1. This is defendant's second appeal in a suit filed by the plaintiff for an injunction restraining the defendant appellant from evicting him i. e. the
plaintifftenant. The present suit has arisen in the following circumstances:
2. The plaintiff brought a suit in the court of Sub Registrar, Munsiff, Jammu, on the allegation that he was in possession of the property in question
which consists of 3 marlas and 2 sarsaies of land over which the plaintiff had constructed a house. By virtue of an order passed by the Auqaf
Committee under Section 44 of the Jammu and Kashmir Muslim Wakafs Act, 1959 (hereinafter referred to as 'the Act') the plaintiff was directed
to be evicted from the premises. The plaintiff filed an appeal before the District Judge, Jammu against this final order and a compromise was
arrived at between the parties by which the plaintiff agreed to vacate the premises on 31761 and gave a statement in support of the compromise.
On the basis of the statement, a compromise decree was passed by the District Judge, on 30760. The plaintiff averred that in fact the property was
not a Wakaf property at all and therefore the Committee had no jurisdiction to evict him. It was also pleaded that the admission made by the
plaintiff before the District Judge was wrong on a point of fact and was made in ignorance of the rights of the pltff. The case was resisted by the
defendantAuqaf Committee who pleaded that the plaintiff was a tenant of the Committee having been inducted by the Committee on the land and
the plaintiff had constructed a house thereupon without the permission of the Committee. The defendant further averred that in fact by virtue of the
preliminary notice dated 22111959 the plaintiff was asked to show cause why he should not be evicted from the premises because his possession
was unlawful and unauthorised. The pltff. instead of showing cause to the Committee filed an appeal before the District Judge against this
preliminary notice which was however dismissed by the District Judge on 18121959 as being premature. Thereafter the committee continued its
proceedings and sent a final notice D/621960 after hearing the plaintiff, directing the plaintiff to vacate the premises. This notice culminated in the
final order directing the plaintiff to vacate. Thereafter the pltff. filed an appeal before the District Judge against the order of eviction which was
compromised on 30th July 1960 wherein the plaintiff admitted in tacit terms that he was the tenant of the defendant and he would vacate the
premises by end of July 1961. Subsequently an application under S.148 for extension of time was given by the plaintiff to the District Judge which
was also dismissed on 1181961. Thus having found himself unable to remain in possession of the premises, the plaintiff appears to have taken the
aid of the Civil Court by filing a most ordinary type of a suit. In the present suit which was filed on 1281961 the plaintiff prayed that the order of
the Committee was without jurisdiction and that his admission before the District Judge could not be relied upon as it was made in ignorance of the
real facts. The suit was decreed by the Munsiff on 1831969 and the District Judge also dismissed the appeal of the defendant on 20121969.
Thereafter the defendant has come up in second appeal to this court and when the case was heard by me, I by my order dated 26111970 remitted
the case to the trial court for giving a finding on two issues namely:
i) Whether the admission made by the plaintiff before the District Judge leading to the consent order dated 3071960 was obtained by undue
influence and duress practised by the defendant or the Police?
ii) Whether the aforesaid admission was made in ignorance of the right of the defendant?
I further ordered that the finding of the Munsiff should come through the District Judge who will also give his opinion. A third issue was also framed
by me and was remitted to the court below which related to the validity of the notice under Section 44 of the Act. Both the courts below have
concurrently found in their reports that the admission made by the plaintiff was not made under undue influence and duress but was a voluntary
one. It has also been found by them that the admission made by the pltff. resulting in the decree for eviction, was not made in ignorance of the
rights of the defendants.
3. On the question of the validity of the notice, however it was held that in view of the decision of the Supreme Court in Northern India Caterers
(P) Ltd. v. State of Punjab reported in AIR 1967 SC 1581 provisions of Sections 43 and 44 of the Act were ultra vires. The appeal has now been
placed before me for hearing and only two points have been argued before me by counsel for the respondentplaintiff. The reports of the courts
below containing the findings of fact have not been challenged before me and therefore it must be held that the decree passed by the District Judge
on 3071960 was a legal valid decree and was rightly passed on the admission of the plaintiff. It would also appear that if the admission was
voluntary then it was established that the property in question was Wakaf property and the plaintiff was a tenant of the defendant.
