Single Judge Had Allowed The Writ ... vs State Of Uttarakhand & Others. The ...
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           IN THE HIGH COURT OF UTTARAKHAND
                             AT NAINITAL
       THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN

                                     AND

                 THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

              SPECIAL APPEAL NO. 150 OF 2021

                            07TH MAY, 2021

BETWEEN:

Uttarakhand Waqf Board & another                            .....Appellants.


And

Mausin & others                                          ....Respondents.

Counsel for the Appellants : Mr. T.A. Khan, learned Senior Counsel assisted by Mr. Vinay Bhatt.

Counsel for the respondents : Mr. K.N. Joshi, learned Deputy Advocate General with Mr. Yogesh Tiwari, learned Brief Holder for the State.

Mr. Rajendra Singh Azad, learned counsel for respondent no.1.

Mr. Nagesh Aggarwal, learned counsel for respondent no.2.

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

With the consent of the learned counsel for the

parties, namely, Mr. T.A. Khan, the learned Senior Counsel

for the appellants, Mr. Rajendra Singh Azad, the learned

counsel for the private respondent, Mr. Mausin and, Mr.

Nagesh Aggarwal, the learned counsel for respondent no.2,

the Nagar Panchayat, Piran Kaliyar, this appeal is being

decided at this stage itself.

2. The appellants have challenged the legality of the

order dated 26.03.2021, passed by a learned Single Judge, in

Writ Petition (M/S) No.773 of 2021, whereby the learned

Single Judge had allowed the writ petition filed by the writ

petitioner, Mr. Mausin, and had set-aside the advertisement

dated 19.03.2021 issued by the Waqf Board.

3. For the sake and convenience, the parties shall be

referred to as arrayed in the writ petition.

4. Briefly the facts of the case are that the petitioner,

Mr. Mausin, claimed to be an Elected Ward Member of Ward

No.2, Nagar Panchayat Piran Kaliyar. In order to safeguard

the interest of the Nagar Panchayat, he had filed the writ

petition, wherein he had challenged the advertisement dated

19.03.2021, issued by the Manager, Dargah Piran Kaliyar

(respondent no.3 before the Writ Court). The advertisement

was issued for inviting applications and tenders from various

persons and firms for granting the contract for running the

parking lot and Tehbazari (the area which is leased out for

petty shops and petty commercial activities to be carried out

by the people), which were scheduled to be constructed by

respondent no.3. The petitioner was of the opinion that the

parking lot and Tehbazari can be leased out only by the Nagar

Panchayat. And, more importantly, the parking lot fees can

be levied and collected only by the Nagar Panchayat.

Therefore, the petitioner filed the writ petition challenging the

legality of the advertisement dated 19.03.2021. The learned

Single Judge, as mentioned hereinabove, allowed the writ

petition, and quashed the advertisement dated 19.03.2021.

Hence, the present appeal before this Court.

5. Mr. T.A. Khan, the learned Senior Counsel

appearing for the appellants, (the respondent no.3 before the

Writ Court) has raised the following contentions before this

Court:-

Firstly, the subject property in question belongs to

the Dargah, and is, thus, a part of the waqf property. The

said land is neither vested in nor entrusted to the Nagar

Panchayat, the respondent no.2.

Secondly, the learned Single Judge has erred in

relying upon an interim order dated 05.04.2019, passed by a

learned Division Bench of this Court, in Special Appeal No.267

of 2019, Nagar Panchayat Piran Kaliyar & another vs.

State of Uttarakhand & others. The Special Appeal dealt

with the advertisement issued by the Waqf Dargah Sabir Pak

Piran Kaliyar, whereby the said Dargah wanted to lease out

certain properties, some of which were public properties

belonging to the Nagar Panchayat. Therefore, by interim

order dated 05.04.2019, the learned Division Bench had

prevented the Dargah from leasing out the said properties

without the permission of the Nagar Panchayat. However, the

said case of Nagar Panchayat Piran Kaliyar (supra) is

distinguishable on the factual matrix itself.

Thirdly, the present case is covered by the

Uttarakhand Municipalities Act, 1916. Section 293 of the

Uttarakhand Municipalities Act, 1916 empowers the

Municipality to charge fees for the use or occupation of any

immovable property vested in, or entrusted to the

management of the Municipality. However, as the subject

property is neither vested in, nor entrusted to the

Municipality, Section 293 of the Uttarakhand Municipalities

Act, 1916, would not cover the case.

