M UHAM M AD YOUNAS TAHIR, J. The captioned appeal by leave of the Court has been directed against the judgment of the High Court, dated 29.12.2018, whereby, the appeal filed on behalf of the appellants, herein, has been dismissed as being incompetent.
2. The facts forming the background of the captioned appeal are that the respondents, herein, filed a reference application before the District Judge/Reference Judge Pallandri, alleging therein, that the land comprising khewat No.158 (new), 255 (old), khasra No.239/1-16, Ziarat/Shrine Bhola Shah and khasra Nos. 244, 240, 248, 271, 238, 242, 236, 241, 245, 237, 250, 446, 243, 247, 269 (old), situated in village Qillan was entered in the revenue record as total measuring 52 kanal, 6 maria. It was further alleged that during the recent land settlement, the said land has been renumbered as khasra No.710, measuring 1 kanal, 7 marla, khanqah/Shrine Bhola Shah and Khasra Nos.706, 702, 707, 692, 700, 716, 734, 693, 704, 717, 699, 713, 718, 701, 703, 696, 731, 695, 694, 697, 682, 688, 730, 711, 712, 705, 708, 708/1, 681, 714 and 715, showing the same as total measuring 53 Kanal, 15 marla. It was further alleged that the aforementioned land was firstly, entered in the name of Bhola Shah in the revenue record in the year 1964 Bik. and thereafter, it remained in the ownership and possession of the applicants/respondents, herein. It was stated that from the land in question, the land comprising khasra No. 239 (old), 710 (new), measuring 1 kanal, 17 marlas, was declared as Khanqah/Shrine vide Notification No. 682-86/Auqaf/75, dated 19.08.1975 regarding which the applicants/respondents, herein, has no objection. It was claimed that the respondents/petitioners, herein, have illegally took over the land measuring 52 kanal, 12 marla belonging to the applicants in their possession vide notification No. Auqaf/4907- 13/2006 dated 31.07.2001 and subsequently got entered a mutation in their favour in connivance with the revenue staff. It was further claimed that the aforesaid land is not a waqf property rather the applicants are in possession of the same as moroosi tenants and the notification dated 31.07.2001, has been issued without providing an opportunity of hearing to them. It was further claimed that the reference from the date of knowledge is within limitation, hence, while accepting the same the notification dated 31.07.2001, may be declared as illegal and inoperative. The reference was contested by the other side by filing objections, wherein, it was stated that the reference is hopelessly time barred and has been filed in derogation with the provisions of Azad Jammu and Kashmir Waqf Properties Act, 1960 (hereinafter to be referred as Waqf Properties Act, 1960), hence, is not entertainable. The other grounds of reference were also refuted. The learned trial Court framed the necessary issues in light of the pleadings of the parties and ordered them to lead evidence in support of their respective claim. At the conclusion of the proceedings, the learned trial Court vide judgment and decree dated 29.05.2013, accepted the reference and declared the notification dated 31.07.2001 as null and void.
The petitioners, herein, felt aggrieved from the judgment and decree dated 29.05.2013, passed by the District Judge/Reference Judge Pallandri and challenged the same by way of appeal before the Azad Jammu and Kashmir High Court, on 29.12.2018. After hearing the parties, the learned High Court through the impugned judgment dated 29.12.2018, has dismissed the appeal for non- impleadment of the necessary party. Hence, this appeal by leave of the Court.
3. At the very outset, Mr. Sajid Hussain Abbasi, Advocate, the learned counsel for the appellants, has raised a preliminary objection that the respondents, herein, challenged the notification dated 31.05.2001, along with mutation of khewat No. 255, measuring 52 kanal, 12 marla, through a reference application before the Reference Judge, Pallandri, whereas, the learned District Judge/Reference Judge, Pallandri has no jurisdiction to entertain such type of reference application. He further argued that the judgment and decree passed by the Reference Judge and the judgment of the High Court are against law and the facts of the case as both the Courts below failed to appreciate the law in its true perspective. He further contended that the Reference Judge can only entertain the reference applications for enhancement of the compensation of the awarded land. According to the learned counsel' the Reference Judge, Pallandri without lawful authority has accepted the reference application and set aside the notification dated 31.05.2001. He strenuously argued that the learned High Court while deciding the appeal has also not taken into consideration this important aspect of the case, therefore, the judgments passed by the Courts below are liable to be set aside on this sole ground. He contended that the Courts below have failed to appreciate that the land in dispute is a waqaf property and the same cannot be allotted to any person. The learned counsel lastly submitted that it is the duty of the Court to first consider the point of jurisdiction before further proceedings in the matter but the learned Reference Judge, Pallandri, failed to consider this important aspect of the case. According to the learned counsel the instant appeal is liable to be set at naught.
