MALIK JAMIL AHMED Versus AUQAF DEPARTMENT ETC.

ORDER

This is a revision petition against the order dated 23‑1‑1971 of the Commissioner, Karachi, whereby he rejected the petitioner's review petition regarding grant of plot measuring 600 sq. yards in Liaqatabad, Karachi.

2. The facts of the case are that an area of 3600 sq. yards was sanctioned by the Collector and District Magistrate, Karachi, vide his Order No. R‑4171, dated 26‑8‑1951 to one Musharaf Ali for constructing a mosque and mosque constructed was called "Nayab Masjid". Same more area was occupied unauthorisedly and 47 shops constructed thereon. It is alleged by the petitioner that some portion from the land thus unauthorisedly occupied by the Management of the mosque was rented out by them to the petitioner and the petitioner had raised construction thereon and started doing business of sweet‑meats. The petitioner also claims to have occupied some vacant space behind his shop and states that the Secretary of the Management had approached him to handover the space so occupied by him for construction of a hujra and that he handed over the space to him for the purpose but the Secretary instead of constructing hujra, rented out the piece to Ahmed Halwai. The petitioner then approached the revenue authorities for grant of the land which was apart from the area sanctioned in favour of the mosque and the Collector, Karachi after enquiries etc., passed an order dated 24‑8‑62 on the office note which inter alia read as follows:‑

Office Note:

"The Magistrate may be authorised to issue notices under section 7 of the Land Control Act have the wall demolished and thereafter grant the land to Jamil Ahmed . . . . .

Minute of D. C. As proposed.

(Sd.) D. C.

24‑8‑1962."

The unauthorised occupants were accordingly issued eject ment notices by the Deputy Commissioner, Karachi, vide his No. Rev./1184, dated 12th June 1963. One Muhammad Ramzan proprietor of Cafe Embassy, filed an appeal to the Commissioner on his behalf and on behalf of others against the ejectment notices and finally the Commissioner, Karachi, passed the following order on 17‑2‑1965:‑

"Parties present and heard. The case is remanded to the: Deputy Commissioner, Karachi, to decide whether the land Ins: dispute has been allotted to the mosque or not.

(Sd.) Roedad Khan,.

17‑2‑65".

The Deputy Commissioner, Karachi in reference to the order of the Commissioner dated 17‑2‑65 recommended vide his letter No. NCSO/1401/65, dated 11‑8‑65 that the area of 600 sq. yards was apart from the 3600 sq. yards granted to the mosque and that an additional area of 600 sq. yards had also been taken over by the mosque and the mosque had been built from the income derived from the shops and that the area may, therefore, be granted to the mosque as it is already in their possession since 1953‑54. He also recommended that in view of the fact that income realised has gone to the construction of the mosque, the payment of market value of the area which is occupied by the shops may not be insisted. The office of the Commissioner, Karachi, called for the sketch of the area from Deputy Com missioner vide its letter No. 21/31/63‑Rev., dated 16th November 1966 and reminded Deputy Commissioner on 13th January 1967, 17th May 1967 and 7th June 1967 and a report was received from Deputy Commissioner vide his No. NCSO‑1158, dated 3‑7‑67. It did not contain the sketch earlier called for by the office of the Commissioner and a back reference was made to the Deputy Commissioner, Karachi, vide letter No. 21/31/63‑Rev., dated 19th July 1967. The office of the Deputy Commissioner was again reminded on 16th January 1968 and the sketch was received in the office of the Commissioner on 13th January 1968. A back reference was made to the Deputy Commissioner by the office of the Commissioner, Karachi, under its letter No. 21/31/63‑Rev., dated 20th January 1968 calling for the following information:‑

(i) The entire area already allotted for the Nayab Masjid alongwith a copy of the grant order.

(ii) The total shops constructed in the allotted area already allotted and its market value.

(iii) Whether the Nayab Masjid authorities are prepared to pay the market value of the area at (ii) above.

