CHIEF ADMINISTRATOR AUQAF Versus DIWAN SHEIKH TAJ-UD-DIN

ORDER

TASSADUQ HUSSAIN JILLANI, J.--- Through this petition, petitioners have challenged the judgment dated 29-10-2008 vide which a learned Judge of the High Court dismissed FAO No. 2/1996 filed by the petitioner Chief Administrator Auqaf wherein the judgment of the learned Additional District Judge, Bahwalnagar dated 20.12.1995 had been impugned. In terms of the latter judgment, the learned Court had allowed respondent No. l's petition under Section 11 of the Punjab Waqf Properties Ordinance, 1979 and set aside the notification subject matter of the said petition (notification dated 8-6-1992).

2. Facts giving rise to the instant petition briefly stated are that petitioner issued Notification No. SOB-II-3(4) Auqaf/60 dated 8-6-1992 vide which the property mentioned therein i.e. 6201 kanals 9 marlas was sought to be taken over by the Department declaring it to be a Waqf property attached with the shrine of Hazrat Baba Farid-ud-Din Ganj Shakr, Pakpattan Sharif. The learned Additional District Judge framed six issues, which are as under:--

"(i) Whether the impugned Notification SOB.II-3(4)/Auqaf/ 60 issued on 8-6-1992 regarding the disputed land is illegal, void, mala fide and unconstitutional? If so, its effect? OPP

(ii) Whether the mutation No. 53 dated 21-6-1992 attested in favour of respondent No. 1 is illegal, void, Mala fide and ineffective against the rights of the petitioners? OPP

(iii) Whether the petitioners are entitled to the restoration of the suit land? If so, on what terms and conditions? OPP

(iv) Whether the petitioners are owners in possession of the disputed land and they have inherited the same from Dewan Sheikh Fateh Muhammad? OPP

(v) Whether the disputed property is a waqf property for the purpose of meeting of the expenses of Khanqah Hazrat Baba Farid Pakpattan Sharif? OPR

Having considered the evidence led, the learned ADJ allowed the petition of the respondent and declared the notification to be without lawful authority in terms of its findings on issues Nos.1, 2 & 5. This judgment has been upheld by the learned High Court vide the impugned judgment.

3. The learned counsel for the petitioner seeks leave on the ground that the learned High Court did not appreciate that respondents had no title over the property and were in possession of the same on account of being heirs of Dewan Fateh Muhammad who was a descendent of late Dewan Abdul Rehman and the latter was one of the descendents of Dewan Allah Jawaya who was granted the said land by Nawab of Bahawalpur for the purposes of upkeep of shrine of "Khankah Sharif Sheikh Farid" in District Pakpattan. That being so he added that the land sought to be taken over by the petitioner was a waqf property amenable to Section 7 of the Punjab Waqf Properties Ordinance, 1979.

4. We have considered the submissions made, have gone through the relevant provisions of law and the evidence led before the learned Additional District Judge.

5. Before dilating on the issue whether the property subject matter of this petition was a waqf property amenable to a declaration sought through the notification issued by the petitioner Department, a reference to the term "waqf property" as defined in Section 7 of the Punjab Waqf Properties Ordinance, 1979, would be in order. The said Section reads as follows:--

"WAQAF PROPERTY" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or any member or his family or descendants.

Explanation.--"Property permanently dedicated for the purpose of a Mosque, takia, khankah, dargah, or other shrine shall be deemed to be Waqf property."

6. The issue as to what is "waqf property" came up for consideration before this Court in Chief Administrator of Auqaf v. Koura (PLD 1991 SC 596) wherein at page 599, it was held as follows:--

"In construing the definition clause the High Court maintained that to be "waqf property", it must have been dedicated by a person professing Islam, for any purpose recognized by Islam as pious, religious and charitable and that Explanation I did not have the effect of doing away with this condition. It is well-settled that when a phrase is defined as having a particular meaning in the Act, it must be given the same meaning throughout the Act, unless there is anything repugnant in the context. There is, however, nothing in section 7 which empowers the Chief Administrator Auqaf to notify a property as waqf property, denying the application of the definition clause thereto. Significantly, in the definition clause the word "means" figures. The user of this expression would indicate that definition is hard and fast and no other meaning can be assigned to the expression other than that given in the definition."