4. Mr. V.S. Malhotra appearing for the respondent however submitted that in view of the decision of the Supreme Court in AIR 1967 SC 1581
(supra) which has not been overruled by the Supreme Court in its recent decision in M. Chhagganlal v. Greater Bombay Municipality reported in
AIR 1974 SC 2009, the findings of the District Judge that Sections 43 and 44 of the Act are ultra vires as being violative of Article 14 of the
Constitution of India must stand. Secondly it was argued that even if Sections 43 and 44 are constitutionally valid, then in view of the finding of the
courts below, the order of eviction passed by the Committee would be washed out and fresh notice would be required to be given to the pltff. by
the Committee for eviction. I would first examine the argument relating to the constitutionality of Sections 43 and 44 of the Act in the light of the
latest decisions of the Supreme Court in M. Chhagganlal's case.
5. Before however analysing this decision it may be necessary to examine the scheme and the provisions of the Jammu and Kashmir Muslim Wakfs
Act, 1959. To begin with the Act clearly states in its preamble that it is an Act to provide for the better administration and the supervision of
Muslim Wakfs. It would appear that in all the States the legislature has passed acts for the proper and better administration of Muslim Wakfs
which under the Mohammedan Law have been held to be charitable endowments. In fact the Parliament has now consolidated the Wakafs and has
passed one statute which governs all the wakafs in India. In the State also there are huge properties which lie within the administrative control of
various Auqafs and it is only necessary in the interests of justice and preservation of charitable trusts that a proper scheme should be devised for
the administration of the Wakf properties. It was therefore considered necessary in the betterment of the Wakaf properties that a special
committee be constituted and special powers have been conferred on this Committee to protect the Wakaf properties from being misused by
unlawful occupants or trespassers, who may try to put forward hostile title and destroy the purpose of the Wakf itself. Consistent with this object in
view, the Act was passed by the State legislature on 4th May 1959 and is called the Jammu and Kashmir Muslim Wakfs Act, 1959, being Act
No. X of 1959. The preamble therefore contains in very clear and specific terms the guidelines and the purpose which has led to the conferment of
various powers on the Auqaf Committee which is constituted under Section 9 of the Act. Furthermore, it would appear that the Committee to be
appointed by the Government under Section 9 of the Act is a very high powered Committee and consists of not only legal experts but also eminent
persons from public life such as financial experts, administrative experts, Mutwallis and Nishan Dehanda. In this connection Section 9 may be
quoted here:.
9. Appointment of members. The members of the committee shall be appointed by the Government by notification in the Government Gazette
from any one or more of the following categories of persons, namely;
(a) members of the State Legislature and members of the Parliament of India from the State;
(b) persons having special knowledge of the Muslim law;
(c) persons having special knowledge of the administration, Finance or law;
(d) Mutwallis of the Wakafs situated within the area; and
(e) Nishan Dehanda, if any, of any Dargah;
Provided that in no case shall more than one Mutwalli, Nishan Dehanda be appointed to a Committee.
It is, therefore, clear that the Committee consists of persons chosen from various strata of society and representing different shades of life who are
expected to bear upon an independent and objective approach in the proper administration of the Wakf properties. It will also be noticed that
Section 11 of the Act disqualifies the following persons from becoming members of the committee:
a) if he is not a Muslim;
b) if he is less than 21 years of age;
c) if he is found to be a person of unsound mind;
d) if he is an undischarged insolvent;
e) if he has on any previous occasion been removed from the office of a member or has been removed by the order of the competent Court from
any position of trust either for the mismanagement or other misconduct;
f) if he has been convicted of any offence under this Act; or
g) if he is otherwise illreputed or of a bad character or is a habitual offender or is a receiver of a stolen property.
Thus precaution has been taken by the legislature to see that the Committee consists of reasonable set of persons who do not suffer from any
mental infirmity or who are not otherwise ill reputed, habitual offenders etc. Section 13 of the Act describes the functions of the Committee. So far
as the present case is concerned, we need only refer to the provisions of Sections 43 which is the provision relating to ejectment of an unauthorised
or unlawful occupant. Sections 43 and 44 of the Act may be quoted here:
43. (1) If the Committee is of opinion that any person is in unauthorised occupation of any wakaf property and that he should be evicted, the
Committee shall issue in the manner hereinafter provided a notice in writing calling upon that person to show cause why an order of eviction should
not be made.
(2) The notice shall:
a) specify the grounds on which the order of eviction is proposed to be made; and
b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the wakaf property to show
cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than ten days from the date of
issue thereof
(3) The Committee shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the wakaf
property, and in such other manner as may be prescribed, whereupon the notice shall be deemed to have been duly given to all persons
concerned.