(iv) The area covered by shops shown in the sketch in blue colour may also be given and a list of the occupants of these shops may be furnished. It may also be stated whether these shop‑keepers have any authority for constructing the shops. If so, a copy of such authorisation may also be furnished.

3. The question for grant of the land to the petitioner was, examined by the office of the Commissioner, Karachi, vide its note dated 18‑1‑68 wherein it was stated that the land (600 sq. yds.) applied for by the petitioner was apart from the 55 shops con structed and encroached upon by the mosque Committee and the Additional Commissioner, Karachi, recorded the following minute on the office noting on 31‑1‑68:‑

"Deputy Commissioner may be reminded to expedite the case regarding the grant made for the mosque. If this land is out of the area granted to the mosque, the previous order may be implemented as proposed in the office note."

The file was called for by the Commissioner, Karachi, who passed the following order:‑

"It seems in 1962 the then Commissioner had refused to interfere in this case. Later another Commissioner remanded it to Deputy Commissioner, Karachi. The case is a bit involved and therefore, it would be advisable to take the decision after hearing all the parties concerned. This case as well as the case relating to the grant of 600 sq. yards to the mosque may be sent to the Reader for summoning the parties at a very early date. Meanwhile Deputy Com missioner, Karachi, may be asked to expedite reply to the queries raised by this office vide its letter dated 20‑1‑68.

(Sd.) Darbar Ali Shah

14‑2‑68."

4. The Management of the land measuring 3600 sq. yards of the Nayab Mosque and 47 shops constructed thereon was taken over by the Auqaf Department vide its Notification dated 14‑2‑68. The Commissioner, Karachi, heard the parties on 8‑6‑68 and summoned the representative of the Auqaf Depart ment in the case. In the meanwhile the Auqaf Department also amended their previous notification vide Notification dated 27‑7‑68 and instead of 47 shops, Management of total 84 shops (which obviously included the shops constructed on the disputed land) was taken over by them. The Commissioner, Karachi, finally vide hits order dated 24‑8‑68 held that petitioner had no title over the disputed plot of 600 sq. yards and sanctioned it in favour of the Mosque. Petitioner submitted a review petition which was admitted for hearing by the Commissioner, Karachi (Syed Darbar Ali Shah) vide his orders dated 21‑9‑68 and 23‑1‑69. The petitioner made a representation to the Commissioner Karachi (Mr. Masood Nabi Noor. C. S. P.) on 7‑4‑69 and on the office noting, Mr. Masood Nabi Noor, C. S. P., Commissioner, Karachi passed the following order on 1‑5‑69.

"I see no reason to interfere with the orders of Additional Commissioner already passed:

The other party went to the High Court and the case was remanded to the Commissioner for fresh decision on the ground that the order was passed without hearing the parties. The Commissioner, Karachi, (Mr. Masood Nabi Noor, C. S. P.,) vide his order dated 23‑1‑71. then refused to interfere with the order dated 24‑8‑68 passed by the then Commissioner, Karachi (Mr. Darbar Ali Shah, C. S. P.) whereby the land was granted to the mosque.

5. Sayed Ansar Hussain Bukhari had submitted application on 18‑9‑71 requesting for being impleaded as a party in the case. He was allowed to address his arguments and the question of impleading him as party was deferred for orders at later stage.

