Jammu & Kashmir High Court
Syed Lutfullah Shah And Anr vs A.W. Kirpak Supdt. Engineer on 2 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 97/1979
c/w
OWP No. 441/2013
Reserved on: 26.02.2026
Pronounced on : 02.04.2026
Uploaded on : 02.04.2026
Whether the operative part or full
judgment is pronounced: Full
Syed Lutfullah Shah and Anr
....Petitioners
Through:- Mr. Altaf Haqani, Sr. Advocate vice
Mr. Aasif Wani, Advocate
(through virtual mode)
Mr. Dinesh Singh Chauhan, Advocate
with Ms. Damini Chauhan, Advocate.
V/s
A.W. Kirpak Supdt. Engineer
& Ors.
.....Respondents
Through:- Mr. P.N. Raina, Sr. Advocate with
Mr. J.A. Hamal, Advocate.
Mr. A.A. Hamal, Advocate
Mr. Ayjaz Lone, Advocate.
\
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
01. The subject matter of the afore-titled two writ
petitions is the dispute relating to management and
entitlement to the properties pertaining to Ziarat Farid-ud-Din
OWP Nos. 97/1979 & 441/2013 Page 1 of 36
Sahib and Ziarat Assrar-ud-Din Sahib situated in Kishtwar.
The litigation in this regard has a long chequered history,
which was initiated before this Court in the year 1979 by
institution of writ petition-OWP No. 97 of 1979 by the writ
petitioners, who claim to be Sajjada Nasheens of the aforesaid
two shrines. They also lay claim to the properties attached to
the aforesaid two shrines. The writ petition was decided by
this Court by virtue of judgment dated 10.09.1998 whereby
the claim of the writ petitioners was rejected. The judgment
passed by this Court was challenged by the writ petitioners by
way of an LPA bearing LPA(OW) No. 283/1998, which came to
be dismissed by the Division Bench of this Court in terms of
judgment dated 30.05.2003. The writ petitioners challenged
the said judgment before the Supreme Court by way of Civil
Appeal No. 65 of 2006. The writ petitioners also filed a petition
under Article 32 of the Constitution of India before the
Supreme Court of India bearing Writ petition (Civil) No. 633 of
2004 whereby they laid challenge to the vires of the provisions
contained in Jammu and Kashmir Wakafs Act, 1978
(hereinafter to be referred to as “Act of 1978”) and Jammu
and Kashmir Wakafs Act, 2001 (hereinafter to be referred to as
“Act of 2001”).
02. The civil appeal and the aforesaid writ petition were
clubbed together and disposed of by the Supreme Court in
OWP Nos. 97/1979 & 441/2013 Page 2 of 36
terms of order dated 28.02.2013. A consensual order came to
be passed by the Supreme Court and both the cases were
disposed of in the following terms:
(i) The order dated May 30, 2003 passed by the Division Bench
and orders dated September 10, 1998 and February 10, 2000
passed by the learned Single Judge of the High Court are set
aside.
(ii) Writ Petition being Writ Petition No. 97 of 1979 is restored to
the file of the High Court for fresh consideration and decision
after hearing the parties in accordance with law. The
petitioners shall be at liberty to file additional
documents/additional affidavit in support of the Writ Petition. It
will be open to the respondent to file additional counter
affidavit with additional documents.
(iii) Writ Petition (Civil) No. 633 of 2004 filed before this Court is
transferred to the Jammu & Kashmir High Court. The Registry
shall send the paper books of the Writ Petition along with
annexures to the Registry of the Jammu & Kashmir High Court,
which will register the said Writ Petition on the record of the
High Court.
(iv) The interim order dated January 2, 2006 passed by this Court
shall remain operative until the decision by the learned Single
Judge of the High Court on the above two Writ Petitions and for
a further period of three months thereafter.
03. In view of the aforesaid order of the Supreme Court,
the matter again landed before this Court for its fresh decision
on merits. The writ petition filed by the petitioners before the
Supreme Court came to be registered as OWP No. 441/2013.
It appears that during pendency of the writ petitions, efforts
were made by the parties to settle the matter amicably and in
this regard, an application CM No. 908/2026 came to be filed
OWP Nos. 97/1979 & 441/2013 Page 3 of 36
by the petitioners to place on record a copy of agreement
stated to have been executed between the petitioners and the
respondent-Wakaf Board, which is dated 19.08.2003.
However, during the course of arguments, learned counsel for
the respondents submitted that the agreement is not
acceptable to the respondent-Wakaf Board. He has placed on
record a communication dated 24.02.2026 whereby the
respondent-Wakaf Board has rejected the compromise
agreement dated 19.08.2023 and it has been decided to get the
writ petitions determined on their merits. It is in these
circumstances that the present petitions are being taken up
for their final determination on merits.
OWP No. 97 of 1979
04. Before narrating the case set up by the petitioners
in the aforesaid writ petition, it would be necessary to narrate
a brief background of the history of the two shrines viz, Ziarat
Farid-ud-Din Sahib and Ziarat Assrar-ud-Din Sahib. Prior to
the annexation of Kishtwar and its merger with erstwhile state
of J&K by Maharaja Gulab Singh in 1821 A.D, Kishtwar was
an independent state. Somewhere in the year 1681 A.D, Raja
Kirat Singh, who was the monarch of Independent State of
Kishtwar, converted to Islam. Prior to that, Shah Farid-ud-Din
Sahib, a saint, came to Kashmir somewhere in 1664 AD. He is
OWP Nos. 97/1979 & 441/2013 Page 4 of 36
stated to have passed away in the year 1725 AD at the age of
99 years. His elder son, namely, Shah Assrar-ud-Din Sahib,
who was also a saint, is stated to have died in the year 1685
AD. Two separate mausoleums came to be built over the
graves of these two saints, which came to be known as the
Ziarats of Shah Farid-ud-Din Sahib and Shah Assrar-ud-Din
Sahib. These two ziarats are being visted by thousands of
devotees from all over the Union Territory especially on death
anniversary of these two saints, which fall on 7th Har and 25th
Kartak every year. Urs of Shah Assrar-ud-Din Sahib is a
public holiday for the districts of Kishtwar, Doda and Ramban
on account of reverence of the two saints, which is being paid
to them by the people of these districts.
