Haji MUHAMMAD AFZAL Versus GOVERNMENT OF PUNJAB through Chief Administrator, Auqaf, Lahore and 4 others
CH. IJAZ AHMAD, J.-- -The brief facts out of which the present Intra-Court Appeal arises are that the land in-question is attached with Masjid Mian Karim Bakhsh Langey Mandi Near Water Tank. The Mosque alongwith the land in-question has been dedicated for public worship' by Mian Karim Bakhsh deceased, an ancestor of petitioner respondent No.3. In February, 1903 a nephew of Mian Karim Baksh namely Haji Abdul Samad dedicated income from 30 shops being half share of the property known as Katri Tawaila Bansanwala Chuna Mandi Lahore for the upkeep and maintenance of the mosque. The property in question alongwith other property attached with the mosque was a part of religious trust, which was created by late Mian Karim Bakhsh. The property in-question alongwith other property was taken over by the Chief Administrator Auqaf Department vide Notification, dated 2-7-1970 which was duly published in the Punjab Gazette on 11-7-1970 under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, the said notification subsequently was amended vide Notification; dated 23-1-1984 The property in question was initially given to the occupants by the Auqaf Department treating them as tenants who had raised construction over the property in , question and were occupants at the time when the property in dispute was taken over by the Auqaf Department. The occupants over the property in question persuaded the Government of the Punjab to declare the property in question as Kachi Abadi. The Government of the Punjab through Commissioner and Deputy Commissioner declared the same property as Kachi Abadi on 17-11-1986. The occupants over the property in question stopped to pay rent to the Auqaf Department and paid the necessary fee to the concerned Department for acquiring permanent rights in the Kachi Abadi. The concerned department had issued the necessary letters to the occupants keeping in view the land in question as Karachi Abadi as declared by the concerned Department. The appellant purchased the said rights from the occupants alongwith the superstructure in the year, 1989-90. The appellant wanted to construct a Plaza over the land in question, therefore, the appellant purchased adjacent properties belonging to different persons through seven registered sale-deeds during February, 1990. The appellant demolished the old construction over the property in question and had started construction over the land in question to the appellant claiming their right over the property in question. The appellant submitted an application to the Auqaf Authorities for recognizing him as tenant which was processed. In the meantime the appellant had constructed plaza over the land in question. The appellant submitted an application before the Chief Minister on 29-10-1990 to purchase the land in question. The Chief Minister's Secretariat Punjab sent the same to the Secretary Auqaf that the case be examined and put up for his information/order within four days vide letter, dated 1-11-1990. The Administrator Auqaf Central Zone forwarded the application of the appellant on 18-6-1990 to the Chief Administrator Auqaf for remaining the property in clucstiot1 to the appellant on double the amount of the previous rent of the entire area. The Chief Administrator Audal Department sent a summary to the Chief Minister Punjab on 15-1-1990. The contents of the summary reveals that sale of Auqaf property was not legally permissible and the value of the Waqf property was about Rupees fifty millions. However, he recommended that the land in question be leased out to the appellant but no final order was passed by the competent authority. Subsequently, the Chief Administrator Auqaf Department had initiated a second summary on the application of the appellant on 14-5-1991 and recommended the sale of the property in question as the occupants over the land in question had not paid a single penny after declaration of the property in question as Kacht Abadi. He also mentioned similar precedents qua the sale of Waif property in the summary and determined the price of the property in question as being Rs.50,000 per Maria, which is higher than the price determined by the District Collector's office, which was amounting to Rs.43,000 per Marla. The said summary was approved and accepted by the Chief Minister. The land in-question was sold to the appellant vide registered sale-deed, dated 7-7-1991 for a consideration of Rs.37,00,000. The Press clipping appeared in the Daily JANG, dated 2nd February, 1992 that the land in - question was sold on a low price. The Chief Minister's Secretariat under the heading allotment of Auqaf land on reduce price on 13-2-1992 desired that the report should be submitted for his information/order within seven days positively. The summary was submitted by explaining that the land in question was sold to the appellant in accordance with law vide summary, dated 20-2-1992, which was approved by the competent authority as is evident from para.8 on the basis of which the aforesaid summary was approved by the competent authority on 1-4-1992. Respondents No.3 to 5 filed Constitutional Petition No.4401 of 1992 with the following prayer:--
"In view of the above facts and circumstances, it is most humbly prayed that:---
(i) Respondent No.3 be directed to make discovery of the purported registered sale-deed allegedly executed by respondent No. 1 in favour of respondent No.2 on 7-7-1991 conveying 74 Marlas of Waqf land in Tawaila Bansanwala, Chuna Mandi, Lahore, to respondent No.2 for a consideration of Rs.47 lacs only.