(1) On 28‑6‑1951, an area of 3600 sq. yards was sanctioned to Haji Mushraf Ali for construction of the mosque and not t for any commercial purposes as is evident from the letter of sanction of the grant. Mosque was constructed in 1952 on some portion of the land and some encroachments were male by the so‑called management of the mosque. Some portions from the area encroached up ‑n were given to some persons, who raised construction over these portions. A portion out of the area encroached upon was also given to the petitioner by them and he also raised construction over it. 'The portion was given to the petitioner under the assumption that it formed part of the area of 3600 sq. yards actually sanctioned for the mosque but it subsequently transpired that the portion given to the petitioner was not from the area actually granted for the mosque. In addition to this construction, the peti tioner occupied the vacant plot lying behind the plot. In 1957, Mr. Bukhari requested for that plot for construction of hujra for moazin and the petitioner gave it to him for that purpose but Mr. Bukhari rented out the same to Mr. Ahmed Halwai instead of constructing a hujra. The petitioner h‑id occupied the portion behind the construction not under valid authority but this portion was not part of 3600 sq. yards sanctioned for the mosque. There was no construction of the petitioner over the space so occupied by him. Ahmed Halwai raised a construction over it and gave it to Embassy Hotel, who is in the picture now. This all happened in 1957.

(ii) Detailed Enquiry was held by S. D. M. Civil Lines who vide his report dated 25‑5‑1962 recommended for allotment of .600 sq. yds. to the petitioner. Deputy Commissioner allotted the area to the petitioner vide his order dated 24‑8‑1962. On 5‑6‑1963, demolition of unauthorised structures was ordered but the Embassy Hotel filed a civil suit and got interim Injunction but subsequently the injunction application was dismissed. The Embassy Hotel went in appeal and interim injunction was issued.

(iii) Mosque Management and unauthorised occupants filed appeals to the Commissioner. The Commissioner remanded the case to find out whether the disputed plat was part of 3600 sq. yds. sanctioned to the mosque. The Deputy Com missioner stated that the mosque Management had encroached upon the land beyond their grant. The Deputy Commissioner vide his report dated 11‑8‑1965, reported that the excess area may be granted to the mosque. Proposal was illegal as it was not in conformity with the directions of the Commissioner and consequently the Deputy Commissioner went beyond the order of the remand. No decision was made on this reference by the Commissioner (the counsel for the Auqaf Department challenged this statement and stated that this proposal was accepted by Sayed Darbar Ali Shah the then Commissioner in his order dated 24‑8‑1968).

(iv) The petitioner went on applying for the disputed land. On 3‑10‑1967, Board of Revenue reminded the Commissioner and the Additional Commissioner vide his order dated 31‑1‑1968, again directed that the previous order granting the land to the petitioner may be implemented. The Addi tional Commissioner used to deal with the cases of this nature and he had concurrent jurisdiction and was exercising the powers of Commissioner.

(v) Mr. Darbar Ali Shah, the then Commissioner, Karachi, made a telephone call to his Assistant and called the file. There was no application before him. The Commissioner had no jurisdiction to open the case and he could review the order of the Additional Commissioner only with the prior approval of the Board of Revenue but the approval was not obtained.

(vi) The area of 3600 sq. yds. sanctioned to the mosque has been taken over by the Auqaf Department on 19‑3‑68. The land was demarcated by the Survey Department in October 1967. According to the interim order dated 13‑7‑68 of the Commissioner, Karachi, the disputed land does not form part of the grant of mosque. The Auqaf Department issued a subsequent notification whereby they included the pro perties under their Management, which was constructed beyond the area of 3660 sq. yds. actually sanctioned for the mosque.

(vii) The order of the Commissioner dated 24‑8‑1968 is not proper and the conclusions have been drawn without proper justification.

(viii) The petitioner's review petition was admitted on 23‑1‑1969. The Commissioner set aside the order dated 24‑8‑1968 vide his order dated 1‑5‑1969.

(Note.‑The counsel for the respondent stated that the order dated 1‑5‑69 was passed by the Commissioner without hearing the parties on the miscellaneous application dated 7‑4‑69 of the petitioner without disclosing the fact that the order dated 24‑8‑1968 was passed by the Commissioner against him. The representative of the State confirmed that no order had been passed on the review petition of the petitioner).

The order dated 1‑5‑1969 passed by the Commissioner had been set aside by the High Court. The petitioner had however, deposited the lease money and ground rent of land in respect of 600 sq. yds.

