Govt Notifications That Create, Extinguish Rights Should Be Published In Govt Gazette Unlike Those Declaring Existing Facts: J&K High Court

A bench of Justice Javed Iqbal Wani was hearing a petition challenging the takeover of a religious site Ziyarat Sharief Syed Khazir Sahab by the Jammu and Kashmir Wakaf Board. 

"A distinction has to be drawn here between a notification required to be published in the Government Gazette that creates or extinguishes a right or liability and the one requiring furnishing of an information to the public about an existing fact, while in the former case the publication of a notification in the Government Gazette may be mandatory, whereas in the later case it can safely said to be directory in nature".

The petitioner had questioned the legality of an order issued by the Wakaf Board directing the takeover of the Ziyarat and its allied properties by the Board under Sections 67, 68, and 69 of the Waqf Act, 1995. The petitioner contended that the Ziyarat and the land beneath it were proprietary, not donated to any Wakaf or Ziyarat, and were only intended for charitable purposes.

Additionally, the petitioner challenged another order issued by the Board which declared the Board's control and management over all Shrines/Ziyarats and their assets/properties in the Union Territory of Jammu and Kashmir.

After careful examination, Justice Wani noted that the Ziyarat had been declared a Wakaf property in 1985 under the Jammu and Kashmir Wakaf Act, 1978 and the government had issued SRO 510 on December 11, 1985, confirming this declaration.

The Court emphasized that the decision of the Special Officer under Section 5 of the Act of 1978 had assumed finality, providing a remedy for appeal to any aggrieved party within 60 days from the date of the order.

Highlighting Section 6 of the Act which requires the Government to publish a list of the Wakafs in the Government Gazette, the bench explained that the said Section served as a means to inform the public about the existing fact that a property had been declared a Wakaf property by the Special Officer.

However, the arrangement of Section 6 of the publication of the lists of Wakafs had only an evidentiary value to notify the public and all concerned that a decision has been rendered qua a property being Wakaf property under the Act of 1978, the bench clarified.

Spotlighting the difference in government notifications that create or extinguish rights and liabilities must be published in the Government Gazette with notifications informing the public about existing facts are considered directory in nature, the bench observed,

"In the instant case publication of a notification in the Government Gazette had not by itself created or extinguished a right or liability but only would have to be stated and narrated an existing fact that a particular property has been declared as Wakaf property by the Special Officer and failure to publish such a notification in the Government Gazette would not thus said to be denuding or changing the nature, status and character of the property declared as a Wakaf property by the Special Officer under Section 5 of the Act of 1978".

The Court further cited Section 112(3) of the Waqf Act, 1995, which indicated that actions taken under the Act of 1978, 2001, or 2004 were deemed to have been taken under the Waqf Act of 1995 when it was extended to the Union Territory of Jammu and Kashmir.

With these observations, the Court dismissed the petition, affirming the legality of the Jammu and Kashmir Wakaf Board's actions. The contempt notices were recalled, proceedings were dropped, and the petition was disposed of.

Case Title: Intizamiya Committee Dargah and Anr v. Union Territory of J&K and Ors.

Citation: 2023 LiveLaw (JKL) 247

Counsel For Petitioner: Mr Jehangir Iqbal Ganai, Sr. Advocate with Mr R. A. Bhat, Advocate.

Case No: WP(C) No. 1044/2023 c/w CCP(S) No. 181/2023

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