(ii) That respondent No. 1 be directed to make discovery of order, dated 7-7-1990 in pursuance of which the purported sale-deed was executed and also to make discovery of summary, dated 10-11-1990 addressed to the then caretaker Chief Minister Mr. Ghulam Haider Wyne by respondent No.2's predecessor-in- interest.
(iii) That if the discovery of the above-mentioned document confirms that the purported sale transaction has been actually carried out then the same be declared to be without lawful authority and of no legal effect.
(iv) If no registered sale-deed has been executed so far, respondent No.1 be restrained from executing the same pending final disposal of this petition."
The aforesaid Constitutional petition was accepted by the learned Single Judge vide judgment, dated 21-9-1998, hence the present Intra-Court Appeal.
2. The learned counsel of the appellant submits that the Chief Administrator Auqaf Department sent summary, dated 14-5-1991 alongwith the extract of section 16 Punjab Waqf Property Ordinance, 1979, therefore, learned Single Judge erred in law to accept the Constitutional petition that the land in-question was sold to the appellant in violation of section 16 of the Punjab Waqf Properties Ordinance, 1979. The land in-question was sold to the appellant after satisfaction of the competent authority in terms of section 16 of the aforesaid Ordinance in view of the summary submitted by the Chief Administrator Auqaf Department/Secretary to the Chief Administrator keeping in view the circumstances that the land in-question was occupied by the occupants. The land in-question was declared Kachi Abadi and thereafter the occupants did not pay a single penny to the Auqaf Department. He further submits that the property being Waqf property which can be sold in accordance with the aforesaid provisions of the Ordinance. Similarly, the same was not fraudulent as the value of the land as a whole consisting of 13 Kanals was mentioned Rupees fifty millions as is evident from para. 2 of the summary, dated 6-11-1990. He further submits that Saleem Akhtar Rana, the Chief Administrator Auqaf Department/ Secretary Government of the Punjab has mentioned the price of the land in question amounting to Rupees five crores with regard to the whole property trust created by late Mian Karim Bakhsh. The second summary on the basis of which the land in question sold to the appellant was also prepared and signed by Saleem Akhtar Rana, the Chief Administrator Auqaf Department/ Secretary Auqaf Department, Punjab Lahore wherein the price was mentioned Rupees Fifty thousand per Marla after finding out price of the land in the area from the Collector concerned which is Rs.43,000 per Marla. He further submits that the appellant has purchased adjacent land in the year 1989-90 from the private persons and the average price is not more than Rs.50,000 per Marla as is evident from the sale-deeds attached by the appellant alongwith the written statement as Annexures R-5 to R-9. The appellant has sold some shops/portions of the plaza in question to other persons as is evident from Annexures R-12 and R-13. Thereafter the appellant has sold all the portions shops of the plaza in-question to other persons. He further urges that the competent authority after applying its independent mind and satisfaction, sold the land in-question to the appellant which was not considered by the learned Single Judge in the impugned judgment. He further urges that respondents Nos.3 to 5 are also residents of the area. The appellant had started construction over the land in question but respondents Nos.3 to 5 or any other person did not agitate the matter well in time, before any authority. He further urges that similar question was raised under the influence of respondents Nos.3 to 5 in the Punjab Assembly but same was filed after debate. He further urges that respondents Nos.3 to 5 failed to bring on record any material to show that the land in-question was sold by the Auqaf Department to the appellant on nominal price.
3. Mr. Mushtaq Raj, Legal Advisor of Auqaf Department submits that the appellant purchased the land in-question with connivance of the officials/officers of the Auqaf Department by using political influence and the Auqaf Department has no lawful authority to sell the property in-question to the appellant in view of the provisions of the Punjab Waqf Properties Ordinance, 1979. He further urges that respondents Nos. 3 to 5 did not implead all the property and necessary parties in the Constitutional petitions in view of Annexures attached R.12 to R.13. He further submits that the learned counsel of the appellant has argued that whole of the Plaza has been sold by the appellant to different persons, therefore, persons who have purchased the property in question from the appellant are necessary and proper party, so the Constitutional petition as well as the ICA are not maintainable which will create difficulties to the Auqaf Department in case any adverse order would pass against the bona fide purchaser.