44. (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 43 and any evidence he may produce in
support of the same and after giving him a reasonable opportunity of being heard, the Committee is satisfied that the wakaf property is in
unauthorised occupation, the Committee may, on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein,
directing that the wakaf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the
order to be affixed on the outer door or some other conspicuous part of the wakaf property.
(2) If any person refuses or fails to comply with the order of eviction within fortyfive days of the date of its publication under subsection (1), the
Committee or any Officer duly authorised by the Committee in this behalf may evict that person from, and take possession of the wakaf property
and may, for that purpose, call upon the OfficerinCharge Police Station of the area to render assistance in evicting that person.
6. An analysis of Sections 43 and 44 of the Act would show that the power vested in the Committee is not uncanalized or arbitrary one but is a
controlled one. In the first place the Committee must come to a tentative opinion before proceeding under Section 43 of the Act that any person is
an unauthorised occupant. Such tentative opinion may be base on a report or information which is before the Committee. Thereafter the
Committee has to issue a notice in the manner prescribed to the unauthorised occupant to show cause why an order of eviction should not be
made. The statute also provides that notice must contain the grounds on which the order of eviction is proposed to be made so as to give sufficient
notice to the unauthorised occupant to defend his case. Clause (3) of Section 43 also states that the notice must also be served by being pasted on
the conspicuous part of the Wakaf property so as to make the notice effective. Section 44 clause (1) provides that after considering the cause
shown by the unauthorised occupant and taking evidence and giving reasonable opportunity to the occupant to defend himself, if the committee is
satisfied that the occupation of the person is unauthorised then it may pass the order of eviction. Here also the legislature has acted with great
caution. Subsection (2) of Section 44 provides that if after the occupant defies the order of eviction within 45 days of its publication, then only he
would be evicted by the Committee through the agency of the police. It would thus be seen that the legislature has taken all possible, precautions
against any injustice being caused to any such person and the two sections i. e. Sections 43 and 44 contain all the important indicia and rules of
natural justice. Not only this, but under Section 48 appeal lies from any order passed by the Committee under Section 44 i. e. the order of eviction
to a District Judge, who is undoubtedly a very senior judicial officer so that the District Judge may examine the decision of the Committee in an
objective manner. Neither before the District Judge nor before the Committee is there any provision in the statute which bars the unauthorised
occupant from being defended through a lawyer. Finally S.49 of the Act runs thus:
49. Every order made by the District Judge under this Act shall be final and shall not be called in question in any original suit, application, or
execution proceedings.
This section clearly makes any order passed by the District Judge final and the jurisdiction of the Civil Court is ousted.
7. Mr. Malhotra submitted however that under Section 13 (2) (i) the Committee has been conferred with the powers to institute and defend
proceedings in a court of law relating to Wakf property and therefore the Committee has a discretion to proceed against the unauthorised occupant
either according to the provisions of Sections 43 and 44 or to institute a suit against him in a Court. These two remedies being purely selective are
discriminatory so as to attract Article 14 of the Constitution of India.
8. In the first place the argument is totally misconceived. The scope of Sections 43 and 44 and that of Section 13 (2) (i) are entirely different.
Sections 43 and 44 deal specifically with the cases of unauthorised occupants whereas Section 13 (2) (i) deal with only the functions of the
Committee in protecting and defending the Wakf property. When the Committee has been armed with specific powers to deal with a particular
situation, there is no reason to suppose that it should abnegate its functions and proceed under Section 13 (2) (i) of the Act. Thus on this ground
alone this case is clearly distinguishable from the case of the Supreme Court in AIR 1967 SC 1581. Nevertheless Northern India Caterers case
was fully considered by the Supreme Court in the Chhagganlal's case (reported in AIR 1974 SC 2009) where the law laid down by their
Lordships in the Northern India Caterers case (AIR 1967 SC 1581) has not been accepted as correct law though the Northern India Caterers
case has not teen specifically overruled by the later decision of the Supreme Court. The judgment written by Alagiriswami, J. who spoke for A.N.
