Mansoor Ahmad Mir, J.
1. Petitioners have sought quashment of the eviction notices and eviction orders passed by the respondents and have also prayed for restraining the respondents from causing any kind of interference in the peaceful use, occupation, enjoyment and possession of the Specified Wakafs Property held by the petitioner(s) described in the respective writ petitions. They have further sought to declare Sub-section 2 of Section 22-B, Sections 22D, 22E and 22K of Jammu & Kashmir Muslims Specified Wakafs and Specified Wakafs Properties (Management and Regulation) Act, 2005, hereinafter referred to as Wakaf Act-2005 as un-constitutional on the grounds taken in the writ petition(s).
2. Learned Counsel for the respondents raised preliminary objections that these writ petitions are not maintainable on two counts; first that the Wakaf Board is not amenable to the writ jurisdiction and second that petitioners have alternate remedy available. Further learned Counsel for respondents stated that Wakaf Act-2005 is under challenge before the Apex Court and a writ petition is pending before the said Court.
3. Keeping in view the preliminary objection raised by the learned Counsel for respondents, I deem it proper to decide the preliminary issues without touching the merits of the case.
4. The questions involved in these writ petitions are;
Whether the Wakaf Board-constituted under Jammu & Kashmir Specified Wakafs and Specified Wakaf Properties (Management & Regulation) Act, 2004 is fully autonomous body and not an instrumentality of the State?
Whether Wakaf Act 2004 provides a alternate efficacious remedy to the petitioners?
5. In order to reply these questions, the facts of the case(s) are to be kept in view.
The case of the petitioners is that they are in possession, occupation and use of the subject matter of the writ petition(s) respectively on lease basis in terms of legal and valid lease deed(s). The respondents have illegally and without jurisdiction passed impugned eviction notices and orders.
6. The case of the respondents is that right of the petitioner(s) to occupy and enjoy the property has expired and notice came to be issued. Thereafter came to be declared as un-authorised occupants under the provisions of the Wakaf Act 2004. The Board came to be constituted under the Wakaf Act 2004-is autonomous and independent body and not an instrumentality of the State. The Government has no control over the Specified Wakaf Properties and the Government has no control whatsoever over the funds of the Wakaf Board and State is not providing any financial assistance to the Board. The Wakaf Board is not enjoying monopoly status. The activities of the Board are of different kind. State has no control over the Board of Wakaf Properties. The functions of the Board are purely of public importance and property of public wakaf are being preserved and protected by the Board under the provisions of the Act.
7. The Wakaf Act 2004 provides how Board can be constituted, how by-laws can be made, what are the Specified Wakafs and Specified Wakaf Properties. Wakaf Act 2004 also provides; how Board of Directors is to be constituted, composition of Board, qualifications for membership of the Board, powers and duties of the Board, how meetings are to be convened, liability of the members, how to seek and receive offerings, how accounts are to be maintained and audited etc. Section 22 of the Wakaf Act 2004 provides how to recover Wakaf Property and what is the procedure for eviction/recovery.
8. Order No. 101 dated 25th August, 2005 provides that the eviction orders can be challenged before the appellate authority as laid down in Sections 44 and 56 of J&K; Wakfs Act 2001. It is profitable to reproduce order No. 101 herein which reads as under:
In pursuance of the procedure of eviction as laid down in Sections 44 and 56 of J&K; Wakfs Act 2001 as extended to J&K; Muslim Specified Wakfs and Specified Wakf Properties (Management, and Regulation) Act 2004 (section 22), the powers of Chairman, Tehsil committee and the Appellate Authority shall be exercised by the following authorities of the Board:___________________________________________________________________|S.No. | Name of the Authority |Powers ||-------|-------------------------------|--------------------------||1. | Vice Chairman of the Board |Appellate Authority ||-------|-------------------------------|--------------------------||2. | Executive Directors |Chairman Tehsil Committee.||_______|_______________________________|__________________________|
9. The question before this Court is whether Wakaf Board is a State within the meaning of Article 12 of the Constitution?
