni Muslim.
(3) The Board shall be a body corporate having perpetual succession
and a common seal with power to acquire and hold property and to
transfer any such property subject to such conditions and restrictions
as may be prescribed and shall by the said name sue and be sued.
Relevant extract of Section 14 of the Act is reproduced as
under:-
2
Composition of Board.---(1) The Board for a State and [the
“14.
National Capital Territory of Delhi] shall consist of--
(a) a Chairperson;
(b) one and not more than two members, as the State Government
may think fit, to be elected from each of the electoral colleges
consisting of--
(i) Muslim Members of Parliament from the State or, as the case may
be, the National Capital Territory of Delhi;
(ii) Muslim Members of the State Legislature;
(iii) Muslim members of the Bar Council of the concerned State or
Union territory:
Provided that in case there is no Muslim member of the Bar Council
of a State or a Union territory, the State Government or the Union
territory administration, as the case may be, may nominate any senior
Muslim advocate from that State or the Union territory, and]
(iv) mutawallis of the auqaf having an annual income of rupees one
lakh and above.
4
[Explanation I.--For the removal of doubts, it is hereby declared that
the members from categories mentioned in sub-clauses (i) to (iv),
shall be elected from the electoral college constituted for each
category.
Explanation II.--For the removal of doubts it is hereby declared that
in case a Muslim member ceases to be a Member of Parliament from
the State or National Capital Territory of Delhi as referred to in sub-
clause (i) of clause (b) or ceases to be a Member of the State
Legislative Assembly as required under sub-clause (ii) of clause (b),
such member shall be deemed to have vacated the office of the
member of the Board for the State or National Capital Territory of
Delhi, as the case may be, from the date from which such member
ceased to be a Member of Parliament from the State National Capital
Territory of Delhi, or a Member of the State Legislative Assembly, as
the case may be;
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
5
[(c) one person from amongst Muslims, who has professional
experience in town planning or business management, social work,
finance or revenue, agriculture and development activities, to be
nominated by the State Government;
(d) one person each from amongst Muslims, to be nominated by the
State Government from recognised scholars in Shia and Sunni Islamic
Theology;
(e) one person from amongst Muslims, to be nominated by the State
Government from amongst the officers of the State Government not
below the rank of Joint Secretary to the State Government;
(1A) No Minister of the Central Government or, as the case may be, a
State Government, shall be elected or nominated as a member of the
Board:
Provided that in case of a Union territory, the Board shall consist of
not less than five and not more than seven members to be appointed
by the Central Government from categories specified under sub-
clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1):
Provided further that at least two Members appointed on the Board
shall be women:
Provided also that in every case where the system of mutawalli exists,
there shall be one mutawalli as the member of the Board.
”
Relevant extract of Section 32 of the Act reads thus:-
----(1) Subject to any rules
“32. Powers and functions of the Board.
that may be made under this Act, the general superintendence of
all auqaf in a State shall vest in the Board established or the State; and
it shall be the duty of the Board so to exercise its powers under this
Act as to ensure that the auqaf under its superintendence are properly
maintained, controlled and administered and the income thereof is
duly applied to the objects and for the purposes for which such auqaf
were created or intended:
Provided that in exercising its powers under this Act in respect of
any waqf the Board shall act in conformity with the directions of
the waqf, the purposes of the waqf and any usage or custom of
the waqf sanctioned by the school of Muslim law to which the waqf
belongs.
.......................”
Section 56 of the Act is reproduced hereunder:-
56. Restriction on power to grant lease of waqf property.--(1) A
“
lease for any period exceeding thirty years] of any immovable
property which is waqf property, shall, notwithstanding anything
contained in the deed or instrument of waqf or in any other law for the
time being in force, be void and of no effect:
Provided that a lease for any period up to thirty years may be made
for Commercial activities, education or health purposes, with the
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
approval of the State Government, for such period and purposes as
may be specified in the rules made by the Central Government:
Provided further that lease of any immovable waqf property, which is
an agricultural land, for a period exceeding three years shall,
notwithstanding anything contained in the deed or instrument of waqf
or in any other law for the time being in force, be void and of no
effect:
Provided also that before making lease of any waqf property, the
Board shall publish the details of lease and invite bids in at least one
leading national and regional news papers.
A lease for a period of one year but not exceeding thirty years of
immovable property which is waqf property shall, notwithstanding
anything contained in the deed or instrument of waqf or in any other
law for the time being in force, be void and of no effect unless it is
made with the previous sanction of the Board.
