Amitava Roy, C.J. - (1.) HEARD Mr. S.K. Saksena, learned counsel for the petitioner. In assailment is the vires of Section 2(b)(viii) of the Rajasthan Public Premises (Eviction of Unauthorized Occupants) Act, 1964 (for short, hereafter referred to as 'Act of 1964').
(2.) HAVING regard to the challenge projected in the instant petition and the arguments advanced, it is inessential to dilate on the facts. The learned counsel has argued that Section 2(b)(viii) of the Act of 1964 is ultra vires being repugnant to Section 3(r) of the Wakf Act 1995 (for short, hereafter referred to as 'Act of 1995'). To appreciate the assailment Section 2(b)(viii) & Section 3(r) of the two enactments as above, are quoted hereinbelow: - - 2. Definitions. -.... (a).... (b) "Public Premises" - means any premises belonging to, or taken on leases or requisitioned by or on behalf of the State Government and industrial areas developed by the Rajasthan Industrial Mineral Development Corporation and other immovable properties constructed in such areas and includes any premises belonging to - (i).... (ii).... (iii).... (iv).... (v).... (vi).... (vii).... (viii) A Wakf as defined in the Wakfs Act 1954 (Central Act 29 of 1954) and entered in the register of wakfs maintained under Sec. 26 of that act; or.... 3. Definitions. -.... (r) Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes - (i) a Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) "grants", including mashrut -ul -khikmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) A Wakf -alal -aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable....
(3.) MR . Saksena has emphatically urged that having regard to the definition of 'Wakf' provided in Section 3(r) of the Act of 1995, and in particular, the concept of "Wakf -alal -aulad", the same could not have been drawn within the purview of "public premises" envisaged in Section 2(b)(viii) of the Act of 1964. Section 2(b)(viii) being thus repugnant to Section 3(r) of the Act of 1995, is liable to be declared ultra vires, he urged. The learned counsel, to buttress this plea, placed reliance on the decisions, amongst others, of the Calcutta High Court in Anis Fatma Begum v. Board of Wakf, West. Bengal, : AIR 2004 Calcutta 91.;