4. Mian Nisar Ahmad, learned counsel of respondents Nos.3 to 5 submits that respondents Nos.4 to 5 have taken ground(a) that the Waqf had created Waqf of the shops, in question for the maintenance of Mosque Karim Bakhsh, therefore, property is automatically vested to Almighty Allah which could not be alienated/transferred by sale except in accordance with injunctions of Islam. The appellants did not deny this fact. This fact was admitted by the appellants in written statement in reply of para, 1 that the mosque was dedicated for public worship by Mian Karim Bakhsh. He further urges that the appellant secured the land in question under the political influence as is evident from the orders passed by the then Chief Minister on the application submitted by the appellant before him. The Chief Minister Secretariat directed the Secretary, Auqaf on the application of the appellant to examine and put up for his examination/orders within four days. Similarly, the Chief Minister Secretariat directed the Secretary, Auqaf to submit report within 7 days positively for the information/orders of the Chief Minister after seeing Press clipping that land in question was sold to the appellant on reduced price on 13-2-1992 as is evident from the Chief Minister Secretariat letter, dated 17-2-1992. He further submits that the property in question is a part and parcel of the Waqf as is evident from Annex-A attached by the respondents with the Constitutional petition filed by the respondents before this Court. He further submits that the appellant admitted this fact in written statement in para. 2 on merits. He further submits that nephew of Mian Karim Bakhsh namely, Haji Abdus Samad dedicated the income from 30 shops in 1903 for the maintenance of the mosque. He further urges that Constitutional petition was fixed before the learned Single Judge on 18-5-1992 and the learned Single Judge directed respondent No. 1 (Chief Administrator Auqaf) and respondent No.3 (Sub-Registrar Lahore City). Sub-Registrar submitted report, dated 1-6-1992 and took a stand in reply of ground-H to the extent that no sale deed has been registered in the office of, answering respondent No.3 (Sub-Registrar Lahore City) and as such the question of supplying duplicate copy of' the same does not arise which was admitted by the learned Single Judge on 18-10-1992 that action of the Auqaf Department is not in accordance with section 16 of Waqf Properties Ordinance, 1979 and the law laid down by the Honourable Supreme Court in Syed Saeed Hassan v. Payer Ali and 7 others PLD 1976 SC 6. He further urges that respondents Nos.3 to 5 filed C.M. No.1 of 1992 for ad interim relief and the following order was passed on 18-10-1992 by the learned Single Judge:
"It is directed that till the decision of, the writ petition, no sale deed shall be registered with respect to the property in dispute."
The respondent/petitioner also filed C.M. No.1 of 1994 with the prayers that respondent No.2 be directed to place on record document on which he relies to acquire title in the property in question. The aforesaid applications were finally decided by the learned Single Judge vide order, dated 7-7-1994 in the following terms:--
"So far as C.M. No. 1 of 1994 -is concerned it closely relates to the merits of the main writ petition. The conveyance deed purports to have been drawn up but the same is lying with the office of the Sub-Registrar and under the order of this very Court in this very writ petition, the registration thereof was stopped. Hence whatsoever case the respondent would like to put up on merits or the documents he relies would be placed on record and then the main petition would come up for hearing. With this order C.M. No. 1 of 1994 also stands disposed of."
He further submits that the appellant/respondent filed written statement before this Court on 27-4-1994 and took a stand in para. 3 that sale-deed has been executed in favour of the appellant/respondent No.2 for a consideration of Rs.37 lacs on 7-7-1991 as is evident from Annexure R2. The sale-deed was not registered, therefore, the appellant could not take benefit of execution of sale-deed in view of section 49 of the Registration Act, 1908. He further urges that the appellant secured the land on account of his influence on a meagre price in spite of the fact that the land in question is situated in commercial area whereas the appellant has purchased the same as the same was situated in residential area. He further urges that Auqaf Department has no, lawful authority to sell the Waqf property as the same has been permanently dedicated for charitable purpose in the name of mosque in view of paras.173, 193, 207, 208 of Mohammadan Law by D. F. Mulla. In support of his contentions he relied upon the following judgments:--
Qazlbash Waqf v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99, Sahibzada Mansoor Ahmad v. Chief Administrator Auqaf 1993 MLD 2529, Malik Aslam Pervez Advocate v. Province of Punjab, 1994 MLD 1986 and Muhammad Sadiq and 15 others v. Chief Administrator Auqaf, West Pakistan, Lahore PLD 1972 Lah. 780.