Ray, Chief Justice, Palekar and Mathew, JJ. and for himself observed as follows:
Where a statute providing for a more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary
procedure as in Anwar Ali Sarkar's case 1952 SCR 284 : (AIR 1952 SC 75) and Suraj Mall Mohta's case (1955) 1 SCR 448 : (AIR 1954 SC
545) without any guideline as to the class of cases in which either procedure is to be resorted to, the statute will be hit by Article 14. Even there, as
mentioned in Suraj Mall Mohta's case, a provision for appeal may cure the defect. Further, in such cases if from the preamble and surrounding
circumstances as well as the provisions of the statute themselves explained and amplified by affidavits, necessary guidelines could be inferred as in
Saurashtra case 1952 SCR 435 : (AIR 1952 SC 123) and Jyoti Prashad's case (1962) 2 SCR 125 : (AIR 1961 SC 1602) the statute will not be
hit by Art.14 ...............
.......... This is sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes
one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the
ordinary civil court. Even normally one cannot imagine an officer having choice, of two procedures, one which enables him to get possession of the
property quickly and the other which would be prolonged one, to resort to the latter. Administrative officers, no less than the courts, do not
function in a vacuum. It would be extremely unreal to hold that an administrative officer would in taking proceedings for eviction of unauthorised
occupants of Government property or Municipal property resort to the procedure prescribed by the two Acts in one case and to the ordinary Civil
Court in the other. The provisions of these two Acts cannot be struck down in the fanciful theory that power would be exercised in such an
unrealistic fashion.
x x x x x
...........On the whole, considering the object with which these special procedures were enacted by the legislature we would not be prepared to
hold that the difference between the two procedures is so unconscionable as to attract the vice of discrimination. After all Article 14 does not
demand a fanatical approach. We, therefore, hold that neither the provisions of Chapter VA of the Bombay Municipal Corporation Act nor the
provisions of the Bombay Government Premises (Eviction) Act, 1955 are hit by Art.14 of the Constitution.
9. In making this observation their Lordships clearly expressed their disagreement with the majority view in Northern India Caterers' case (AIR
1967 SC 1581) and observed as follows:
............. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised
occupants of Government and Corporation Property and provided a special speedy procedure therefor is a clear guidance for the authorities
charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India
Caterers' case (1967) 3 SCR 399 : (AIR 1967 SC 1581).
10. Similarly Bhagwati, J. speaking for himself and V.R. Krishna Iyer, J. observed as follows:
............... The legislature can, therefore, do no more than define broad categories and indicate the policy and purpose underlying the legislation
and leave it to a stated authority to make selective application of the law in accordance with such policy and purpose. That would not be
obnoxious to Article 14 because in such a case the discretion to make the selection would be a guided and controlled discretion and not an
absolute and unfettered one.
x x x x x
......... We are of the view that the decision in (1967) 3 SCR 399 : (AIR 1967 1581) does not represent the correct law and must be overruled.
x x x x x
............... What the equality clause is intended to strike at are real and substantial disparities substantive or processual and arbitrary
or capricious actions of the executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions,
shades of harshness and the theoretical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to Article 14
must be informed by a sense of perspective and proportion based on robust understanding and rejection of overrefined distinctions. The whole
dimension of protection against discrimination in the processual sphere relates to real and substantial disparities in procedures. What is necessary to
attract the inhibition of Article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and
substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human
instruments are bound to exist when two procedures are prescribed.
........... We may also observe that there is no magic formula by which it can be said that one procedure is substantially more drastic and onerous
than the other. It does not follow that merely because one procedure provides the forum of a civil court while the other provides the forum of an
administrative tribunal, the latter is necessarily more drastic and onerous than the former. We cannot accept such a bald proposition. Indeed, not
infrequently, the poor man gets lost when he is drawn into a regular suit in a civil court which, it is well known, has a long drawn out expensive and
escalating litigative system which often spells ruin to the ordinary man, and, consequently, by contrast, a prompt and inexpensive instrument, though
manned by administrative personnel untrained in the sophisticated court methodology and unaided by long and intricate argument of counsel
engaged on onerous terms, may be preferred by many in this country. The procedure of the civil court also suffers from many technicalities.
.......... We must cast aside our predilection for the existing system of administration of justice which has prevailed over a long period of time and
examine the special machinery set up by the legislature objectively and dispassionately, without any preconceived notion or prejudice against it, and
find out whether the special machinery is really and substantially more drastic and prejudicial than the age old machinery of Civil Court.