05. As per case of the writ petitioners, petitioner No. 1
including other members of his family are Sajjadu Nasheens of
Ziarat of Shah Farid-ud-Din Sahib whereas, petitioners No. 2
and 3, who happen to be the legal heirs of original petitioner
No. 2-Peer Nizam-ud-Din along with their other family
members are Sajjadu Nasheens of Ziarat Shah Assrar-ud-Din
Sahib situated at Kishtwar. It is case of the petitioners that
right of Sajjadu Nasheen is their hereditary right and that both
these ziarats are their exclusive properties. It has been
contended that the petitioners have exclusive right of collection
of offerings or Nazur-u-Nayaz and they are also responsible to
OWP Nos. 97/1979 & 441/2013 Page 5 of 36
maintain these two ziarats from their own incomes. According
to the petitioners, these two ziarats are not wakaf properties,
as such, cannot be governed by Wakafs Act because these
properties are personal properties of the petitioners, which
have devolved upon them from their forefathers.
06. It has been submitted that the Special Officer,
Auqaf appointed under Section 4(3) of J&K Muslim Wakaf Act,
1959 (hereinafter to be referred to as “Act of 1959”) in his
report dated 09.08.1969 has categorically stated that both the
aforesaid ziarats are being maintained by Sajjadu Nasheens,
who have got hereditary rights and that these Sajjadu
Nasheens hold charge of both these ziarats independently for
the last 300 years. The Special Officer further reported that
these ziarats are separate and independent, which should
continue as such and that the committee to be appointed will
not have jurisdiction in the maintenance and other affairs of
these two ziarats, which are the sole properties of the
petitioners.
07. It has been submitted that after the repeal of Act of
1959, the Act of 1978 came into force on 09.05.1978 and the
Government dissolved the earlier committee and appointed
Deputy Commissioner, Doda to be the administrator of Wakafs
Committee. Subsequently, Deputy Commissioner, Doda was
removed and in his place original respondent No. 1-
OWP Nos. 97/1979 & 441/2013 Page 6 of 36
Superintending Engineer, Doda was appointed as the
Administrator of Tehsil Wakaf Committee. It has been
submitted that respondent No. 1, upon his appointment as
Administrator, started interfering with the rights of the
petitioners in the two ziarats by issuing two proclamations.
Vide one proclamation, public upon being informed about the
appointment of respondent No. 1 as Administrator, was asked
to obtain receipts in respect of donations to these two shrines
from the Administrator, thereby bringing these two ziarats
under the purview of Wakaf. It is case of the petitioners that
respondent No. 1 was not competent to issue such
proclamation. It has been submitted that during the pendency
of the writ petition, respondent No. 2 appointed respondent
No. 4 as the Special Officer in an illegal manner even though
the earlier Special Officer had already submitted his report,
which had become final.
08. It has been submitted that respondent No. 4-the
Special Officer, without issuing notice to the petitioners or
other interested persons and without hearing the petitioners,
rendered his report dated 05.08.1979, which according to the
petitioners, is factually incorrect and is not passed on any
documentary evidence. It has been contended that report of
the Special Officer, appointed under the Act of 1959, had
become final and binding between the parties and that the
OWP Nos. 97/1979 & 441/2013 Page 7 of 36
same could not be re-opened even after repeal of the Act of
1959 because in terms of Section 61 of the Act of 1978, any
action taken in exercise of power conferred under the repealed
Act is saved. It has been submitted that pursuant to report
dated 05.08.1979 of respondent No. 4, respondent No. 2
issued SRO 619 of 15.11.1979, declaring thereunder wakaf
properties situated at Kishtwar town, which includes the
aforesaid two shrines.
09. Upon coming to know about the report dated
05.08.1979 and SRO dated 15.11.1979, an appeal came to be
filed by the petitioners before respondent No. 3. The
petitioners also filed their written arguments before respondent
No. 3 but the appeal came to be dismissed by respondent No. 3
in terms of order dated 30.04.1982.
10. The petitioners have laid challenge to the report
dated 05.08.1979 of respondent No. 4, the notification bearing
SRO No. 619 of 15.11.1979 issued by respondent No. 2 and
the judgment dated 30.04.1982 passed by respondent No. 3
through the medium of the present writ petition. They have
also sought a direction upon the respondents not to interfere
in any manner whatsoever with the management, affairs,
collection of offerings and Nazar-u-Nayaz of the aforesaid two
ziarats by the petitioners and their family members as Sajjadu
Nasheens.
OWP Nos. 97/1979 & 441/2013 Page 8 of 36
11. For seeking the aforesaid reliefs, the petitioners
contend that the impugned report, notification and the
judgment passed by respondent No. 3 are illegal,
unconstitutional and malafide as the same is a result of
political vendetta. It has been contended that the impugned
documents are without jurisdiction because in the presence of
report of the Special Officer appointed under the Act of 1959,
which had become final, the respondents had no power to
conduct fresh enquiry from the Special Officer. It has been
submitted that in terms of Section 61 of the Act of 1978, the
report of Special Officer, appointed under the Act of 1959, is
saved and once the said report had become final, it was not
open to the respondents to appoint the new Special Officer for
the purpose of conducting enquiry.