(ix) The petitioner bases his claim on the order dated 24‑8‑1962 allotting the land to him. Auqaf Department is not competent to purchase lands and could manage the properties, which were already Auqaf properties and no now Waqf can be created by them vide section 6 of the West Pakistan Waqf Properties Ordinance, 1961.

(x) According to order dated 10‑12‑1968, the powers of the Government, which vested in the Commissioner of Karachi, had been withdrawn and the Commissioner, Karachi was not competent to grant the land to the Auqaf Department.

B.‑Counsel for the Auqaf Department;‑

(i) The site was inspected by the Commissioner, Karachi. The structures on the disputed land are Waqf property. A` According to report dated 11‑5-65, the disputed land has remained in the possession of the mosque. Although there was no valid order from any competent authority granting land to the mosque yet the occupation was bona fide as the management committee consisted of officials and was appointed by the Deputy Commissioner and the plot Was 'occupied by that Committee.

(Note.‑The counsel for Mr. Bukhari contended that D. R. C. was competent to allot piece and since he was the member of the Committee, the occupation of the plot could be termed as legal. He, however, conceded that no regular allotment order was issued for the area).

(ii) The notification issued by the Auqaf Department under section 6 of the Ordinance could only be questioned by the interested party under section 7 of the Ordinance in District Court and the High Court. The District Court has already held the notifications as valid and the petitioner has filed an appeal in the High Court which is pending,

(iii) The petitioner was inducted into the plot by the mosque management and he was estopped from questioning the title of the mosque. The plots are very valuable plots.

(iv) The revision petition before the Board of Revenue is time‑barred as the impugned order was passed by the Commis sioner on 24‑8‑68 and the revision petition has been filed in May 1971.

(v) The dispute is between the petitioner and the Auqaf Department. The petitioner claims that the plot belongs to him and that Auqaf Department has no titled to it. The petitioner cannot question the title of the mosque as he is estopped from it vide P L D 1968 S C 342. Rent was paid by the petitioner to the mosque from 1954 to 1962 for 8 years (para. 4 of the petition to the District Judge and Annexure A to the Auqaf Department's objection application referred).

(vi) At no stage the plot of 600 sq. yds. was allotted to the petitioner. In 1959, the petitioner had filed an application to the District Magistrate that plot behind the mosque may be granted to him (Appendix B to the objection petition of Auqaf Department). In para. 4 of the petition he had admitted that the plot was property of mosque. Element of 600 sq. yds. was brought in for the first time in the office note put up to the Commissioner for setting aside the order dated 24‑8‑68 earlier passed by Syed Darbar Ali Shah C.S.P., the then Commissioner, Karachi.

(vii) It is not a fact that the petitioner had given the area which was in his possession for construction of hujra as alleged by him as 600 sq. yds. cannot be given for hujra. Besides, there were 37 shops over the disputed land and the petitioner could not be in possession of the area.

(viii) There were two claimants the petitioner and the mosque committee‑before the Commissioner, Karachi and he decided in favour of the Mosque Committee. Auqaf Department is ready to pay the cost of the land.

(ix) The Auqaf Department can take up lease of the land as the words "maintain, control and manage" used in section 6 of the Ordinance include taking up of lease and taking all such actions as are necessary for protection of the mosque. Construction raised on the disputed plot was from public contributions and is Waqf vide Explanations 3 & 6 below section 2 of the Auqaf Ordinance. Management includes rights to take up leases vide meaning contained in the judicial dictionary Vol. III (Extract supplied by the counsel). The Auqaf Department is successor to the Committee and if it cannot take up lease of the land, it cannot protect the property. The main gate of the mosque is situated in the disputed land.

7. The Government pleader was also consulted with regard to the position of the Government in this case. He submitted his opinion in writing and suggested that if the matter before the High Court was whether the disputed area should or should not, could or could not be transferred to the mosque, Govern ment should become party for contesting that matter before the High Court as the question was beyond the scope of section 7 of the West Pakistan Waqf Properties Ordinance, 1961.

