‘Strangers can’t invoke writ jurisdiction’
Excelsior Correspondent
JAMMU, Mar 1: Holding that writ jurisdiction cannot be invoked by persons who are “mere strangers to the subject matter of dispute”, the High Court of Jammu & Kashmir and Ladakh has dismissed a petition challenging SRO 320 dated 31.08.1985 relating to Wakaf properties in Poonch, ruling that the petition suffered from lack of locus standi, disputed questions of fact and inordinate delay.
The judgment was delivered by Justice Wasim Sadiq Nargal, who at the outset examined the preliminary objection regarding maintainability, observing that the issue lies “at the very foundation of the matter”.
The petitioners sought declaring SRO 320 dated 31.08.1985 issued by the Secretary to Government Haj & Auqaf, along with all acts, deeds and revenue entries made pursuant thereto, as “bad in law, illegal, unconstitutional, null and void ab-initio”.
They also prayed for striking off revenue entries made in favour of Auqaf and for directions to retrieve lands and properties occupied by the Department of Haj and Auqaf, including land measuring 5 Kanals 13 Marlas comprised in Khasra No.1436 Shehar Khas Poonch.
According to the petitioners, the notification was issued without conducting proper enquiry under the provisions of the J&K Wakafs Act, 1978 and several lands and properties were included as Wakaf properties in an illegal and fraudulent manner.
The petitioners contended that Government lands and public utility properties, including Government Airfield Ground, Government Degree College ground, Government Media Complex, Government Parade Ground, Deputy Commissioner’s Office and residence, Government schools, PWD roads and other public lands, were wrongly declared as Wakaf properties.
However, the respondents submitted that SRO 320 dated 31.08.1985 was issued strictly in accordance with the provisions of the Wakafs Act after following prescribed statutory procedure and had attained finality after publication in the Government Gazette. The respondents also raised preliminary objections that the petitioners had no personal or legal interest in the properties and that the writ petition involved disputed questions of fact not amenable to writ jurisdiction.
After perusal of pleadings and material on record, the High Court held that the petitioners had neither pleaded nor demonstrated infringement of any legal, fundamental or statutory right. “The writ jurisdiction under Article 226 is meant for enforcement of legal rights and cannot be invoked at the instance of persons who are strangers to the dispute”, the High Court added.
“Mere assertion that petitioner No 1 belongs to a Sabha, petitioner No.2 is a social activist and petitioner No.3 is a prominent citizen does not confer any enforceable legal right,” the High Court held, adding “the petitioners failed to establish any legal injury or cause of action and therefore could not be treated as aggrieved persons”.
The High Court further found that the case involved serious disputed questions relating to nature, character and ownership of properties and validity of revenue entries, requiring appreciation of evidence, which cannot be undertaken in writ jurisdiction.
Relying on settled legal principles, the High Court observed that matters pertaining to Wakfs should be filed before the Wakf Tribunal constituted under law and not entertained straightaway under Article 226.
Another significant aspect noted by the High Court was the extraordinary and unexplained delay in challenging the impugned notification issued in 1985. Holding that writ jurisdiction is discretionary and equitable in nature, the High Court observed that a person who approaches the court after considerable lapse of time is not entitled to extraordinary relief and that “delay defeats equity”.
Entertaining such a belated challenge, the High Court said, would unsettle settled rights and legal positions. Accordingly, the writ petition along with all connected applications stood dismissed.
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