7. The learned Additional District Judge allowed respondent's petition and held that the property in question was neither dedicated nor attached with the shrine and therefore, the notification issued was not tenable in law. In para. 18 of his judgment, he observed as follows:-

"Under Muslim Waqf, there is a requirement of its creation. The only requirement is clear intention for creating a waqf and declaration by the wakif to that effect and the appointment of a Mutawalli. Reliance is placed on PLD 1967 Lahore, 1221(DB). Now the perusal of Exh.R-4 and Exh.R-5 clearly leads to an inference that no one was appointed as Mutawalli by the defuncto Nawab of Bahawalpur for the estate attached with the shrine of Hazrat Baba Farid' ud Din Gang Shakkar. Here one can say easily that the Sajjadah Nasheen of the shrine, who performs the equal duties of Mutawalli can, by way of tradition, custom and history be termed as Mutawalli, then I have the advantage of going through the statement of AWs in this respect that after Dewan Fateh Muhammad, Dewan Said Muhammad was appointed as Sajjadah Nasheen who was not the legal heir of Dewan Sheikh Fateh Muhammad but was his sister's son. This being so, then the property devolved from generation to generation in the name of Dewan Hazrat Ghulam Rasool, Dewan Haji Noon Muhammad and the present petitioners, it is evident from the record of the shrine that name of present petitioners and their ancestors had ever been Sajjadah Nasheen of the shrine, therefore, they cannot be termed as Mutawalli in strict meaning of Waqf and its creation."

Adverting to the mala fides behind the issuance of notification, the Court further observed:-

"22. From the above discussion and the factual position, I am clear, in mind that the property in question, which was left by two notifications issued by the Auqaf Department for which declaration was not filed by the shrine which falls within the definition of a person and the description of which is also not embodied in R-4 and R-5 and is clearly admitted by RW-4 while appearing before me, it can safely be concluded that the Notification dated 21-6-1992 and mutation No. 55 on its basis is the result of mala fide on the part of the respondent at the behest of a stall wart namely Mian Khadim Hussain Wattoo M.P.A. of this area with whom the petitioners allege their Election rivalry who at the crucial time was known as the Chief Minister of this area and I without fear and favour endorse this fact and nobody can rebut this legend. One of the petitioner and the AW who appeared in this court has clearly attributed the malice to the above named Mian Khadim Hussain Watto and there is no rebuttal either in the suggestion of the learned counsel for the respondent or in the examination of RW-1, therefore, this aspect of the case goes un-rebutted on the part of the respondent in this behalf. "

8. A property could be called or declared as waqf property only if the same was either dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable or as added i n the Explanation to Section 7 any "property permanently dedicated for the purpose of a Mosque, takia, khankah, dargah or other shrine" shall be deemed to be waqf property". A plain reading of the sanad/document in terms of which Nawab of Bahawalpur granted the land to Dewan Allah Jawaya indicates that the alleged land was given as "inam/reward" and it was stipulated that it would be considered as a property of the said Dewan Allah Yawaya. The document does not indicate that either any trust was created or the said property was deemed to be part of the shrine. A reference to the said sanad/document at this stage would be in order, which was tendered in evidence as Exh.R-4 and the same reads as follows:--

9. The intent and object of the above quoted document appears to be that having vested the land in ownership of the guarantee, it required the latter in turn to maintain the upkeep of the said shrine. It was not stipulated that the property was either being dedicated for any religious purpose or to the said shrine or any "matwali" or trustee was being created. In the afore referred circumstances the concurrent findings on issues Nos. 2 & 5 and annulment of Notification issued by the petitioner are unexceptionable warranting no interference. This petition having no merit is accordingly dismissed in limini.

MWA/C-8/S Petition dismissed.