12. It has been contended that the report of respondent
No. 4 is ex parte and the same has been made in an illegal and
arbitrary without issuing notice to the petitioners and without
holding any enquiry as envisaged under the provisions of Act
of 1978. It has been submitted that the impugned report,
issued by respondent No. 4, is factually incorrect and non-
speaking. It has been contended that the two ziarats cannot
be deemed as Wakaf properties under the Muslim law as no
dedication of the said properties has been made by the owner
of these properties, namely, Raja Kirat Singh. It has been
OWP Nos. 97/1979 & 441/2013 Page 9 of 36
contended that even otherwise, Raja Kirat Singh, who was a
Hindu, could not make dedication of properties for wakaf.
13. It has also been contended that Raja Kirat Singh,
Teg Singh and Zorawar Singh had executed „pattas‟ in respect
of the properties in question in favour of the ancestors of the
petitioners, as such, the same could not have been treated as
properties of the ziarats. It has been contended that the
respondents have failed to appreciate khilafatnama (Settlement
Deed) executed by Shah Akhyar Sahib, from a perusal of which
it is amply clear that ancestors of the petitioners were given
the proprietary rights over the land in question upon which
they have constructed their own houses. The same could not
be termed/declared as wakaf property. It has been contended
that respondent No. 3 has failed to appreciate the material on
record while passing the impugned judgment dated
30.04.1982.
14. The respondents have contested the writ petition by
filing their reply affidavit in which it has been submitted that
the document (Annexure-A) to the writ petition, whereby Shah
Akhyar-ud-Din Sahib, the brother of Shah Assrar-ud-Din
Sahib and son of Shah Farid-ud-Din Sahib Baghdadi had
appointed Hafiz Inayat Ullah, the predecessor-in-interest of
petitioner No. 2, as his Khalifa and successor, is not a genuine
document. It has been contended that the two ziarats have
OWP Nos. 97/1979 & 441/2013 Page 10 of 36
not devolved upon the petitioners and they can be described
only as Managers. It has been submitted that the copies of
jamabandis annexed to the writ petition clearly reflect that the
properties in question belong to the Ziarat and not to the
petitioners in their individual capacity. According to the
respondents, the khilafatnama does not confer any right upon
the predecessor-in-interest of the petitioners. The respondents
have also disputed the genuineness of patanama on which the
petitioners have placed reliance.
15. It is stand of the respondents that the two ziarats
are not exclusive property of the petitioners nor they have any
right to collect offerings and Nazar-u-Nayaz. It has been
submitted that the petitioners are liable to render accounts as
the offerings, which have been received by them in the past,
have not been used for public purpose but they have
appropriated the same for their personal use. It has been
submitted that in the year 1963-64 when the holy ziarat of
Shah Assrar-ud-Din Sahib got damaged due to fire,
Government of J&K donated an amount of Rs. 50,000/- and
an equal amount was donated by the public for its renovation.
16. Regarding the report of the Special Officer
appointed under the Act of 1959, it is the stand of the
respondents that the said report was never accepted by the
Government nor was it published in the Government gazette,
OWP Nos. 97/1979 & 441/2013 Page 11 of 36
therefore, it had not become final. It has been submitted that
the Special Officer, appointed under the Act of 1978, had given
ample opportunity to the petitioners to establish their claim. It
has been submitted that members of public were free to
approach the Special Officer and produce evidence and the
petitioners had knowledge about the same. According to the
respondents, the report of the Special Officer appointed under
the Act of 1978 was accepted by the Government. Accordingly
notification for inclusion of the two ziarats as wakaf properties
was issued. According to the respondents even without the
declaration, the two ziarats qualify to be wakaf property and
the declaration merely confirms the said fact. It has been
further submitted that the two ziarats are wakafs by user and
these were not created by any deed. It has been submitted
that in the year 1681 A.D., Raja Kirat Singh had converted to
Islam and the in the year 1687 A.D, emperor Aurangzeb
changed his name to Sadat Yar Khan. Thus, when the zirats
were built, Raja Kirat Singh had already converted to Islam.
17. The respondents have denied the existence and
authenticity of pattas alleged to have been executed by Raja
Kirat Singh, Raja Teg Singh and Raja Zorawer Singh. The
respondents have submitted that area of land measuring 37
kanals, which is claimed to the personal property by the
petitioners, is wakaf land and the same was erroneously gifted
OWP Nos. 97/1979 & 441/2013 Page 12 of 36
by one of the mohtamims in favour of his relative but the
mutation based on this gift deed was rejected by the revenue
authority. This shows that the said land is wakaf property.
18. The petitioners have filed rejoinder affidavit to the
writ petition in which they have reiterated the contentions
raised in the writ petition and they have also referred to
certain historical books written by Sh. Zia-ud-Din Zia, Sh.
Shiv Ji Dhar, Sh. Hasmat-ullah Khan and Sh. Syed Nizam
Din. According to the petitioners, these historical books
confirm the fact that the property annexed to the two ziarats
was gifted to the predecessor-in-interest of the petitioners by
the then ruler. It has been submitted that a piece of twenty
kanals of land on which the petitioners have personally built
houses/orchards was given in dowry by Raja Kirat Singh to his
grand-daughter, who was married to Hafiz Abdul Qasim, the
predecessor-in-interest of the petitioners and that the
nikahnama in this regard is available on record. This record
finds mention in the history of Kishtwar written by Syed
Nazam-ud-Din.
19. It is pertinent to mention here that after the case
was remanded by the Supreme Court for its fresh decision by
this Court, the petitioners placed on record additional
documents before this Court in the shape of copies of
historical books on which they have placed reliance. Besides
OWP Nos. 97/1979 & 441/2013 Page 13 of 36
this, the petitioners have also placed on record copy of
Khilafatnama, copy of gift deed allegedly executed by Raja
Kirat Singh and Teg Singh, copy of nikahnama of Mst. Zaib-
un-Nisa Begum, copy of Ahadnama executed by Raja Kirat
Singh in favour of Hafiz-ul-Qasim, copy of royal decree dated
22 Rabi-ul Saini (1094) (H), copy of royal decree of Aurangzeb
favouring Hafiz Annayatullah dated 24 Jamit-ur-Akhir 1123
Hijri and copy of Muafie.