He further urges that summary was submitted by the Secretary, Auqaf to the Chief Minister without adverting to the parameters prescribed under section 16 of the Punjab Waqf Properties Ordinance, 1979 read with section 17 of the said Ordinance. He further submits that legislator in its wisdom has specifically used the word "satisfied" coupled with the circumstances exists which make it necessary to sell or dispose of any Waqf property in order to get maximum economical benefits out of such property and to avoid loss or damage to said property but the summary submitted to the Chief Minister did not fulfil requirement of clauses (a) to (g), therefore, learned Single Judge was justified to accept the Constitutional petition. He further urges that the Chief Minister has approved the same without application of independent mind as is evident from para. 27 of the summary and para.28, therefore, learned Single Judge was justified to accept the Constitutional petition of the respondents which is in accordance with law laid down by the Superior Courts. In support of his contentions he rolled upon the following judgments:--
Province of East Pakistan v. Dolat Perchut Mills Ltd. PLD 1968 SC 398, Syed Saeed Hassan v. Pyar Ali and 7 others PLD`1976 SC 6, Raja Abdul Qayum v. Ch. Latif Akbar, Advocate 1994 CLC 2041 and Ali Enterprises v. Tehsil Administrator, Faisalabad PLD 2003 Lah. 1001.
He further urges that the competent authority has not given any reason at the time of approving the summary of the Secretary Auqaf, therefore, learned Single Judge was justified to accept the Constitutional petition. In support of his contentions he relied upon the following judgments:--
S.N. Mukherjee v. Union of India AIR 1990 SC 1984 and Malina Rani Da.s v. The Province of East Pakistan and others PLD 1968 Dacca 177.
He further urges that Auqaf Department has to sell the property in question after fulfilling the parameters prescribed under section 16 in open auction in a transparent manner but the respondent-Auqaf Department sold the property to the appellant in a secret manner, therefore, the same is liable to be set aside. In support of his contentions he relied upon Messrs Lavin Traders' case NLR 1993 SC Judgments 641.
5. Mian Nisar Ahmad, Advocate further submits that once the property in question was dedicated in the name of mosque in question by the original owner then nobody else has any right to sell or inherit the property in question which had been dedicated in the name of mosque through registered Waqf. In support of his contention he relied upon following books and case-law:--
(1) Hedaya by Charles Hamilton 57th Edition page 235 under the heading "An appropriation cannot be sold or transferred", (2) Mohammeden Law by Dr. M.A. Manan Pakistan Edition Paragraphs No.173 under heading "Waqf as defined in. Waqf Act; 193 under Heading "Waqf property cannot be alienated" 207 under Heading "Power of Mutwali to sell or mortgage 208 under Heading "Power of Mutwali to grant leases", (3) Mishkat ul-Masabih Volume 2 initial translation by, Al-Haj Maulana Fazal Karim Section 5-A Waqf means permanent dedication by z. Muslim of any property for any purpose recognized by Islam as charitable, (4) Fatawa-e-Alamgiri Volume-4 Page-60 under the Heading Kitab-ul-Waqf, (5) Ahadees-e-Saheeha by. Syed Maqbool Hussain page-322, (6) Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599. The cited judgment was upheld by the Division Bench of this Court vide unreported judgment, dated 11-11-2003 in I.C.A. No.578/2003, (7) Haji Abdul Rahim's case AIR 1923 PC 44(2), (8) Abdul Hamid Qureshi's case PLD 1958 Lah. 824 and (9) Sahibzada Mansoor Ahmad's case 1993 MLD 2529.
