SYED LUTFULLAH SHAH Vs. A.W. KRIPAK, SUPTD. ENGINEER

JUDGEMENT

(1.) The only question involved in the case is whether the Ziarat Shah Farid-ud-Din Sahib and Ziarat Shah Israr-ud-Din Sahib situate in Kishtwar are wakfs as defined in the Wakfs Act, 1978. In case these are wakfs, their management will be under the wakfs Act and the question whether office of Sajjad Nisheen is heritable or not raised by the petitioner will be of academic interest only because management of such wakfs has to be under the wakfs Act. In order to answer this, it is necessary to make a brief reference to the history of Kishtwar which once happened to be an independent State before being annexed by Maharaja Gulab Singh in 1821 A.D. It is a matter of history that many of the rulers of this erstwhile small hill principality had converted to Islam. Raja Kirat Singh is said to have embraced Islam some where in 1681 AD. It is said that Shah Farid-ud-Din came to Kishtwar some where in 1664 and died in 1725 A.D. His son Shah Assarar-ud-Din it is said had died in 1685 A.D. Two Mausoleums were built at two different places where they were buried. Both these mausoleums are known as the Ziarats of Shah Farid-un-Din and Shah Assarar-ud-Din and are visited by thousands of devotees from all over the State especially on their death anniversaries falling on (7th Har and 25th Kartak) every year. While Urs of Shah Farid-ud-Din Sahib is a public holiday for Tehsil Kishtwar, Urs of Shah Assarar-ud-Din Sahib is a public holiday for the district of Doda. This speaks of the reverence the two saints are held by the people of the district.

(2.) It is admitted case of the parties that before the State intervened in exercise of the powers under the Wakfs Act by appointing Shri A.W. Kripak as administrator, both the Shrines were being managed by two Sajjad Nisheen namely, Syed Lutfullah Shah and Peer Nizam-ud-Din, the later having died during the pendency of these proceedings. Both of them challenged the appointment of the respondent-1 as administrator, Wakfs Committee Kishtwar mainly on the ground that they along with their other members of the family are Sajjad Nisheen of the shrines and this right under Mohammedan Law is hereditary. However, while the petition was pending the govt. issued notification under Section 6 of the Wakfs Act, 1978 vide SRO 619 of 1970 whereby list of wakfs of Kishtwar was published. This list included both the Ziarats. The petitioners challenged the notification by filing appeal under section 5(2) of the Wakfs Act which was rejected by the appellate authority on 30.4.1982. The petitioners amended the petition to challenge the report of the Special Officer dated 5.8.79, SRO 619 of 1979 dated 15.11.79 and the decision of the appellate authority dated 30.4.82 dismissing the appeal filed under Section 5(2) of Wakfs Act on the following grounds: - (1) that the Special Officer appointed under the Muslim Wakfs Act, 1959 had in his report dated 9.8.69 found that Ziarat Shah Isarar-ud-Din and Ziarat Farid-ud-Din are out of the purview of Wakfs Act and (2) this report has become final under section 61 of the Wakfs Act as no appeal was filed against it, (3) the report of the Special Officer dated 5.8.79 is based on no evidence as he neither invited objections nor heard the petitioners, (4) SRO 619 of 1979 is invalid as it is based on the report of Special Officer who did not follow the procedure prescribed under the Wakfs Act, (5) the declaration of shrines as wakfs is a mala-fide act of the respondents against their political rivals who are managing the shrines (6) the shrines are not wakfs because the land was granted by Hindu Raja of the time (7) the appeal has been dismissed only because respondent-3 is biased as the petitioners are his political rivals.

(3.) The stand of the respondent-Chairman, Wakf Committee, Kishtwar is that petitioner-1 was only a Manager of the Ziarat and his family members have no better right than he had in the wakf. It is also stated that the report of the Special Officer is in accord with the provisions of Wakf Act, 1978 and cannot be called in question. Both the Ziarats, it is further stated, have all along been held to be wakfs and the petitioners have no right of inheritance.