(3) The Board shall, in granting sanction for lease or renewal thereof
under this section review the terms and conditions on which the
lease is proposed to be granted or renewed and make its approval
subject to the revision of such terms and conditions in such manner as
it may direct:
Provided that the Board shall immediately intimate the State
Government regarding a lease for any period exceeding three years of
any waqf property and thereafter it may become effective after the
expiry of forty-five days from the date on which the Board intimates
the State Government.
(4) Every rule made by the Central Government under this section
shall be laid, as soon as may be after it is made, before each House of
Parliament, while it is in session for a total period of thirty days,
which may be comprised in one session or in two or more successive
sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both
Houses agree in making any modification in the rule or both Houses
agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may
be; so, however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under
that rule.
”
Section 77 of the Act reads thus:-
Waqf Fund.--(1) All moneys received or realised by the Board
“77.
under this Act and all other moneys received as donations,
benefactions or grants by the Board shall form a fund to be called
the Waqf Fund.
(2) All moneys received by the Board, as donations, benefactions and
grants shall be deposited and accounted for under a separate sub-
head.
(3) Subject to any rules that may be made by the State Government in
this behalf, the Waqf Fund shall be under the control of the Board, so,
however, that the Waqf Fund under the control of common Waqf
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
Board shall be subject to rules, if any, made in this behalf by the
Central Government.
(4) The Waqf Fund shall be applied to--
(a) repayment of any loan incurred under section 75 and payment of
interest thereon;
(b) payment of the cost of audit of the Waqf Fund and the accounts
of auqaf;
(c) payment of the salary and allowances to the officers and staff of
the Board;
(d) payment of traveling allowances to the Chairperson, members, of
the Board;
(e) payment of all expenses incurred by the Board in the performance
of the duties imposed, and the exercise of the powers conferred, by or
under this Act;
(f) payment of all expenses incurred by the Board for the discharge of
any obligation imposed on it by or under any law for the time being in
force.
3
[(g) payment of maintenance to Muslim women as ordered by a
court of competent jurisdiction under the provisions of the Muslim
Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986).
(5) If any balance remains after meeting the expenditure referred to in
sub-section (4), the Board may use any portion of such balance for the
preservation and protection of waqf properties or for such other
purposes as it may deem fit.”
9. Scanning through different provisions of the Act,
particularly, the provisions contained in Chapter IV makes it abundantly
clear that no doubt the Board of Auqaf constituted by the State
Government under Section 13 of the Act is a statutory body but the same
is not under direct, deep, and pervasive control of the Government. It
may be clarified that so far as Union Territory is concerned, the Board
of Auqaf is constituted by the Central Government from the categories
specified under Subsection (1)(b)(i) to (iv) of Section 14 of the Act or
Subjections (1)(c) to (e) of Section 14 of the Act.
10. In terms of Section 32 of the Act, general superintendent of
Auqaf in a State vests with the Board and it is the duty of the Board to
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
exercise its power under the Act to ensure that Auqaf under its
superintendence are properly managed, controlled or administered and
the income generated therefrom is duly applied to achieve the objects
and the purposes for which the Auqaf had been created.
11. Under Section 77 of the Act, a Waqf Fund is created which
consists of all moneys received or realized by the Board under the Act as
also of other moneys received as donations, benefactions or grants by
the Board. As is provided under Subsection (3) of Section 77 of the Act,
subject to any rules that may be made by the State Government in this
behalf, the Waqf fund is placed under the control of the Board. Under
Section 56 of the Act, grant of lease of Waqf property is regulated.
Power to lease out the Waqf property, subject to the restraint contained
in Section 56 of the Act read with Waqf Properties Lease Rules, 2014,
vests with the Board of Auqaf.
12. Viewed from any angle, the Act does not vest in the Central
Government or State Government a deep and pervasive financial,
functional and administrative control and that being the position, the
Board of Auqaf, despite being a statutory body constituted under the
Act, may not qualify to be State as contained under Article 12 of the
„ ‟
Constitution of India. Aside, the function of the Board of Auqaf entering
into lease agreements with private individuals in respect of Waqf
properties is more of a commercial/contractual nature rather than a
public function. The arrangement between the Board of Auqaf and the
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WP(C)Nos.2361/2022, 2117/2023 & 2968/2022
lessees aimed at utilization of Waqf properties for generating funds to be
applied to achieve the objects and purposes of the creation of Waqf is
more or less commercial in nature and, therefore, lacks public law
element. Although, as discussed above, the Board of Auqaf does not fall
Article 12 of the
within the definition of term „State‟ contained in
Constitution of India, yet a writ under Article 226 of the Constitution of
India would lie if it is found that the Board is performing public
functions and the impugned action taken by it involves a public law
element in it.