20. I have heard learned Senior counsels appearing for
the parties and I have also gone through the material on
record.
21. The first contention that has been raised by the
petitioners to claim that the two ziarats and the properties
attached thereto cannot be termed as wakaf properties is that
there has been no dedication to the wakaf by the owner of
these properties viz, Raja Kirat Singh and if at all, the same
has been done because Raja Kirat Singh was not a muslim, he
could not have created a wakaf. To support their claim that
the ziarats and the properties attached thereto cannot be
termed as Wakaf, the petitioners have relied upon the
document (Annexure-A) to the writ petition whereby
predecessor-in-interest of the petitioners is stated to have been
appointed as Khalifa by Akhyar-ud-Din Sahib, the brother of
Shah Assrar ud-Din Sahib.
OWP Nos. 97/1979 & 441/2013 Page 14 of 36
22. Before determining the merits of the aforesaid
contention, it is necessary to understand as to what is meant
by “Wakaf”.
23. Section 3(d) of the Act of 1959 and under Section
3(d) of the Act of 1978 lay down definition of “Wakaf” which is
identical excepting that in terms of the Act of 1978, dedication
has to be made by a person professing Islam whereas, under
the Act of 1959, there is no such restriction. Here, it would be
apt to refer to the provisions contained in Section 3(d) of the
Act of 1978:
“3(d) “Wakaf” means the permanent dedication by a
person professing Islam of any property movable or
immovable for any purpose recognized by Muslim Law or
usage as religious, pious or charitable and includes-
(i) a Wakaf by user such as Masjid, Idgah,
Dargah, Khankah, Maqbara, Graveyard, Grave,
Rauza. Mausoleum, Takia, Sarai, Yatim Khana.
Madrasa and Shafakhana; and
(ii) a Wakaf-ul-Aulad?
(a) for the maintenance and support,
wholly or partially of his family, children or
decendents; or
(b) for the maintenance of the Wakaf or
for the payments of his debts out of the rents
and profits of the property dedicated:
Provided that the ultimate benefit is in such
cases expressly or impliedly reserved for the
poor or for any other purpose recognized by
the Muslim law as a religious, pious or
charitable purpose of a permanent character;
(iii) a grant, endowment or dedication of any
property movable or immovable, made by the
Government or any person or ruler for any of the
aforesaid purposes;
OWP Nos. 97/1979 & 441/2013 Page 15 of 36
24. From a perusal of the aforesaid provision, it appears
that a Wakaf would mean permanent dedication of any
property movable or immovable for any purpose recognized by
Muslim Law or usage as religious, pious or charitable. Thus,
there has to be a dedication by a person professing Islam of
any property movable or immovable for the aforesaid purpose.
However, the Wakaf also includes a Wakaf by user such as
Masjid, Idgah, Dargah, Khankah, Maqbara, Graveyard, Grave,
Rauza, Mausoleum, Takia, Sarai, Yatim Khana, Madrasa and
Shafakhana. Thus, not only a property, which has been
dedicated for the purpose recognized by Muslim Law or usage
as religious, pious or charitable but even the Wakafs by user of
the nature as mentioned in sub-clause (i) quoted above would
become a wakaf without there being any dedication.
25. The aforesaid view is supported by the judgment of
the Division Bench of this court rendered in the case of
Intizamiya Committee Dargah (I) & Anr Vs. Ut of J&K & ors
(LPA No. 187/2023, decided on 05.06.2025). The Court
while interpreting the provisions contained in Section 3(d) of
the Act of 1978 has observed as under:
13. From a plain reading of the definition of ‘Wakaf’, it is crystal
clear that the Wakaf would mean permanent dedication by a person
professing Islam of any property movable or immovable for any
purpose recognized by Muslim Law or usage as religious, pious or
OWP Nos. 97/1979 & 441/2013 Page 16 of 36
charitable. It would also include a Wakaf by user, such as, Masjid,Idgah, Dargah, Khankah, Maqbara, Graveyard, Grave, Rauza,
Mausoleum, Takia, Sarai, Yatim Khana, Madrasa etc. etc. It is, thus,
quite evident that Wakaf can be created by permanent dedication
by a person professing Islam with respect to his property for any
religious, pious or charitable purposes recognized by Muslim law.
The properties like Masjid, Dargah etc. by virtue of their user as
such are also Wakafs and no formal declaration to declare such
properties as ‘Wakaf’ is required under the Act of 1978.”
26. In the light of aforesaid legal position with regard to
definition of Wakaf by user, if we have a look at the document
(Annexure-A) to the writ petition, it clearly refers to expression
„Rauza‟. Since „Rauza‟ is included in sub-clause (i) of Clause
(d) of Section 3 of the Act of 1978, therefore, even as per the
document upon which the petitioners have placed reliance, the
property in question qualifies to be a “wakaf by user” within
the meaning of Section 3(d) of the Act of 1978 and no formal
dedication of the owner viz Raja Kirat Singh was required for
including the property in question within the purview of
Wakaf.
27. The next contention that has been raised by the
petitioners is that the Special Officer appointed under the Act
of 1959 had, vide his report dated 09.08.1969, concluded that
the two ziarats, which are subject matter of the present writ
petition, have attained a separate and independent position
OWP Nos. 97/1979 & 441/2013 Page 17 of 36
and should not, as such, be brought within the jurisdiction of
the Committee. It has been contended that in the said report,
it has been stated that the petitioners have got hereditary
rights as Sajjadu Nasheens as one of their ancestors has been
nominated as successor (khalifa) by Hazrat Shah Farid-ud-Din
Sahib and, therefore, these properties cannot be brought
within the purview of Wakaf. This report, according to the
petitioners, has acquired finality and in spite of repeal of Act of
1959, the said report is saved and could not have been ignored
by the respondents under any circumstances. In this regard,
reliance is being placed upon the provisions contained in
Section 61 of the Act of 1978.