He further urges that property in question was sold to the appellant by respondent No.2 without fulfilling the ingredients including satisfaction of the competent authority prescribed by Legislature in section 16 of the Punjab Waqf Properties Ordinance, 1979. Therefore, sale qua the property in question in favour of the appellant is not sustainable in the eye of law. In support of his contention he relied upon Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599 and the unreported judgment, dated 11-11-2003 in I.C.A. No.578 of 2003 wherein the judgment in aforesaid writ petition was upheld and also relied upon the following judgments:--
Dr. Muhammad Ismail v. Deputy Commissioner Jhang PLD 1976 Lah. 758 and Mian Muhammad Saeed v. Province of West Pakistan PLD 1964 SC 572.
He further submits that in reply of respondent No.2 before the learned single Judge has taken a stand at page 2 that appellants have purchased these properties which were purchased by the appellants ont5-3-1990, 12-3-1991, 7-5-1991, 4-3-1990, 27-8-1990, 21-3-1991 respectively whereas the property in question was purchased by the appellants from respondent No.2 on 7-3-1991. The sale qua the land in question was published in the Frontier Post in October, 1991 and respondent No.1 filed Constitutional petition before this Court on 6-5-1992. He further submits that reply of appellants is not in accordance with the contents of the Constitutional petition .as respondent No.1 has attached registered Waqf deed alongwith the Constitutional petition as Annexure-A. This fact was denied by the appellants in reply on merits at page. 4 in para.2. Therefore, impugned order of the learned single Judge is valid in the eye of law. He summed up his arguments that document cannot tell a lie whereas man can tell a lie. The appellants have denied the registered documents in reply which is not in consonance with the registered comments i.e. trust deed. Coupled with the fact that land in question was sold by the respondents without objective satisfaction in terms of section 16 which is condition precedent and subjective satisfaction is not sufficient to sell the land in question to the appellants. In support of his contention he relied upon the following jugments:---
Syed Saeed Hassan case PLD 1976 SC 6 and Naeem Ahmad v. Chief Administration Auqaf 2004 CLC 599.
6. Learned counsel of respondent No.2 adopted the arguments of learned counsel of respondent No. 1. He submits that land in question was sold to the appellants under political influence. Therefore; impugned order is valid in the eye of law.
7. Learned counsel of the appellants in rebuttal submits that learned counsel of the respondent has taken a stand before this Court on the basis of a General Muslim Law that Auqaf Department has no right to sell the property in question to the appellants which is not in consonance with the injunctions of Islam which is incorrect in view of Paras.212 and 212-A of Mohammaden Law by D.F. Mulla which envisaged that there is no complete ban qua the sale of Waqf property and in fact statutory provisions. have taken over in view of statutory laws promulgated by the competent authority. He further submits that there is no concept of Mutwali as is highlighted in Mohammaden Law by D.F. Mulla as the property in question has been taken over by the Auqaf Department under the provisions of Punjab Waqf Properties Ordinance, 1979. He further submits that Shariat Application Act, 1962 also prescribes by virtue of section 3 "subject to statutory law". The Shariat Application Act was promulgated and enforced in the year, 1962 whereas the Punjab Waqf Properties Ordinance, 1979 was promulgated and came into force in 1979, therefore, there is no complete bar to sell the property in question under the provisions of the Punjab Waqf Properties Ordinance, 1979 read with section 3 of Shariat Application Act, 1962. He further submits that competent authority has sold the land in question to the appellants after proper application of mind as is evident from the three summaries submitted by the Auqaf Department to the competent authority on 6-11-1990, 14-5-1991, 20-2-1992. He further submits that land in, question was declared as Kachi Abadi on 17-11-1986 and the respondent has not agitated the matter before any authority and the land. in question was allotted to the persons from whom the appellants have purchased the same in the year 1987 and also appellants had purchased adjacent lands to the land in question from the original owners and finally on 7-3-1991 the appellants have purchased the land in question from the Auqaf Department. The appellants have demolished the construction over the land in question alongwith the adjacent lands for the purpose to construct the Plaza over the land in question alongwith adjacent lands. Opposite party did not raise .any objection at the time of declaring the property in question as Kachi Abadi and also did not raise any objection at the time of starting construction over the land in question. He further submits that first summary was sent by the Auqaf Department on 6-11-1990 without any basis which was not in consonance with the second summary, dated 14-5-1991 on the basis of which appellants have purchased the land in question. The question was raised in the Assembly that land in question was sold to the appellants by the Auqaf Department at a meagre rate, therefore, third summary was prepared under the direction of the Chief Minister on 20-2-1992 which reaffirmed and confirmed the earlier summary, dated 14-5-1991.