10. The significance of Article 12 lies in the fact that it occurs in Part III of the Constitution which deals with the fundamental rights. Part III of the Constitution have placed responsibilities and obligations of the State vis--vis an individual to ensure constitutional protection of individual's right including right to equality and equality of opportunity of public employment. This Article came to be interpreted before the Apex Court in various cases.
11. Keeping in view the significance of Article 12 of the Constitution, the crucial question arose number of times about the import of the expression 'State' and other 'authorities'. The term 'State' and 'authorities' were treated as exhaustive and confined to authorities mention in Article 12 itself. But with the passage of time scope of fundamental rights particularly the right to equality got widened by judicial pronouncements.
12. It is necessary to trace notes on the law and notice various decisions.
The question arose in the case of Rajasthan State Electricity Board v. Mohan Lal : (1968)ILLJ257SC , was whether Electricity Board which was a Corporation constituted under the Statute for carrying of commercial activities could be called 'State' within the meaning of Article 12 of the Constitution. It was held that '...this decision of the Court support our view that the expression 'other authorities' in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law'. The companies incorporated under the Companies Act were not regarded as State.
Apex Court in case titled Praga Tools Corporation v. C.A. Imanual reported in : (1969)IILLJ479SC , held as under:
.there was neither a salutatory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lies against the company.
Apex Court in a case titled Ujjam Bai v. State of U.P. reported in AIR 1962 SC 1621 held that 'an 'inclusive' definition is generally not exhaustive'.
The Apex Court affirmed the decision of 'Rajasthan State Electricithy Board v. Mohan Lai (supra) in case of Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi reported in : (1975)ILLJ399SC .
In the year 1979, law came to be developed in a case titled Ramana Dayaram Shetty v. International Airport Authority of India reported in : (1979)IILLJ217SC .
Apex Court had gone ahead while developing law in Ajay Hasia v. Khalid Mujib Sehravardi : (1981)ILLJ103SC .
Apex Court in both the above said cases laid down the following tests, as gathered and reproduced in case titled Ajay Hasia and Ors. v. Khalid Mujib Sehravardi reported in : (1981)ILLJ103SC , for determining the legal character of a company or corporation as an instrumentality or agency of the government:
(1) One thins is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p.507, para 14)
(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p.508, para 15)
(3) It may also be a relevant factor...whether the corporation enjoys monopoly status which is State conferred or State protected. (SCC p.508, para 15)
(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p.508, para 15)
(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p.509, para 16)
(6) 'Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p.510, para 18)
13. After noticing the counter judgments and judgments referred hereinabove the Apex Court in case titled Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. reported in : [2002]3SCR100 held as under:
40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be-whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State.
14. A question arose before the Division Bench of this Court that whether Shrine Board constituted under Jammu & Kashmir Shri Mata Vaishnoo Devi Shrine Act 1988 is amenable to the writ jurisdiction, the question was replied in negative. It is profitable to reproduce para-19 of the said judgment herein, which reads as under:
19. In the above premises even though the Shrine Board has been constituted under a statute and, therefore, has a statutory status, in the absence of any kind-even an iota of control of the Government-financial, functional or administrative-it cannot be said to be State or an authority within the meaning of Article 12 of the Constitution of India. It has, therefore, to be held that the writ petitions for enforcement of fundamental rights against the Shrine Board are not maintainable. It is not the case of the appellants/petitioners that de hors the claim as to infringement or enforcement of fundamental right, the writ petitions would succeed.
15. Keeping in view the tests laid down by the Apex Court and the ratio laid down by the Division Bench of this Court (supra), core question is whether Wakaf Board is financially, functionally and administratively under the control of the Government or dominated by the Government? To answer this question relevant provisions of the Act are to be noticed.