28. In the above context, if we have a closer look at the
report dated 09.08.1969 made by the Special Officer appointed
under the Act of 1959, it would come to the fore that the officer
has not given any finding to the effect that the two ziarats do
not qualify to be wakafs. The Special Officer has, by relying
upon the nomination of predecessor-in-interest of the
petitioners as Khalifa by Hazrat Farid-ud-Din Sahib, observed
that these two Ziarats have attained a separate and
independent position and has recommended that while
constituting Tehsil Wakaf Committee, names of Sajjadu
Nasheens of these two ziarats be included as representatives of
these two shrines. The officer has suggested that these two
OWP Nos. 97/1979 & 441/2013 Page 18 of 36
shrines should not be brought within the jurisdiction of the
Committee.
29. Here it is to be noted that as per the provisions
contained in Section 4(3) of the Act of 1959, the Special Officer
is duty bound to provide details about the wakaf properties.
Section 4(3) of the Act of 1959 reads as under:
“S.4(3) The Special Officer shall, after making such inquiry as he may
consider necessary, submit his report to the Government containing the
following particulars, namely:-
A) the number of wakafs in the area;
B) the nature and object of the wakaf;
C) the gross income of the property comprised in each wakaf;
D) the amount of land revenue cesses, rates and taxes payable in
respect of such property;
E) the expenses incurred in the realization of the income and the
pay or other remuneration of the Mutwalli of each wakaf; and
F) such other particulars relating to each wakaf as may be
prescribed.
30. From a perusal of the aforesaid provisions, it is
clear that the function of a Special Officer is to submit a report
with regard to number of wakafs in the year, the nature and
object of the wakaf, the gross income of the property
comprised in each wakaf, the amount of land revenue, cesses,
rates and taxes payable in respect of such property, the
expenses incurred in the realization of the income and the pay
or other remuneration of the Mutwalli relating to each wakaf
as may be prescribed. While it is correct that a Special Officer
while making an enquiry has to ascertain whether a particular
OWP Nos. 97/1979 & 441/2013 Page 19 of 36
property is or is not a wakaf property, it is none of his job to
recommend whether the Sajjadu Nasheens of a particular
ziarat should be included in the Tehsil Committee. It is also
none of the functions of the Special Officer to determine as to
whether a particular ziarat has attained a separate status and
whether said ziarat should be kept beyond the purview of the
Wakaf Committee. The only recommendation, which the
Special Officer could have made, is whether the aforesaid two
ziarats qualify to be the wakaf. Regarding this aspect, the
Special Officer has rendered no opinion. The recommendation
with regard to the two ziarats made by the Special Officer, vide
his report dated 09.08.1969, appears to be beyond his
jurisdiction.
31. Apart from the above, if we have a look at the
provisions contained in Section 5 of the Act of 1959, it
provides that upon receipt of report of the Special Officer, the
same has to be forwarded by the Government to the committee
constituted under the Act, which has to examine the report
and thereafter the report has to be published in the
Government gazettee. Sub-section (4) of Section 6 of the Act of
1959 makes the list of wakafs published under sub-section (2)
of Section 5 final and conclusive.
32. In the present case, the Government has, at no
point of time, forwarded the report dated 09.08.1969 issued by
OWP Nos. 97/1979 & 441/2013 Page 20 of 36
the Special Officer to the concerned committee nor has it been
published in the Government gazette. Even otherwise, what
becomes conclusive and final is the list of wakafs published in
the Government gazette and not the observations of the
Special Officer made in his report in respect of any property,
which is not included by the officer in the list of Wakafs.
Therefore, report dated 09.08.1969 can, by no stretch of
reasoning, be stated to have attained the status of finality so
as to attract a follow up action by the Government or any other
authority.
33. Section 61 of the Act of 1978 does save anything
done or any action taken in exercise of any power conferred by
or under the Act of 1959 but having regard to the nature of the
report dated 09.08.1969, no follow up action could have been
taken on the basis of the said report. As already stated, the
said report had not attained the finality and it was neither
accepted by the Government nor by the Committee, as such,
the same is not saved by the provisions contained in Section
61 of the Act of 1978.
34. Learned Senior counsel appearing for the
petitioners has, while relying upon the judgment of the
Supreme Court in the case of Abdul Kuddus Vs. Union of
India and Ors, (2019) 6 SCC 604, contended that the findings
recorded by Special Officer in his report dated 09.08.1969
OWP Nos. 97/1979 & 441/2013 Page 21 of 36
would act as res judicata and, therefore, the same could not
have been re-opened in the subsequent report of the Special
officer appointed under the Act of 1978. In this regard, it is to
be noted that the observations of the Special Officer rendered
in the report dated 09.08.1969, as already indicated
hereinbefore, were beyond his jurisdiction and the said report
at no stage had attained finality as it was never examined by
the Government and the committee, therefore, the
observations made by the Special Officer in the said report
would not act as res judicata and would not create a bar to the
subsequent Special Officer to go into the issue as to whether
the two ziarats qualify to be wakaf. The argument of the
learned Senior counsel is, therefore, without any substance.
35. The next contention that has been raised by learned
Senior counsel for the petitioners is that the Special Officer
while making his impugned report dated 05.08.1979 did not
afford an opportunity of hearing to the petitioners who, by
virtue of previous report of the Special Officer and by virtue of
being in the possession and management of the two shrines,
were the interested persons, hence entitled to right of hearing.
It has been pleaded in the writ petition that the Special Officer
visited Kishtwar only for a couple of days to make the enquiry
and it was impossible for him to make enquiry within this
short period of time. The learned Senior counsel has relied
OWP Nos. 97/1979 & 441/2013 Page 22 of 36
upon a number of judgments to buttress his argument that
the Special Officer is a quasi judicial authority, who has a duty
to afford an opportunity of hearing to all interested persons.