Fourthly, the reliance placed by the petitioner on

Section 293A of the Uttarakhand Municipalities Act, 1916, is

highly misplaced. For, Section 293A of the Uttarakhand

Municipalities Act, 1916, is an enabling provision which

merely empowers the Municipality to levy fee for the use of

any place, to which the public is allowed access, and at which

the Municipality has provided sanitary and other facilities to

the public. But, the fees can be levied only after seeking the

previous sanction of the State Government.

According to the learned Senior Counsel, in the

present case, the question of the Municipality providing

sanitary and other facilities does not even arise. For, the

subject property is within the possession and ownership of

the Dargah. The facilities, if any, would either be provided by

the Dargah, or the lessee himself. Therefore, there is no

question of Municipality having to seek any prior sanction

from the State Government before levying any fees. Thus,

according to the learned Senior Counsel, reliance on Sections

293 and 293A of the Uttarakhand Municipalities Act, 1916, is

highly misplaced.

Fifthly, the reliance placed by the petitioner on

Section 293-B of the U.P. Municipalities Act, 1916, is rather

strange. For, the said Section was introduced in the said Act,

by way of an amendment in the year 2009. The said Section

does not exist in the Uttarakhand Municipalities Act, 1916.

Therefore, the said Section, from a different statute, cannot

be imported into the Uttarakhand Municipalities Act, 1916.

Sixthly, Rule 19 of the Waqf Properties Lease Rules,

2014 ('the Rules, 2014' for short), empowers the Waqf Board

to lease out any immovable waqf property for certain

purposes. Under Rule 19(i) of the Rules, 2014, the Waqf

Board may lease out the immovable property for the purpose

of shops.

Since the subject property belongs to the Waqf

Board, the Dargah is empowered to lease out its property for

shops. Even, according to Rule 21 of the Rules, 2014, it is the

lessee who needs to seek prior permission of the local body

for raising the construction. Therefore, the burden of seeking

prior permission does not lie on the Dargah, but would lie on

the lessee to whom the property is leased by the Dargah.

Therefore, the learned Single Judge is unjustified in

concluding that the Dargah would need the prior

authorization by the Nagar Panchayat. Hence, according to

the learned Senior Counsel, the impugned order deserves to

be set-aside by this Court.

6. On the other hand, Mr. Nagesh Aggarwal, the

learned counsel for the Nagar Panchayat, Piran Kaliyar, the

respondent no.2, has raised the following counter-

contentions:-

Firstly, Article 243-W of the Constitution of India

grants the State Legislature the power to endow the

Municipalities with such powers and authority as may be

necessary to enable them to function as institutions of self-

government. The State Legislature is further empowered to

enact such laws which may contain provisions for devolution

of power and responsibilities upon the Municipalities in

general, and in two areas, in particular, namely, (i) the

preparation of plans for economic development and social

justice; (ii) the performance of functions and the

implementation of schemes as may be entrusted to them

including those in relation to the matters listed in the Twelfth

Schedule of the Constitution.

Referring to the Twelfth Schedule, the learned

counsel submits that the Twelfth Schedule deals with

"regulation of land use and construction of buildings".

Therefore, the Municipality is empowered to levy the charge

on the parking lot, and to collect the parking fees.

Secondly, Section 293 of the Uttarakhand

Municipalities Act, 1916, itself empowers the Municipalities to

charge fees for the use or occupation of any immovable

property.

Since the parking lot and the Tehbazari would be

constructed on an immovable property, therefore, under

Section 293 of the Uttarakhand Municipalities Act, 1916, the

Municipality would be justified in claiming that it has the

power to charge the fees on the parking lot.

Thirdly, Section 293A of the Uttarakhand

Municipalities Act, 1916, further grants the power to the

Municipality to impose fees on the use of 'any place to which

the public is allowed access'. Since the public would be

allowed access to the parking lot, and the Tehbazari, the

Municipality is equally justified in claiming that it has the

power to levy the fees and to collect the same.