16. Section 2 contains definitions. Section 5 provides possession, administration, supervision, control and management of the Wakafs and properties vests in the Board. Section 6 gives the composition of the Board. Section 7 prescribes the qualifications for membership. Section 9 provides how Vice Chairman can be elected. Section 11 contains the powers and duties of the Board. Section 12 provides how to convene the meetings. Section 15 provides how orders of Board can be enforced. Section 17 provides how officers and employees of the Board can be appointed. Section 18 provides how Chief Executive can be appointed. Sections 19 and 20 provides how to, seek and receive offerings and, perform the religious practices. Section 21 provides how accounts can be maintained, audited and reviewed. Section 22 provides how Wakaf property can be recovered and what procedure is to be followed for eviction. Section 26 of the Act provides powers of the Board to make Bye-laws.
17. Keeping in view the scheme and mechanism provided by the Act, the Government has no role to play and in no way it is controlled by it or dominated by it. The Government of Jammu & Kashmir has absolutely no role to play. The Board under the Act is fully autonomous body and there is not an iota of control of the Government over it, therefore, cannot be said to be instrumentality of the State. Thus it is not coming within the ambit of definition of 'State' or an 'authority' within the meaning of Article 12 of the Constitution of India for the following reasons.
18. The Act clearly mandates that Government has no control over the funds of the Board. It has neither to receive financial assistance from the State nor the State has to provide financial assistance to it. Wakaf Board is not enjoying monopoly status. The activities of the Board are of different nature and are described and indicated in the Wakaf Act 2004. Thus the question of its enjoying any monopoly status conferred or protected by the State does not arise at all. The test that 'existence of pervasive state control' is also not satisfied for the reasons that State has no authority and power to deal with the matter. The Board is an independent authority. The Act contains self contained procedure and mechanism how to run, protect and safeguard the Wakaf Properties and Specified Wakaf Properties. The functions which the Board has to perform as per the mandate of the Act, Rules and bye-laws are of public importance and are not remotely related to Government functions. It is just to preserve the Wakaf properties.
19. The last test prescribed by the Apex Court refers to 'transfer of Government department to the Corporation' does not arise in the instant case.
20. Keeping in view the above discussion, it would thus appear that though the nature and functions of the Board can be said to be of public importance but no other test laid down by the Apex Court is satisfied. No doubt Board came to be constituted under the Statute and, therefore, has a statutory status. In absence of any kind of financial, functional or administrative control even an iota of control of the Government, it cannot be said to be State or an authority within the meaning of Article 12 of the Constitution of India. Thus, it can be safely held that writ petitions for enforcement of fundamental rights against the Board are not maintainable.
21. Now dealing with the second question framed hereinabove-whether an alternate remedy is available to the writ petitioners?
22. The subject matter of the writ petitions are eviction notices and eviction orders passed by the respondents. Section 22 of the Act provides how to conduct the eviction proceedings and how to pass eviction orders and also provides the right of appeal. It is profitable to reproduce Section 22 of the Act herein:
22. Recovery of Wakaf property and procedure for eviction: The provisions of Sections 44 to 56 (both inclusive) of the J&K; Wakaf Act, 2001 shall mutatis mutandis apply for recovery of the Wakafs and Properties covered under Section 3 and eviction of unauthorized occupants thereof subject to the modification that the powers of the Chairman, Tehsil Committee and the appellate authority under the said provisions shall be exercised by such person or authority as the Chairman may, from time to time, appoint in this behalf.
23. Keeping in view Section 44 to 56 read with order No. 101 referred hereinabove, petitioners have efficacious remedy available. Thus, are having an alternative remedy available in their armory.
24. Petitioners have challenged some of the provisions of the Act. It is specifically pleaded by the respondents in reply that Section 22-B, 22-D, 22-E and 22-K are not applicable to the facts of the instant cases and have not been invoked by the respondents.
25. Admittedly the varies of the Act have been challenged before the Apex Court by the medium of a petition which is still sub-judice.
26. Thus, in the given circumstances of the case, I deem it proper not to thrash out this issue.
27. Keeping in view the above discussion, I am of the considered view that all these writ petitions merit to be dismissed, which are accordingly dismissed along with all connected CMP(s). Interim direction, if any, is vacated.