8. I have considered the arguments of the parties, seen the record and in deference to the wishes of both the parties and their counsel, I have also visited the site. It appears from the perusal of the file of the office of Deputy Commissioner, Karachi, that he had passed an order on 24‑8‑1962 recommending grant of the land to the petitioner after demolishing of the wall etc. The Commissioner Karachi remanded the case to the Deputy Commissioner, Karachi, vide his order dated 17‑2‑1965, directing him to indicate whether the land in dispute had been allotted to the Mosque. The Deputy Commissioner, Karachi, after making necessary enquiry forwarded his report to the Commissioner vide his No. NCSO/1401/65 dated 11‑8‑1965 for necessary orders. The Deputy Commissioner did not give any opportunity to the parties of being heard before arriving at the findings contained in his report dated 11‑8‑65. No orders appear to have been passed by the Commissioner, on the report of the Deputy Commissioner but certain queries were raised by the office of Commissioner, Karachi vide its letters No. 21/31163‑Rev., dated 16‑11‑1966 and No. 21/31/63‑Rev., dated 20‑1‑1968.

9. In another file about the request of the petitioner for grant of the land, the Additional Commissioner, Karachi, recorded the following minute on 31‑1‑1968:‑

"Deputy Commissioner may be reminded to expedite the case regarding the grant made for the mosque. If this land is out of the area granted to the Mosque, the previous order may be implemented as proposed in the office note."

The order of the Additional Commissioner, Karachi, required that the previous orders in favour of the petitioner may be implemented as was proposed in the office note as the area required by him according to this office note was beyond the area granted to the mosque. Here I find that there was good deal of lack of co‑ordination between the offices of the Deputy Commissioner, Karachi and the Commissioner, Karachi. The report dated 11‑8‑1965 of the Deputy Commissioner, Karachi, clearly indicated that the disputed land was under the occupation of the mosque committee and that the income from it was being utilized for the maintenance of the mosque, but the note of the office of the Commissioner. Karachi on which minute dated 31‑1‑1968 was passed by the Additional Commissioner, Karachi indicated that if the disputed land was granted to the petitioner, ft will not affect the case of the Mosque Committee. I fail to understand how the Mosque Committee would not be affected by the grant of the land to petitioner when, according to the report of the Deputy Commissioner, Karachi, the income of the land was being enjoyed by them. Besides, it is also difficult to appreciate how such orders affecting the rights of the people were passed without giving any opportunity to the parties of being heard and why it was considered necessary to pass judicial orders on the basis of office notes. The order of the Additional Commissioner, Karachi, was, however, called in question by the Commissioner, Karachi, who called the file, heard the parties and passed 4n order dated 24‑8‑1968 granting the land to the Mosque. Although the Commissioner had followed the correct course of affording opportunity of being heard to all concerned yet the order passed by him amounted to setting aside the order dated 31‑1‑1968 earlier passed by the Additional Commissioner, Karachi. This could not be done by the Commissioner as neither he could review the order passed by his predecessor‑in‑office without obtaining the permission of the Board of Revenue vide section 163(2)(a)(i) of the West Pakistan Land Revenue Act, 1967 nor could he revise the order of the Additional Commissioner under the provisions of section 164 of the Land Revenue Act, 1967. It will be against justice and equity if the Commissioner is allowed to bring a case on his file wherein the issue stands already determined by an officer invested with the same powers because such procedure can lead to miscarriage of justice. It is to protect the parties against such misuse of powers that the Legislature has provided a safety valve by making it obligatory on the part of the Commis sioner to obtain permission of the Board of Revenue for doing so. Although it has been argued with force that the order of the Additional Commissioner was only on the office file and was passed without hearing of the parties and, therefore, was not valid in the eyes of law yet the proper judicial course was not to review it in the manner in which it has been done. If this order of the Additional Commissioner would have been allowed to be communicated to the parties it would have been up to, there to question its legality and propriety in the proper Court of law.

