A Single Bench of Justice Javaid Iqbal Wani  while adjudicating a Petition under Article 226 of the Constitution held that once a land is declared as a Wakaf Land by the Government, the provisions of the Wakaf Act, 1978 (hereinafter referred to as “Act of 1978”) become applicable to the land in question in-extenso, and the transfer of such land -Wakaf property in terms of Section 52 of the Act of 1978 has been forbidden.

The Court was dealing with a matter where the Petitioners had thrown challenge to SRO-95 issued by the Respondents by virtue of which the land of the Petitioners was notified as Wakaf Property. The case of the Petitioners broadly, was that the land (in question in the petition) was an evacuee land allotted to Respondent No. 6, being a refugee of 1947, which was followed by attestation of mutations in his favor, and conferment of occupancy rights under Section 3-A of the J&K Agrarian Reforms Act, 1976 (hereinafter referred to as “Act of 1976”). Thereafter, Petitioners purchased the occupancy rights of the said land by virtue of a sale deed whereupon a mutation also came to be attested in their favor. Therefore, the petitioners contended that SRO-95 was illegal and without any jurisdiction.
The Respondents controverted the case of the Petitioners, inter-alia, on the ground that land in question is a notified land under the Act of 1978 and in fact used to be taken by the petitioner 1 and his father from Kharief 1994 up to Rabi 1997 from the official respondent on auctions, and that upon notifying the said land in question as a Wakaf property in terms of SRO-95, the same stands published in the Govt. Gazette, the provisions of the Act of 1976 were not applicable to the same.
The Court while dealing with the core issue, that is, notifying the land in question as Wakaf Property by the Respondents, elucidated upon the provisions of the Act of 1978 and the procedure for notifying a land as Wakaf Property, and observed, “a property is to be declared as a Wakaf property after the Govt. had received a report of inquiry in this regard from the Special Officer appointed under Section 4 of the Act of 1978, which report of the Special Officer under section 5 of the Act of 1978 is the final decision thereon providing for a remedy of appeal against thereto the said decision before the Govt. within 60 days from the date of the order and under Section 6 of the Act of 1978, the Govt. is to publish the list of the Wakafs in the Govt. Gazette.”
Noting that the aforesaid procedure had been followed by the Government in the case at hand, the Court observed that the land has been declared as Wakaf land by SRO-95, and as such, the provisions of the Act of 1978 shall apply in-extenso to said land.
Thereafter, addressing the ground of the Petitioners as to execution of a sale deed qua the land in question, the court observed that in terms of Section 52 of the Act of 1978, transfer of Wakaf land is forbidden. Though the Court held that in terms of Section 3-A of the Act of 1976 transfer of the occupancy rights by sale, mortgage or gift are permissible, however, it observed that Wakaf Act, 1978 having an overriding effect over any other law for the time being in force as per Section 54, the provisions Section 52 ‘shall prevail over all other laws for the time being in force, including herein in the instant case the Agrarian Reforms Act of 1976’.
The Court, thus, held that the provisions of Section 52 of the Act of 1978 render the sale deed by the respondent 6 herein in favor of the petitioners as “legally insignificant, ineffective and inoperative”. Further noting that there is no ground urged whereunder SRO-95 could be challenged, it held that the challenge thrown to the said SRO pales into insignificance.
Therefore, the Court, in light of the law laid down by the Apex Court in “M/s Prestige Lights Ltd. Vs State Bank of India” reported in 2007 (8) SCC 449” declined to intervene under Article 226 of the Constitution, and hence, dismissed the Petition.