13. Obviously, as it has emerged from the discussion made
above, neither the Board of Auqaf, constituted by the Central
Government or Government of Jammu & Kashmir while issuing orders,
directions or notices regulating the lease of properties vested in it to
private individual(s) for generating funds, performs any public
function/duty nor such order, direction or notice involves any public law
element.
14. For the aforesaid reason, no writ under Article 226 of the
Constitution of India would lie against the Board of Auqaf at the
instance of lessees or persons in occupation of the Waqf properties, that
too, for the enforcement of private rights arising out of the lease
agreement(s) entered into or to be entered into by the parties.
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15. Before I close, I deem it in place to refer to a recent
judgment of the Supreme Court in the case of
St. Mary’s Education
Society and another vs. Rejendra Prasad Bargava and others, 2022
SCC Online SC 1091. The Supreme Court after surveying the law on
the subject summed up its conclusion in para 69 which is set out below:
“69. We may sum up our final conclusions as under:
(a) An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public
duties or public functions. The public duty cast may be either
statutory or otherwise and where it is otherwise, the body or
the person must be shown to owe that duty or obligation to the
public involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to achieve
the same for the collective benefit of the public or a section of
it and the authority to do so must be accepted by the public.
(b) Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a
direct nexus with the discharge of public duty. It is
indisputably a public law action which confers a right upon
the aggrieved to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual wrongs or
breach of mutual contracts without having any public element
as its integral part cannot be rectified through a writ petition
under Article 226. Wherever Courts have intervened in their
exercise of jurisdiction under Article 226, either the service
conditions were regulated by the statutory provisions or the
employer had the status of “State” within the expansive
definition under Article 12 or it was found that the action
complained of has public law element.
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(c) It must be consequently held that while a body may be
discharging a public function or performing a public duty and
thus its actions becoming amenable to judicial review by a
Constitutional Court, its employees would not have the right
to invoke the powers of the High Court conferred by Article
226 in respect of matter relating to service where they are not
governed or controlled by the statutory provisions. An
educational institution may perform myriad functions
touching various facets of public life and in the societal
sphere. While such of those functions as would fall within the
domain of a "public function" or "public duty" be
undisputedly open to challenge and scrutiny under Article 226
of the Constitution, the actions or decisions taken solely
within the confines of an ordinary contract of service, having
no statutory force or backing, cannot be recognised as being
amenable to challenge under Article 226 of the Constitution.
In the absence of the service conditions being controlled or
governed by statutory provisions, the matter would remain in
the realm of an ordinary contract of service.
(d) Even if it be perceived that imparting education by private
unaided the school is a public duty within the expanded
expression of the term, an employee of a nonteaching staff
engaged by the school for the purpose of its administration or
internal management is only an agency created by it. It is
immaterial whether “A” or “B” is employed by school to
discharge that duty. In any case, the terms of employment of
contract between a school and nonteaching staff cannot and
should not be construed to be an inseparable part of the
obligation to impart education. This is particularly in respect
to the disciplinary proceedings that may be initiated against a
particular employee. It is only where the removal of an
employee of nonteaching staff is regulated by some statutory
provisions, its violation by the employer in contravention of
law may be interfered by the court. But such interference will
be on the ground of breach of law and not on the basis of
interference in discharge of public duty.
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(e) From the pleadings in the original writ petition, it is apparent
that no element of any public law is agitated or otherwise
made out. In other words, the action challenged has no public
element and writ of mandamus cannot be issued as the action
was essentially of a private character.
16. In view of the discussion made above, I have come to a
definite conclusion that the Board of Auqaf constituted under Section 13
and 14 of the Act is not amenable to the jurisdiction vested in this Court
under Article 226 of the Constitution of India, more so when action
impugned neither emanates from the discharge of public function by the
Board of Auqaf nor does it involve a public law element.