36. I would not like to burden this judgment with the
case law relied upon by the learned Senior counsel for the
petitioners to buttress his aforesaid contention because there
is no dispute to the legal position that having regard to the
nature of enquiry that a Special Officer has to undertake, the
said officer acts as a quasi judicial authority and he has to
afford an opportunity of hearing to all the interested persons.
The question that begs for an answer is whether the
petitioners in the instant case were afforded an opportunity of
hearing by the Special Officer.
37. If we have a look at the order passed by the Special
Officer, it is clearly stated therein that certain applications
were received from the people of the locality as also from
mohtamims of the two mausoleums. It has also been recorded
in the impugned report that only two persons, who claimed
themselves to be Sajjadu Nasheens of the dargah, stated that
they were owners of the wakaf property of the ziarats and that
they are proprietors of the two mausoleums. Having regard to
the fact that the Special Officer has noticed the contentions of
the petitioners, it can be inferred that they were heard by the
Special Officer. The impugned report clearly takes note of the
OWP Nos. 97/1979 & 441/2013 Page 23 of 36
contention of the petitioners and the Special officer goes on to
record that after having examined the evidence and the
documents produced including the old land revenue record, he
has come to the conclusion that the immovable property
dedicated to the two ziarats is a wakaf property. The
contention of the petitioners that they were not heard and they
were not allowed to produce material in support of their
contentions is, therefore, contrary to what the Special Officer,
has recorded in the impugned report.
38. It is to be noted that the petitioners filed an
appeal against the aforesaid report of the Special Officer before
the Minister concerned in terms of Act of 1978. In their memo
of appeal before the appellate authority, the petitioners have
claimed that the ziarats have been gifted to their ancestors
and, as such, the same are their personal properties. They
have also raised the plea that their right as Sajjadu Nasheens
is a hereditary one. The petitioners have also contended before
the appellate forum that in view of Section 61 of the Act of
1978, the first report of the Special Officer is saved and it has
further been contended that no proper enquiry was conducted
by the Special Officer on the second occasion as no notice was
issued to the petitioners. The memo of appeal is
comprehensive in nature. It raises as many as nineteen
OWP Nos. 97/1979 & 441/2013 Page 24 of 36
grounds for assailing the second report of the Special Officer
and the SRO dated 15.11.1979.
39. The Minister Incharge has, after dealing with the
aforesaid contentions raised in the memo of appeal, passed a
detailed order dated 30.04.1982. As per the appellate
authority, in view of the entries in the Record of Rights, the
property in question is not the personal property of the
petitioners but it is the property of the ziarats, which qualifies
to be wakaf. The appellate authority has also dealt with in
detail the contention of the petitioners with regard to finality of
the first report of the Special Officer and their contention that
no adequate opportunity of presenting the case was given to
them by the Special Officer on the second occasion. It has also
been noted by the appellate authority that the petitioners have
not produced any document to support their claim that the
two ziarats and the property attached thereto is their personal
property.
40. Thus, even if it is assumed that the petitioners were
not granted adequate opportunity to present their case before
the Special Officer when he rendered his report dated
05.08.1979 still then it can safely be stated that the petitioners
had all the opportunity to place on record all the documents
and the material that was available in their possession in
support of their claim before the appellate authority, which
OWP Nos. 97/1979 & 441/2013 Page 25 of 36
they failed to do, as a result of which, the appellate authority,
on the basis of the entries in the Records of Rights, came to
the conclusion that two ziarats and the property attached
thereto is not the personal property of the petitioners but the
same is the property of the ziarats, which qualify as wakaf.
41. So far as the scope of power of this court under writ
jurisdiction to interfere with the orders and findings recorded
by a quasi judicial authority like the Special Officer or the
appellate authority in this case is concerned, the same is
limited in nature. A Constitution Bench of the Supreme Court
has, in the case of Syed Yaqoob Vs. K.S. Radhakrishnan &
ors, AIR 1964 SC 477 has analyzed the legal position about
the limits of jurisdiction of High Courts in issuing a writ of
certiorari in respect of orders passed by inferior courts or
Tribunals, in the following manner:-
7. The question about the limits of the jurisdiction of High Courts in
issuing a writ of certiorari under Art. 226 has been frequently
considered by this Court and the true legal position in that behalf
is no longer in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior courts or
Tribunals; these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or in excess of it, or as a
result of failure to exercise jurisdictions. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court or
Tribunal acts illegally or improperly, as for instance, it decides a
question without giving an opportunity to be heard to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it isOWP Nos. 97/1979 & 441/2013 Page 26 of 36
not entitled to act as an appellate Court. This limitation necessarily
means that findings of fact reached by the inferior Court or
Tribunal as a result of the appreciation of evidence cannot be
reopened or questioned in writ proceedings. An error of law which
is apparent on the face of the record can be corrected by a writ, but
not an error of fact, however grave it may appear to be. In regard
to a finding of fact recorded by the Tribunal a writ of certiorari can
be issued if it is shown that in recording the said finding, the
Tribunal had erroneously refused to admit admissible and
material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Similarly, if
a finding of fact is based on no evidence, that would be regarded
as an error of law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must always
bear in mind that a finding of fact recorded by the Tribunal cannot
be challenged in proceedings for a writ of certiorari on the ground
that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ court. It is within these limits that
the jurisdiction conferred on the High Courts under Art. 226 to
issue a writ of certiorari can be legitimately exercised (vide Hari
Vishnu Kamath v. Syed Ahmed Ishaque ), Nagendra Nath Bora v.
The Commissioner of Hills Division and Appeals, Assam ([1958]
S.C.R. 1240.), and Kaushalya Devi v. Bachittar Singh .