8. Learned counsel of the respondents with the courtesy of the learned counsel of the appellants submits that appellant have tiled application before the Chief Minister who has directed the Secretary Auqaf to submit his report which clearly envisages the influence of the appellants that appellants have purchased the land in question under political influence. He further submits that Chief Minister has not passed an order after perusing the summary submitted by Secretary Auqaf and in fact he endorsed the note of G.M. Sikandar, Personal Secretary to the Chief Minister. Therefore, the impugned order qua the sale of the property in question to the appellants by the Chief Minister is without application of 'mind which is condition precedent in view of section 16(a to g) of Waqf Properties Ordinance; 1979. He further submits that appellants have raised fresh pleas which were not taken by the appellants in his written statement before the learned Single Judge and pal-ties are bound by their pleadings. In support of his contention he relied upon the following judgments:--
Mst Janat Bibi's case 1988 SCMR 1696 and Messrs Chaudhry Brother's case 1968 SCMR 804.
He further submits that Punjab Kachi Abadi Act, 1992 was promulgated on 19-9-1992, therefore, plea of the appellants that land to question was declared Kachi Abadi and was taken over by the occupants before 1992 has no force. He further relied upon page 2 of the reply of the appellants before the learned Single Judge. He summed up his arguments that appeal may be dismissed.
9. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record:
10. It is pertinent to mention here that learned counsel of the parties only urged before the learned Single Judge whether the land in question was sold in terms of section 16 of the Punjab Waqf Properties Ordinance, 1979 or not as is evident from the impugned judgment of the learned Single Judge whereas learned counsel of the parties urged on new grounds before us We can confine ourselves to examine the judgment of the learned Single Judge in view of the contentions raised before the learned Single Judge by both the parties in view of law laid down by the Honourable Supreme Court in Mst. Janat Bibi's case 1988 SCMR 1696 and Mst. Murad Begum Muhammad Rafi PLD 1974 SC 322.
11. It is better and appropriate to reproduce correspondence between the appellants and respondent-Department qua purchase of the land in question by the appellants and the relevant provisions of Punjab Waqf Properties Ordinance, 1979:--
SO(C)CMS-OT-51349041
Chief Minister Secretariat, Punjab. 1.11-1990
Subject: Request of Haji Muhammad Afzal for registration of sale deed land measuring 3K-14M Auqaf Property situated Tawaila Bansanwala, Lahore on normal rice.
On presentation of enclosed application as detailed in above subject, Chief Minister has been pleased to desire that the case may be examined and put up for his information/orders within four days.
(Sd.) Ali Arif, Additional Secretary
Secretary Auqaf.
STO-CMS TO-35-455
Chief Minister Secretariat Punjab
13-2-1992
Subject: Allotment of Auqaf land on reduced price.
Chief Minister has seen the enclosed press clipping appearing in the daily Jang, dated 2 February, 1992, and has desired that a report should be submitted for his information/orders within 7 days positively.
(G.M. Sikandar) Secretary to Chief Minister. Minister for Auqaf Secretary Auqaf. A. A. P.
"Section 2(c) ,Government means the Government of Punjab."
Section 16: Sale of Waqf property by Chief Administrator and application of proceeds .-- Government may, where it is satisfied that circumstances exist which make it necessary to sell or otherwise dispose of any Waqf property in order:--
(a) to secure maximum economic benefits out of such property and to avoid loss of damage to such property; or
(b) to serve the best public interest and public purpose for which such property was dedicated; or
(c) to give effect to such wishes of the person dedicating the property as can be ascertained; or
(d) in the absence of evidence of express dedication, to enable the property to be used for the purpose for which it has been used or for any purpose recognized by Islam' as religious, pious or charitable; of
(e) to provide maintenance to those who, on .account of unemployment, sickness, infirmity or old age are unable to maintain themselves; or
(f) to provide education, medical aid, housing, public facilities and services such as roads, sewerage, gas, and electric power; or
(g) to prevent danger to life, property or public health, permit the Chief Administrator to, do so and to invest the proceeds in accordance with its directions."