Fourthly, even if the property is vested and is

owned by the Dargah, even then the Municipality has the

power to levy the fees and to collect the same. For, it is for

the Municipality to supervise and control the number of

persons coming to the Dargah, to provide facilities for the

devotees to the Dargah, and to ensure their safety and

security while Urs Mela is organized by the Dargah.

Therefore, the petitioner, as an Elected Ward Member of

Ward No.2, Nagar Panchayat Piran Kaliyar, is justified in

claiming that the Municipality has the right to collect the

parking fees, instead of the Dargah doing so.

Lastly, even if Section 293-B of the U.P.

Municipalities Act, 1916 does not exist in the Uttarakhand

Municipalities Act, 1916, the fact that the said provision exists

in the U.P. Municipalities Act, 1916, the said provision can be

taken as "an external aid". Therefore, the petitioner was

justified in relying upon Section 293-B of the U.P.

Municipalities Act, 1916. Hence, the learned counsel has

supported the impugned order.

7. Mr. Rajendra Singh Azad, the learned counsel for

the private respondent (the petitioner before the Writ Court),

has adopted the arguments of Mr. Nagesh Aggarwal, the

learned counsel for the Nagar Panchayat. Thus, the same

need not be reproduced in the judgment.

8. Heard the learned counsel for the parties, perused

the record, and examined the impugned order.

9. Admittedly, the subject property belongs to the

Dargah, as it is a parcel of land which is attached to the

Dargah. Thus, the subject property is neither vested in, nor

entrusted to the Nagar Panchayat, the respondent no.2. In

fact, the property is a waqf property which has been

dedicated under a Waqfnama to the Almighty. Even the

Management Committee is merely a trustee of the property.

10. In order to resolve the controversy, it is

appropriate to reproduce the relevant provisions of law.

11. Article 243-W of the Constitution of India is as

follows:-

"243W. Powers, authority and responsibilities of Municipalities, etc.--Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow--

(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to--

(i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;

(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule".

12. A bare perusal of the said Article clearly reveals

that it is an enabling provision which bestows the power upon

the legislature of the State to endow the Municipalities with

such powers and authority as would make the Municipalities

as institutions of self-government. The law, so enacted, may

contain provisions for devolution of powers and

responsibilities. More specifically dealing with the preparation

of plans for economic development and social justice, and for

the performance of functions and the implementation of

schemes as may be entrusted to them including those areas

which are contained in the Twelfth Schedule.

13. Section 293 of the Uttarakhand Municipalities Act,

1916 reads as under:-

"293. Fees for use, otherwise than under a lease of municipal property. - (1) The Municipality may charge fees to be fixed by bye-law or by public auction or by agreement, for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the Municipality including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.

(2) Such fees may either be levied along with the fee charged under Section 294 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI."

14. A bare perusal of the said provision clearly reveals

that the Municipality is empowered to charge fees for the use

or occupation (otherwise than under a lease) of any

immovable property "vested in or entrusted to" the

management of the Municipality. Therefore, the first

requirement of Section 293 of the Uttarakhand Municipalities

Act, 1916 is that the property should be either vested in, or

entrusted to the Municipality.

15. Section 293A of the Uttarakhand Municipalities Act,

1916 reads as under:-

"[293A. Power to impose fees. - A] Municipality may with the previous sanction of the State Government impose and levy fee for use of any place to which the public is allowed access and at which the Municipality may provide sanitary and other facilities to the public".

16. A bare perusal of this provision clearly reveals that

it is an enabling provision. For, it enables the Municipality to

levy fees for the use of any place to which the public is

allowed to access, and at which the Municipality may provide

sanitary and other facilities to the public. However, there are

two aspects of this provision. Firstly, before such imposition

of fees can be levied by the Municipality, it requires previous

sanction of the State Government. Secondly, since the word

'and' has been used, the place which is being used by the

public, should be provided either with sanitary or with other

facilities for the public.

17. Interestingly, the Uttarakhand Municipalities Act,

1916, does not contain any provision similar to Section 293-B

of the Act, 1916.