8. It is, of course, not easy to define or adequately describe what
an error of law apparent on the face of the record means. What can
be corrected by a writ has to be an error of law; but it must be
such an error of law as can be regarded as one which is apparent
on the face of the record. Where it is manifest or clear that the
conclusion of law recorded by an inferior Court or Tribunal is
based on an obvious mis-inter-pretation of the relevant statutory
provision, or sometimes in ignorance of it, or may be, even in
disregard of it, or is expressly founded on reasons which are
wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
OWP Nos. 97/1979 & 441/2013 Page 27 of 36
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but there can be no doubt
that what can be corrected by a writ of certiorari is an error of law
and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face
of the record. If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the
inferior Court or Tribunal, its conclusion may not necessarily or
always be open to correction by a writ of certiorari. In our opinion,
it is neither possible nor desirable to attempt either to define or to
describe adequately all cases of errors which can be appropriately
described as errors of law apparent on the face of the record.
Whether or not an impugned error is an error of law and an error of
law which is apparent on the face of the record, must always
depend upon the facts and circumstances of each case and upon
the nature and scope of a the legal provision which is alleged to
have been misconstrued or contravened.
42. From the foregoing analysis of legal position, it is
clear that it is only in cases where the quasi judicial authority
has acted without jurisdiction or it has committed an error of
law or there is violation of natural justice or when the decision
arrived at by the quasi judicial authority is afflicted with
irrationality or the same is tainted with malafides that the
High Court would be within its jurisdiction to interfere with
such orders. The High Court while exercising its writ
jurisdiction cannot sit in appeal over the order of the tribunal
or the quasi judicial authority and substitute its own opinion
in place of the opinion rendered by the quasi judicial authority.
OWP Nos. 97/1979 & 441/2013 Page 28 of 36
43. Applying the aforesaid legal position to test the
legality of the impugned report of the Special Officer and the
impugned order passed by the appellate authority, it is clear
that neither the Special Officer while rendering his report
dated 05.08.1979 nor the appellate authority while passing the
judgment dated 30.04.1982 has committed any jurisdictional
error or procedural irregularity. Further it is not a case where
there is any error apparent on the face of the record in the
orders passed by the two authorities. Therefore, the order
passed by the Special Officer on 05.08.1979 and the appellate
authority on 30.04.1982 do not warrant any interference from
this court in its writ jurisdiction.
44. Learned Senior counsel appearing for the
petitioners has further contended that the two ziarats and the
properties attached thereto were allotted to the predecessors-
in-interest of the petitioners. In this regard, the petitioners
have relied upon khilafatnama 11-4-1100 (Hijri)/2.2.1689 A.D,
which finds mention in the book of Tareekh Kishtwar written
by historian Sh. Najam-ud-Din Hassunul Hussaini and is also
supported by the books of history titled Tareekh Kishtwar by
Sh. Pandit Shiv Ji Dhar and Tareekh Kishtwar written by
Sh. Hashmatullah Khan.
45. It has been further contended that the land under
the possession of the petitioners of both the ziarats was not
OWP Nos. 97/1979 & 441/2013 Page 29 of 36
granted by the then rulers to the ziarats but the same was
granted to the ancestors of the petitioners in consideration of
their services to the rulers of time, which is testified by
“Tareekh Kishtwar” written by Syed Najam-ud-Din Hassunul
Hussaini. It has been submitted that in the said book,
document styled as Ahadnama finds mention which clearly
indicates that the land in question in the vicinity of the ziarat
has been granted to Hafiz Abdul Qasim (ancestor of the
petitioners) in consideration of his marriage with
granddaughter of ruler of Raja Kirat Singh. On the basis of
these documents and history books, it is being contended that
mere entry in the relevant revenue record in the name of the
shrines cannot extinguish the right of ownership of the
petitioners over the said land. Learned Senior counsel for the
petitioners while referring to the provisions contained in
Section 57 of the Evidence Act has also placed reliance upon
the following judgments:
(I) Aliyathammuda Beethathebiyyappura Pookoya and Anr Vs.
Pattakal Cheriyakoya and Ors, 2019 (16) SCC 1
(II) Swami Harbansa Chari Ji and Ors Vs. State of Madhya Pradesh
AIR 1981 MP 82
(III) Prabhagiya Van Adhikari Awadh Van Prabhag Vs. Arun Kumar
Bhardwaj, 2021 (18) SCC 104
(IV) Bhimabai Mahadeo Kambekar (Dead) through legal
representative Vs. Arthur Import and Export Company and ors,
2019 (3) SCC 191
(V) Balwant Singh and Ors Vs. Daulat Singh (Dead) by LRs and
Ors, AIR 1997 SC 2719 andOWP Nos. 97/1979 & 441/2013 Page 30 of 36
(VI) Onkar Nath & Ors Vs. The Delhi Administration, AIR 1977 SC
1108.
46. In the above context, it has to be noted that the
documents alleged to have been executed by the then rulers in
favour of ancestors of the petitioners including the Ahadnama,
which have been placed on record, are illegible photocopies
though their translated version have also been placed on
record. The authenticity of these documents has been denied
by the respondents. The petitioners in order to substantiate
their claim about the authenticity of these documents have
placed reliance upon various history books pertaining to
kingdom of Kishtwar reference whereof has been made
hereinbefore. These Patanamas and Ahadnamas find mention
in the books of history. The question that arises for
determination is whether the statements made in the history
books with regard to title of the petitioners and their ancestors
to the properties in question can be relied upon.
47. In this regard, the provisions contained in Section
57 of the Evidence Act, which provides that in all matters of
public history, literature, science or art, the Court may resort
for its aid to appropriate books or documents of reference,
needs to be properly understood and applied to the facts of the
present case. The question whether the books of history can
be relied upon for proving the title of the property has been
OWP Nos. 97/1979 & 441/2013 Page 31 of 36
deliberated upon by Rajasthan High Court in the case of
Krishan Lal Vs. Sohan Lal and ors, AIR 1955 Raj 45. The
Court, while holding that the question whether a particular
property was granted to a particular person by a former ruler
is not a matter of public history, observed as under:
36. The argument is that this is a matter of public history, and
therefore we should look into Nensi’s-Khyat for this purpose.
