SRINAGAR: The Jammu & Kashmir and Ladakh High Court on Thursday upheld the order issued by the J&K Wakf Board to assume control of the management and associated properties of shrines in Jammu and Kashmir.
The Board had issued this order on February 17, 2022, extending its authority over shrines and their assets across the entire J&K Union Territory. Furthermore, on April 1, 2023, the Board ordered the takeover of Ziyarat Sharief Syed Khazir Sahab at Rayil, Gund Kangan Ganderbal, along with its associated properties, in accordance with the Waqf Act.
These orders were contested in the current petition. The order also stipulated that any association or local Auqaf related to such Wakfs would be considered void-ab-initio.
Justice Javed Iqbal, in support of the Board’s orders, commented, “The respondent Board can rightly be said to have resorted to the provisions of the Waqf Act, and the issue raised by the petitioner-Shrine is misconceived and not legally tenable.”
“Since SRO 510 of 1985, as well as the decision of the Special Officer declaring the Ziyarat in question and its associated properties as Wakf property under the Act, is not under challenge, this Court refrains from expressing any opinion on that matter. The petition fails, and accordingly, it is dismissed. As a corollary, the contempt notices are recalled, proceedings dropped, and the petition is disposed of,” ruled the Court.
The Court made a distinction between a notification needed to be published in the Government Gazette to create or extinguish a right or liability and one requiring the dissemination of information to the public about an existing fact. In the latter case, it is considered directory rather than mandatory.
Regarding the instant case, the Court noted that the publication of a notification in the Government Gazette had not created or extinguished a right or liability but had only stated an existing fact, that the property had been declared as Wakf property by the Special Officer. This did not change the nature, status, or character of the property declared as Wakf property under Section 5 of the 1978 Act.
The counsel for the petitioner argued that the respondent Board had not followed the prescribed procedure, including conducting a survey and holding an inquiry in line with the principles of natural justice, before declaring a property as Wakf Property. This, they argued, violated the rights enshrined under Article 226 and 30 of the Constitution of India.
However, the counsel representing the Board countered these arguments, stating that the Shrine in question had been declared a Wakaf in 1985 under the Act of 1978, and a formal declaration had been made by the Government of Jammu and Kashmir.
The respondent Board provided SRO 510 dated December 11, 1985, issued by the Government of Jammu and Kashmir, which declared Ziyarat Sharief Syed Khazir Sahab at Rayil, Gund Kangan, as a Wakaf property in 1985 under the Act of 1978. They argued that no new or further proceedings were required under the Act of 1995, as the action taken under the Act of 1978 was deemed to have been taken under the Act of 1995.
The Court noted that the 1978 Act’s scheme required a survey by a Special Officer, followed by a decision in the form of a report by the Special Officer regarding whether a particular property is or is not a Wakaf property. This decision is considered final, although subject to appeal by an aggrieved person to the Government.