18. Rule 19 of the Rules, 2014 is as under:-

"19. Purpose and period of lease.- (1) The Board may give on lease any immovable waqf property for the purposes and for the period relating thereto as under, namely:-

(i) for shops, lease shall be granted for a period of up to five years;

(ii) for cold storages, marriage halls or small industries, lease shall be granted for a period of up to ten years;

(iii) for establishing or running of shopping malls, residential buildings, hotels, restaurants or Inns, lease shall be granted for a period of up to thirty years;

(iv) for establishing or running educational institutions like schools, colleges, universities, hospitals, dispensaries, madarasa's or maktabs, lease shall be granted for a period of upto thirty years;

(v) for agricultural purposes, the lease shall be granted on year to year basis or until the life of the crop in case the crop has a life span of more than one year, but no lease for

agricultural purposes shall be granted for a period exceeding three years in any case.

(2) The commencement date of the lease shall mean the date of execution of lease deed or the effective date of lease mentioned in the lease deed".

19. Rule 20 of the Rules, 2014 is as under:-

"20. Use and occupation of leased property.- (1) The lessee shall not use or permit to be used the leased premises or any part thereof for any other purpose other than the purpose agreed between the parties:

Provided that no waqf property shall be given on lease for purposes which are against sharia such as gambling or lottery or sale of liquor or other intoxicants.

(2) The lessee shall not build any structure on the leased premises without due approval of the Board: Provided that any structure build by the lessee without due approval of the Board shall become the property of the waqf and the lessee shall not be entitled to any compensation for the expenses incurred in building such structure.

(3) The lessee shall maintain the leased premises and keep the property in good order and condition and remove all debris and garbage from the leased premises".

20. Rule 21 of the Rules, 2014 is as under:-

"21. Rights and Obligations of the lessor and lessee.- (1) The rights and liabilities of the lessee shall include the following, namely:-

(i) Operation of leased premises.- The lessee shall assume full responsibility for the operation and maintenance of the leased premises and for the repair or replacement of all fixtures located therein or thereon and to pay all expenses incurred in connection with such maintenance and operation of the leased premises:

Provided that the lessor may, upon failure to discharge such responsibility by the lessee under this clause, at its sole option and upon fourteen days prior written notice and without any obligation to the lessee, elect to perform such maintenance, repairs or replacement as the lessor may reasonably deem necessary or desirable.

(ii) Access by lessor.- The lessee shall permit the lessor to enter the leased premises at any time outside normal hours in case of an emergency and otherwise, where such entry will not unreasonably disturb or interfere with the lessee's use of the leased premises.

(iii) Lessee to carry out certain obligations.- The lessee shall,-

(i) promptly pay electricity charges, water charges or any cess, levies, duties, assessments, and license fees whatsoever whether municipal, school, provincial, parliamentary or otherwise;

(ii) upon the request of the lessor, promptly deliver to the lessor for examination all receipts for payment of such levies, duties, assessments and license fees;

(2) Installation of fixtures or improvements.- If any installation or repair work carried out by the lessee interferes with or damages the mechanical or electrical systems or the structure of the leased premises, the lessee shall promptly repair or remove such installations or fixtures on the leased property at its own expense:

Provided that the lessee shall, if required by the lessor, remove any leasehold improvements or fixtures from the leased premises upon the termination of the lease.

(3) Alterations by lessee.- The lessee shall bear the cost for making any modification, additions or improvements including alterations to the exterior walls, roof, or other structural components of the leased premises made by the lessee:

Provided that the lessor shall perform any such work at the expense of the lessee as may be mutually agreed between the parties.

(4) Liens.- The lessee shall not create any lien or encumbrance on the leased premises under any circumstances including on the leasehold rights.

(5) Permission from local authorities.- The lessee shall, for the purpose of construction of any structure on the leased premises, take all necessary permission from the local authorities, after prior approval of the Board".

21. A bare perusal of these provisions clearly reveal

that the Waqf Board does have the power to lease out any of

the immovable properties for certain purpose, which are

enumerated in Rule 19(i) to (v) of the Rules, 2014.

22. Rule 20 of the Rules, 2014 imposes prohibition on

the use and occupation of leased property and prohibits the

lessee from using the property for any purpose other than the

purpose agreed upon between the parties. Moreover, it

imposes the ban that no waqf property shall be given on

lease for purposes which are against 'shariat' such as

gambling, or lottery, or sale of liquor, or other intoxicants.

Furthermore, Rule 20(2) prohibits the lessee from raising any

structure on the leased premises without due approval of the

Board.