12. In case the aforesaid proceedings and provisions of law are put in a juxta position then it is crystal clear that Secretary Government of the Punjab/Chief Administrator Auqaf has prepared summary qua sale of the property in question to the appellants under the direction, of the Chief Minister. The authority of the Government would be exercised in the name of the Governor by the Provincial Government through the Secretary in view of Articles 129 and 139 of the Constitution of Pakistan as the lave laid down by this Court in Khawaj Din's case PLD 1980 Lah.
15. The Competent Authority under .the provisions of Punjab Wadf Properties Ordinance, 1979 is the Secretary, Government of the Punjab and higher authorities are not Government in terms of the provisions of the aforesaid Ordinance. The designation of higher authority of the Secretary concerned does not figure anywhere in the provisions of aforesaid Ordinance. Therefore, any action initiated by the Secretary concerned under the direction of the superior is not in accordance with law laid down by the Honourable Supreme Court in the following judgments: --
Punjab Textile Board Lahore and others v. Muhammad Akhtar Sherani and others PLD 2001 SC 1032.
The aforesaid proposition of law is also supported by the following judgments: --
Ghulam Mohyuddin's case PLD 1964 SC 829, Orion Paper Mill's case AIR 1970 SC 1498, Sam Labour Union's case 1946 AER 201 and Ghulam Murtaza's case 1998 PLC (CS) 274.
13. The authority is vested with the Secretary concerned to view of section.2(c) read with section 16 of the said Ordinance with the power purports to act on its own but in "substance" the power is exercised by another. Meaning thereby that the authority concerned does not apply its independent mind which is requirement under the law. First summary was prepared by the Secretary concerned which was subsequently changed under the direction of the Chief Executive of the Province meaning thereby that the Secretary concerned has exercised the power as the agent of the Government which is not in consonance with the aforesaid provisions of law, therefore, impugned sale is not valid in the eye of law. In arriving to this conclusion we are fortified by the following judgments:
State of Punjab v. Hari Kishan Sharma AIR 1966 SC 1081, Simms Motor Units v. Minister of Labour 1946 2 All ER 201, Orient Paper Mills v. Union of India AIR 1969 SC 48 and Orient Paper Mills v. Union of India AIR 1970 SC 1498.
The Legislature in its wisdom used the word "satisfaction" in section 16 ibid which clearly cast duty upon Secretary concerned/Chief Administrator Auqaf to sell the land in question to the private party after applying his independent mind. In arriving to this conclusion we are fortified by Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599. It is pertinent to mention here that the aforesaid judgment was upheld by the Division Bench of this Court in I.C.A. No.578 of 2003. It appears, in view of the aforesaid circumstances, that land in question was sold by the Secretary Government of the Punjab Auqaf Department to the appellants under direction of the Chief Executive of the Province. Therefore, the same is not sustainable in the eye of law in view of the E peculiar circumstances of the case in hand.
14. It is settled principle of law that this Court has ample jurisdiction to look into the subsequent events at the time deciding the cases as the law laid down by the Honourable Supreme Court in Mst. Amina Begum's case PLD 1978 SC 220. It is stated by the learned counsel of the appellants that appellants have constructed a Plaza over the land in question and have sold the same to other persons. Keeping in view all these facts the question which only remains for determination is whether the Chief Administrator Auqaf/Secretary Government of the Punjab has sold the land in question after application of independent mind or not. It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts in view of the law laid down by the Honourable Supreme Court in Trustee Board of Karachi's case 1994 SCMR 2213.
In this view of the matter judgment of the learned Single Judge is upheld that parties are directed to appear before Secretary to Government of the Punjab/Chief Administrator Auqaf who is directed to reconsider the matter afresh keeping in view the ground realities as alleged by the appellants that they had, purchased the land in question twice i.e. from the occupants after declaration as Kachi Abadi and thereafter from the Auqaf Department. Secretary Government of the H Punjab/The Chief Administrator Auqaf is directed to reconsider the issue in question including the price prevailing at the time the same was purchased by the appellants from the respondent keeping in view the prevailing price of the land in question at that time in the area in question, without being influenced by any quarter after application of its, own independent mind.
With these observations this Intra-Court appeal is disposed of.
M.B.A./M-393/L Order accordingly.