HC directs Govt to constitute tribunals on Waqaf matters

Srinagar, March 1:  The High Court of J&K and Ladakh directed the government to constitute one or more tribunals regarding any dispute, question, or other matter relating to Waqf or its property in Jammu and Kashmir.

A bench of Justice Sanjeev Kumar ordered the constitution of the tribunals while dismissing on maintainability a batch of petitions as it concluded that the Board of Auqaf constituted under Section 13 of The Waqf Act, was not amenable to the jurisdiction vested in the High Court under Article 226 of the Constitution of India.

However, the court ordered “status quo” about the “subject matter” of the pleas.

While the court dismissed the writ petitions as “not maintainable”, it said: “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 J&K government to constitute one or more tribunals, as it may think fit, in terms of Section 83 of the Act (Waqf Act, 1995) within two months from the date of this judgment (February 29).”

The court said that till the government constitutes the tribunal or tribunals in terms of Section 83 of the act, “there shall be status quo about the subject matter of these writ petitions”.

Thirty aggrieved persons who are in occupation of Waqf properties as licensees in three writ petitions had approached the court and raised a dispute about an arbitrary, irrational, and exorbitant enhancement of monthly rent.

Given an objection raised to the maintainability of the petitions, the question before the court was whether the State Board of Auqaf constituted under Section 13 of the Waqf Act, 1995, was amenable to the writ jurisdiction of the High Court vested by Article 226 of the Constitution of India.

“Neither the Board of Auqaf constituted by the central government or J&K government while issuing orders, directions, or notices regulating the lease of properties vested in it to private individuals for generating funds performs any public function or duty nor such order, direction, or notice involves any public law element,” the court said. “For this 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 agreements entered into or to be entered into by the parties.”

The counsel for the petitioners submitted that in the absence of the constitution of tribunal in the Jammu and Kashmir under Section 83 of the act and the non-availability of remedy under Article 226 of the constitution of India, the petitioners would be rendered remediless.

“From a careful reading of Subsection (1) of Section 83 of the act, it 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 court said.