17. Having held that the writ petitions are not maintainable, I
deem it appropriate to deal with the argument of learned counsel for the
parties that in the absence of Constitution of Tribunal in the Union
Territory of Jammu & Kashmir under Section 83 of the Act and non-
availability of remedy under Article 226 of the Constitution of India, the
petitioners would be rendered remediless. It is argued that in terms of
Section 85 of the Act, jurisdiction of civil Courts, revenue Courts and
any other authority is completely barred.
18. Before I embark upon the discussion on the issue, I deem it
appropriate to set out relevant extract of Section 83 and Section 85 in its
entirety. Relevant extract of Section 83 of the Act reads thus:-
bunals, etc. (1) The State Government shall, by
“83. Constitution of Tri —
notification in the Official Gazette, constitute as many Tribunals as it may
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think fit, for the determination of any dispute, question or other matter
relating to a waqf or waqf property, eviction of a tenant or determination of
rights and obligations of the lessor and the lessee of such property, under this
Act and define the local limits and jurisdiction of such Tribunals.
………………………………………”
Section 85 of the Act is reproduced hereunder:-
85. Bar of jurisdiction of civil courts. No suit or other legal proceeding
“ —
shall lie in any civil court, revenue court and any other authority in respect of
any dispute, question or other matter relating to any waqf, waqf property or
other matter which is required by or under this Act to be determined by a
Tribunal.
”
19. From a careful reading of Subsection (1) of Section 83 of
the Act, it clearly comes out that each State Government which would
include Union Territory as well is put under an obligation to constitute
one or more Tribunals, as it may think fit, by issuing notification in the
Official Gazette. The word “shall” used in respect of constitution of
Tribunal or Tribunals is mandatory in nature. It further comes out that
the Tribunal/Tribunals so constituted by the Government of State or
Union Territory shall have jurisdiction to determine any dispute,
question or other matter relating to a waqf or waqf property, eviction of
a tenant or determination of rights and obligations of the lessor and the
lessee of such property under this Act. Obviously, the dispute raised in
these petitions falls within the determination of Tribunal. As is apparent
from a reading of Section 85 of the Act, no Civil Court, Revenue Court
and any other authority shall have jurisdiction to entertain any suit or
other legal proceeding in respect of any dispute, question or other matter
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relating to any waqf property as also the matter which is required by or
under the Act to be determined by the Tribunal.
20. In view of the clear legal position emerging from a reading
of Sections 83 and 85 of the Act, this Court has no option but to agree
with the learned counsel appearing for the petitioners that in the event
these writ petitions are not entertained, the petitioners would be rendered
remediless.
21. Much was said about the power and jurisdiction of this
Court to entertain the writ petition despite availability of an alternative
remedy provided under the Statute. Suffice it to say the question of
relegating the parties to an alternative remedy or entertaining of a
petition under Article 226 despite availability of statutory alternative
remedy would arise only when this Court has jurisdiction to entertain the
writ petition. Had this Court come to a conclusion that writ petition
challenging the impugned action of the Board of Auqaf was amenable to
writ jurisdiction, certainly it would not have relegated the petitioners to
the remedy before the Tribunal for the simple reason that the Tribunal
does not exist.
22. In view of the foregoing and being aware that dismissal of
these writ petitions on the ground of maintainability under Article 226 of
the Constitution of India would in the present circumstances render the
petitioners remediless, this Court cannot entertain these petitions and
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exercise jurisdiction not vested in it. However, having regard to the
predicament faced by the petitioners or may be faced by similarly
situated persons in future, I deem it appropriate to remind the
Government of the Union Territory of its statutory duty enjoined on it
under Section 83 of the Act and to take requisite steps for constitution of
one or more Tribunals, as it may think fit, so that persons aggrieved are
not rendered remediless.
23. In the premises, writ petitions are held not maintainable and
the same are, accordingly, dismissed. However, while dismissing the
writ petitions and taking note of the chaotic situation created due to non
constitution of the Tribunal or Tribunals, a direction is issued to the
Government of Union Territory to constitute one or more Tribunals, as it
may think fit, in terms of Section 83 of the Act within a period of two
months from the date of this judgment. Till the Government constitutes
Tribunal/Tribunals in terms of Section 83 of the Act, there shall be
status quo with regard to the subject matter of these writ petitions.
(Sanjeev Kumar)
Judge
SRINAGAR
29.02.2024
Vinod,PS
Whether the order is speaking : Yes
Whether the order is reportable: Yes
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