23. Rule 21(1) of the Rules, 2014 deals with the rights

and liabilities of the lessee and the powers of the lessor. A

bare perusal of Rule 21(5) clearly reveals that it is the

responsibility of the lessee to seek necessary permission from

the local authorities, prior to raising any construction of any

structure on the leased premises. Therefore, the

responsibility to seek such a permission, has not been

imposed upon the lessor, but has been imposed, singularly,

upon the lessee.

24. The issue before this Court is whether the power to

levy fees on the parking lot lies with the Nagar Panchayat or

with the Dargah?

25. Mr. Nagesh Aggarwal, the learned counsel for

Nagar Panchayat, has vehemently relied upon Article 243-W

of the Constitution of India. However, as mentioned

hereinabove, the said Article is merely an enabling provision

bestowing the powers on the State Legislature to enact laws

which would make the Municipalities as institutions of self-

governance. However, the said Article does not necessarily

bestow power on the Municipalities to levy and collect fees

unless such a power is given to the Municipalities under the

Municipalities Act. Therefore, reliance on Article 243W of the

Constitution of India is misplaced.

26. Mr. Nagesh Aggarwal, the learned counsel for

respondent no.2, has relied on Section 293 of the

Uttarakhand Municipalities Act, 1916, to argue that the power

to levy the fees is bestowed upon the Nagar Panchayat.

However, such an argument is highly misplaced. For, Section

293 requires that the property must be "vested in" or

"entrusted with" the Municipality. However, admittedly, in the

present case, the property is neither vested in, nor entrusted

with the Municipality. The property, in fact, belongs to the

Dargah. It is entrusted with the Management Committee of

the Dargah. Therefore, neither the petitioner, nor the Nagar

Panchayat can claim that it is the Nagar Panchayat that has a

right to impose the parking lot fees and to collect the same.

27. Mr. Nagesh Aggarwal, the learned counsel for

respondent no.2, is unjustified in claiming that Article 243-W

of the Constitution of India, empowers the Nagar Panchayat

to levy the parking lot fees, and to collect the same. In fact, it

is under Article 243-W that the Municipality Acts are enacted

by the State Legislature. However, a bare perusal of Section

293 and its analysis, clearly reveal that the Municipality has

the power to levy fees only on that immovable property,

which is "vested in" or "entrusted with" the Municipality.

Therefore, the cover of Article 243-W of the Constitution of

India, cannot be stretched to the point that the Municipality

starts claiming that it has the power to levy fees on those

immovable properties which are neither vested in, nor

entrusted with it. Hence, the reliance placed on Article 243-W

of the Constitution of India, is unacceptable.

28. A bare perusal of Rule 21(5) of the Rules, 2014

also reveals that it is for the lessee and not for the Dargah to

seek prior permission of the local body. Moreover, the

permission is required only if the construction of any

structure, on the leased premises, is to be raised. Therefore,

Mr. Nagesh Aggarwal, the learned counsel for respondent

no.2, is unjustified in claiming that under Rule 21(5) of the

Rules, 2014, the Dargah should have sought or should seek

prior permission of the Nagar Panchayat.

29. Reliance placed by the learned Single Judge on the

interim order passed in the case of Nagar Panchayat Piran

Kaliyar (supra), is equally misplaced. For, the said case, as

pointed out above, dealt with some properties which were

properties belonging to the Nagar Panchayat. However, in the

present case, the subject property does not belong to the

Nagar Panchayat. Therefore, the interim order passed in the

said case is distinguishable on the factual matrix itself.

30. A bare perusal of the relevant provisions of law,

mentioned hereinabove, clearly reveal that as long as the

property belongs to the Dargah, and is a waqf property,

which is neither vested in, nor entrusted with the Nagar

Panchayat, the Dargah would be free to levy the fees on the

parking lot. The power to levy the fees, and to collect the

same is not bestowed upon the Nagar Panchayat. Therefore,

the appellants were justified in issuing the advertisement

dated 19.03.2021.

31. For the reasons stated above, the appeal is

allowed. The impugned order dated 26.03.2021, passed in

Writ Petition (M/S) No.773 of 2021, is set-aside.

32. No order as to costs.

(RAGHVENDRA SINGH CHAUHAN, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 07th May, 2021 NISHANT