10. I have also noted that the powers to grant land were previously exercised by the Chief Commissioner, Karachi, who was vested with the powers of the Central Government. These powers of the Government were withdrawn from the Commis sioner, Karachi vide Government of West Pakistan, Services and General Administration Notification No. S.O.VII‑9‑11/65 dated 3‑5‑1968. Besides, according to Memo. No. 3255‑67‑111/3179‑GS dated 14‑12‑1967 of the Section Officer, Government of West Pakistan, Land Utilization Department addressed to the Commissioner. Karachi, the Governor of West Pakistan had ordered that no further leases/renewal of leases and c inversions etc. should he allowed by the Commissioner or the Collector, Karachi District, till a policy decision had been taken in that respect. Consequently the Commissioner, Karachi, could not grant the land to anyone except under the orders of the Government or according to a policy to be laid down by the Government for disposal of the plots. Unfortunately, this aspect of jurisdiction and competency has not been given any consideration by the Commissioner.

11. On both the above counts, therefore, the order of the Commissioner, Karachi, is not only bad in law but is without jurisdiction as well. I, therefore, set aside the order dated 24‑8‑1968 passed by the Commissioner, Karachi as well as the subsequent order dated 23‑1‑1971 passed by the Commissioner. Karachi maintaining the previous order dated 24‑8‑1968 of his predecessor ‑and direct that the proposals for disposal of the land in question should be submitted to the Board of Revenue.

12. The disputed land was taken over by the Auqaf Department vide their Notifications dated 14‑2‑1968 and 27‑7‑1968. The disputed land did not stand granted to the Auqaf Department at the time of issue of these two notifica tions. The Commissioner, Karachi subsequently vide his order dated 24‑8‑1968 transferred the land to the Mosque and thus acquiesced to the Notifications though issued earlier than his order. The petitioner agitated against these notifications to the District Court under section 7 of the Waqf Properties Ordinance, 1961 but his application was rejected by the District Judge, Karachi, vide his order dated 5‑9‑1970 on the ground that the petitioner had no right whatsoever in the plot. He is stated to have filed an appeal before the High Court, which is still pending. The order of the Commissioner, Karachi granting the land to the mosque has been set aside vide para. 11 supra. The land now vests in Government and it is, therefore, imperative that Government should take steps for being impleaded as a party in that litigation with a view to safeguarding the interests of the Government. Necessary action may be taken by the authority concerned accordingly.

13. In the end, I would like to point out that the part played by the office of the Commissioner, Karachi, in this case betrays gross carelessness and inefficiency. Firstly, a number of files were opened on the same subject with the result that tie sequence of events did not remain linked. I also fail to understand why the case for grant of the land to the mosque was separated from the case of the petitioner for grant of tie land and why the two cases were not processed together in the Commissioner's office and why the orders affecting the right of the parties were obtained on office noting without affording any opportunity to the parties of being head. I also feel that the whole matter has been complicated and confused due to the inefficiency of the Reader to the Commissioner, Karachi . The part played by him in this case does not appear to be above board. The Commissioner, Karachi had passed a judicial order dated 24‑8‑68 granting the land to the Mosque. The petitioner had filed a regular review petition against that 'order which should have been dealt with on judicial side after hearing of the parties but the Reader obtained the orders of the Commissioner dated 1‑5‑1969 on office noting and issued letter to the Deputy Commissioner Karachi vide his No. Case‑24/68‑Judl. dated 2‑5‑1969 under his own signature, which was not proper. This order of the Commissioner, Karachi was set aside by tie High Court of West Pakistan only on that account. I am surprised that all this failed to attract the notice of the Commissioner Karachi who did not even warn his Reader to be careful in future.