............. The determination of the liability to eviction would, therefore, really in practice be made by a Municipal Officer having proper and
adequate legal training. Then again, the occupant against whom the special procedure is set in motion would have a right to file his written statement
and produce documents and he would also be entitled to examine and crossexamine witnesses. The Municipal Commissioner or other officer
holding the inquiry is given the power to summon and enforce the attendance of witnesses and examine them on oath and also require the discovery
and production of documents. The occupant is also entitled to appear at the inquiry by advocate, attorney or pleader. Thus, in effect and substance
the same procedure which is followed in a Civil Court is made available in the proceedings before the Municipal Commissioner or other officer
holding the inquiry. Then there is also a right of appeal against the decision of the Municipal Commissioner or other officer and this right of appeal
is to a senior and highly experienced judicial officer and not to a mere executive authority.
11. In view of the observations of the Supreme Court quoted above, the ratio and the propositions that emerge from the decisions of the Supreme
Court may be summarized as follows:
(a) That the mere fact that the power conferred by a statute on an authority is selective and is exposed to two remedies (i) to proceed in a civil suit,
and (ii) to resort to drastic procedure provided by the Act, is not by itself sufficient to attract Article 14 of the Constitution of India if the preamble
of the Act contains sufficient guidelines and the order passed under the Act is subject to an appeal.
(b) Merely because two remedies are left to the discretion of an authority, it is not reasonable to infer that the authority would take recourse to long
drawn procedure of a civil suit in preference to a short and effective remedy provided by the Act. It will be extremely fanciful to imagine that the
authority should resort to artificial course of choosing the protracted proceedings unless the needs of the situation so demand in view of the
complexities of the questions involved.
(c) That there is no special charm contained in the procedure of the civil court and in the growing needs of the modern times if the procedure
provided by an Act is reasonable and effective, so as to give sufficient opportunity to the aggrieved party to prove its case and incorporates rules
of natural justice that is not discriminatory and can be preferred to the procedure of the civil court.
(d) That the majority view taken in the Northern India Caterers case (AIR 1967 SC 1581) was not correct and the majority of the Judges of the
Supreme Court in Chhagganlal's case (AIR 1974 SC 2009) have expressed their dissent from the same.
12. In view of these propositions adumbrated by their Lordships in their recent judgment in Chhagganlal's case (AIR 1974 SC 2009) it is difficult
to accept the argument of Mr. Malhotra that Sections 43 and 44 of the Act are violative of Article 14 of the Constitution of India. In fact I find that
Sections 43 and 44 contain procedure which is almost as effective and as exhaustive as that of a Civil Court. An occupant is given full and
complete opportunity to defend himself and appeal is also provided against the order of the Committee to the District Judge, and the appellate
order has been made final and cannot be questioned in any civil suit. In these circumstances, therefore, it can hardly be argued with any show of
force that Article 14 of the Constitution of India is attracted to this case. For these reasons therefore, I hold that Sections 43 and 44 of the Act are
constitutionally valid and are not violative of Article 14 of the Constitution of India. The first contention raised by Mr. Malhotra is overruled.
13. As regards the second point, the contention is to be stated only to be rejected. It is the admitted case of the parties that the preliminary notice
was issued to the plaintiff for vacating the premises and instead of filing the show cause, he filed an appeal to the District Judge which was
dismissed on 18121959 as being premature. Thereafter the second notice was issued on 621960 directing the plaintiff to vacate the premises and
against that order the plaintiff went in appeal to the District Judge. Before the District Judge the parties compromised and the plaintiff agreed to
vacate the premises within a month and the appeal was accordingly disposed of in terms of the compromise arrived at by the parties. Thereafter
the plaintiff took a most extraordinary and ingenious course of filing a civil suit, thus delaying the eviction by the Committee for a period of more
than 13 years. Having done so, the plaintiff cannot be heard to say that if the order of the District Judge is valid the status quoante should be
restored and fresh proceedings for eviction should be taken. If the order of the District Judge was valid in law as has been found by the courts
below after the case was remitted to them by me, then the order of eviction passed by the Committee has merged in the order of the District Judge
which is final and binding on the parties and cannot be challenged in any Civil Court by virtue of Section 49 of the Act. In these circumstances,
therefore, the plaintiff has got no claim to remain in possession of the premises. For these reasons the second contention is also rejected.
14. The result is that the appeal is allowed and the judgments and decrees below are hereby set aside, and the suit of the plaintiff is dismissed with
costs throughout.
15. Prayer for leave to appeal under letters patent was made by the learned counsel for the plaintiff respondent, which is refused because the
matter is completely concluded by the decision of the Supreme Court in Chhagganlal's case AIR 1974 SC 2009 and the report containing the
findings of fact given by the two courts below.