4. On the other hand, Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for the respondents, while controverting the arguments advanced by the learned counsel for the appellants, argued that the learned Reference Judge has decided the application in the capacity of District Judge as mentioned in section 7 of the Waqf Properties Act, 1960 and has not decided the same under section 18 of the Land Acquisition Act, 1894. According to the learned counsel the learned Judge of the High Court has rightly dismissed the appeal filed on behalf of the appellants.
He further argued that the appellants failed to point out any illegality in the impugned judgment passed by the learned High Court. He contended that the learned High Court has dismissed the appeal of the appellants on the ground of non-impleadment of the necessary party in the memo of appeal, hence, the judgment of the High Court is liable to be upheld. According to the learned counsel the land in dispute is in the ownership of the respondents and they have constructed the houses upon the said land. Lastly, the learned counsel explained that the appeal of the appellants, herein, has no legal substance and the same is liable to be dismissed with costs.
5. We have heard the learned counsel for the parties and perused the record with utmost care. We now come to the preliminary objection raised by the learned counsel for the appellants that whether the learned Reference Judge was lawfully competent or having the jurisdiction under section 7 of the Waqf Properties Act, 1960, to entertain a reference application or not. To resolve the controversy involved in this appeal, it would be advantageous to reproduce the relevant sections Nos.6 and 7 of the Waqf Properties Act, 1960 which reads as under:- "6. Administrator may take over Waqf property by notification:- Notwithstanding anything contained in Section 22 of the Religious Endowments Act, 1863, the Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqaf property.
7. Petition to District Court against notification:- (1) Any person claiming any interest in any Waqf property in respect of which a notification has been issued under the last preceding Section may, within thirty days of the publication of such notification, petition to the District Court within whose jurisdiction a part of the Waqf property is situated for a declaration;
(a) that the property is not Waqf property;
(b) that the property is Waqf property within the limits stated in the petition.
(2) The District Court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination, or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay."
After going through the above quoted provisions, it reveals that the Administrator of Waqfs by issuing notification may take over and assume the administration, control, management and maintenance of a Waqf property. If any person claiming any interest in any Waqf property in respect of which a notification has been issued, he may file the petition within thirty days of the publication of such notification to the District Court/District Judge, meaning thereby the petition under section 7 of the Waqf Properties Act, 1960, can only be filed before the learned District Judge not before the Reference Judge for any controversy or dispute regarding the waqf property.
6. It is also to be noticed here that the title of the reference application and the judgment of the Reference Judge dated 29.05.2013 are very much clear that the reference application is not a petition under section 7 of the Waqf Properties Act, 1960. The learned Reference Judge has also passed the judgment in the capacity of Reference Judge not as District Judge. So, it can safely be said that it is not a mere case of wrong pleadings or nomenclature of the Court. As mentioned earlier, the learned Reference Judge has not been conferred with the power to adjudicate any reference application in the capacity of Reference Judge in relation to any controversy regarding Waqf Property. So, we unanimously reached at the conclusion that the learned Reference Judge has wrongly assumed the jurisdiction upon the reference application being Reference Judge.
Consequently, the preliminary objection raised by the learned counsel for the appellants having legal substance resolved in the terms as indicated above.
7. Now, we would like to dilate upon another aspect of the case that the learned District Judge, Pallandri has conducted all the proceedings of the case. i.e., framing of issues, recording of evidence, hearing of arguments and delivering of judgment in the light of the provision/content of the Land Acquisition Act, 1894, in the capacity of Reference Judge. So, it would create a great anomaly in the proceedings of the case if we let intact all the referred proceedings taken in the capacity as Reference Judge and merely set aside the judgment then it would create another legal flaw. Resultantly, all the proceedings are hereby declared mull and void and the same stand vitiated, therefore, being the apex Court of the St Me and the Court of the last resort, we left with no other option except to treat the reference application filed before the Reference Judge/District Judge, Pallandri, as the petition under section 7(1) of the Waqf Properties Act, 1960.
In view of the above observations, the / case is remanded to the learned District Judge, Pallandri with the direction to conduct denovo trial after seeking the objection from the rival party in accordance with the provision of the Waqf Properties Act, 1960, along with other respective laws after giving a fair opportunity of hearing to the contesting parties expeditiously. No order as to costs.