We must say that we cannot accept this contention. The
question whether a particular village was granted to a
particular person by a former ruler is not a matter of public
history. It cannot really be contended that statements as to
title of a certain person to a certain property, if found in some
book written by somebody a century or two ago, would be
relevant and admissible evidence to prove that title. We are,
therefore, of opinion; that statements in Nensi’s Khyat with
respect to the grant of a particular jagir to a particular person
is not a matter of public history, and therefore courts cannot
take judicial notice of it.
37. It is true that in Nensi’s Khyat, it is mentioned that
Kanawas was granted to Kana and Malpuria to Kumpa; but
that statement is not a matter of public history of which courts
can take judicial notice. This statement overrides the clear
inference to be drawn from entries in state records over a
period of about 200 years. The first appellate court was,
therefore, wrong in taking judicial notice of Nensi’s Khyat in
this matter, and though the Chief Court did not hold that it
could not take judicial notice of Nensi’s Khyat, it preferred the
evidence of entries in Government records to statements in
Nensi’s Khyat. We are prepared to go further and hold that we
cannot take judicial notice of Nensi’s Khyat, and therefore the
clear inference to be drawn from Exs. A1 to A5 must prevail
OWP Nos. 97/1979 & 441/2013 Page 32 of 36
namely that the villages of Malpuria and Kanawas were
both granted to Kumpa.
48. Thus, it is clear that it is only in the matters of
public history that the court can rely upon appropriate books
or documents of reference. Whether a person is or is not
holding a title to a particular property cannot be a question of
fact of public history.
49. Section 57 of the Evidence Act permits resort to
appropriate books or documents of reference on matters of
public history but not of a private or local nature. These
history books or references cannot be used for proof of any fact
relating to title of a property. The question of title between the
Ziarats, though old and historical institutions and private
person, the petitioners, herein cannot be deemed “matter of
public history” and historical works cannot be used to
establish title to such property. Therefore, even if it is
assumed that the history books to which reference has been
made by learned Senior counsel for the petitioners have been
authored by reputed historians still then the facts relating to
title of the property in question mentioned in those history
books cannot be used to prove the title of the petitioners to the
properties in question.
50. As against this, we have on record of the writ
petition the extracts of jamabandi charsala relating to the
OWP Nos. 97/1979 & 441/2013 Page 33 of 36
ziarat and the properties attached thereto. In all these
documents, the name of the owner is shown as the ziarat and
not that of the petitioners or their ancestors in their individual
capacity. It is true that entries in the Record of Rights are not
conclusive evidence with regard to title of the property but it is
also equally true that entries in Record of Rights provide a
strong evidence with regard to title of the property. It is only if
it is rebutted by a cogent and convincing material that the said
entries cannot be relied upon.
51. In the present case, the petitioners have not placed
on record any cogent and convincing material that would rebut
the presumption attached to the entries in the jamabandi.
Therefore, it cannot be stated that the petitioners or their
ancestors were the owners of the ziarat and the land attached
thereto. In fact, it has come on record that at one point of time
when a mohtamim of the ziarats tried to gift 20 kanals of the
land attached to the ziarat to one of their relatives, the
mutation in this regard was rejected right from the Tehsildar
upto the Revenue Minister on the ground that the property
does not belong to the mohtamims but it belongs to the ziarat
hence, could not be gifted away.
52. For what has been discussed hereinbefore, it is
clear that the petitioners have not succeeded in showing that
the two ziarats and the properties attached thereto do not
OWP Nos. 97/1979 & 441/2013 Page 34 of 36
qualify as wakaf property and that the same was the personal
property of the petitioners and their ancestors. It is
abundantly clear that the entire property in question is wakaf
property. Thus, there is no ground to interfere in the
impugned report of the Special Officer as upheld by the
appellate authority vide its order dated 30.04.1982. However,
it is to be noted that the appellate authority while passing
order dated 30.04.1982 had directed that the petitioners be
permitted to occupy the residential houses which they have
built upon the land of the ziarats as lessees of wakaf property
and the petitioners were directed to execute necessary
agreements to this effect with the respondents. The petitioners
were also given right to receive 25% of the offerings. This part
of the direction has been set aside by this Court vide order
dated 10.09.1998 passed in Writ Petition No. 520/1983 but
the direction, permitting the petitioners to occupy the
residential houses as lessees of wakaf property has acquired
the finality.
53. In view of the above, while dismissing the writ
petition, the petitioners are permitted to occupy the residential
houses, which they have constructed upon the land of the two
Ziarats as lessees of wakaf property in accordance with the
directions contained in impugned order dated 30.04.1982
passed by the appellate authority.
OWP Nos. 97/1979 & 441/2013 Page 35 of 36
OWP No. 441/2013
54. Through the medium of present petition, the
petitioners have challenged the vires of Act of 1978 and the Act
of 2001. The Act of 1978 has been repealed and replaced by
Act of 2001 whereas Act of 2001, after coming into force of
J&K Re-organization Act, 2019 also stands repealed. Presently
Waqaf Act, 1995 (Central) has been made applicable to UT of
J&K. The challenge to the aforesaid two legislations, which
have already been repealed, has, thus, been rendered
infructuous.
55. In view of the above, the writ petition is dismissed
as having been rendered infructuous.
(SANJAY DHAR)
JUDGE
JAMMU
02.04.2026
Naresh/Secy.
Whether the judgment is speaking: Yes
Whether the judgment is reportable: Yes
..x..
Naresh Kumar
2026.03.18 06:56
I attest to the accuracy
OWPand
Nos. 97/1979 & 441/2013 Page 36 of 36
integrity of this document
