WALI MUHAMMAD SHAH Versus CHIEF ADMINISTRATOR, AUQAF, SINDH
1. The fact.,, giving rise to this Revision Application are that the present applicant had filed the Suit No.68 of 1975 for declaration and permanent injunction on 19‑3‑1975 before the Ist Senior Civil Judge, Hyderabad against the present two respondents.
2. The case of the applicant is that he is occupant of Plot No. 2944 A/116 Dadan Shah Jo Pirr, Hyderabad, hereinafter referred to as the suit plot, as a tenant of the Mutawali of the said Dargah on a monthly rent. The said Dargah and entire land of the same was taken over by the Auqaf Department vide Notification No.I (154) August, 67 dated 13‑5‑1969 with effect from 2‑10‑1969. Consequently the Manager, Auqaf issued Certificate on 18‑2‑1971 whereby the applicant was certified to be occupant of suit property and he was required by the Manager Auqaf to execute a lease agreement with the Auqaf Department and pay the rent to them. Thereafter the applicant started paying the rent to the Auqaf Department. It is also in the plaint that thereafter the Manager, Auqaf Department wrote to the applicant directing him not to make payment to any one as the case was pending in the High Court of Sindh and stay order had been issued. However, in the meanwhile the respondent No.2 also filed Suit No.194 of 1971 against the applicant for possession and compensation. This suit was pending at the time but was subsequently dismissed and the First Appeal and Second Appeal were also dismissed later on. The case of the applicant further is that thereafter the respondent No.2 moved a miscellaneous application to the Administrator of Auqaf Sindh at Hyderabad claiming to be tenant of the suit plot and the Administrator, Auqaf passed an order on 26‑8‑1972 holding the respondent No.2 as rightful tenant of the suit plot. The present applicant preferred an appeal before the Chief Administrator of Auqaf which was rejected and, therefore, this suit. During the . pendency of the suit, an application under Order VII, rule 11, C.P.C. was moved and the trial Court was pleased to reject the plaint on the ground that the suit was barred under the provisions of sections 6‑A and 6‑B of the West Pakistan Waqf Properties Ordinance, 1961 (XXVIII of 1961), hereinafter referred to as the Ordinance, which was then applicable. The said order was passed on 30‑4‑1976. Being aggrieved the present applicant preferred Civil Appeal No. 151 of 1976 which was also dismissed by the learned Ilnd Additional District Judge, Hyderabad on 31‑8‑1978 whereby the order of the trial Court was maintained and also it was held that the present suit was filed only against the Chief Administrator Auqaf and, therefore, was hit under section 79 of Code of Civil Procedure as held in the case of Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan (PLD 1971 Karachi 625), hence this Revision Application. I have heard the learned counsel for the applicant and respondent NoZ None is present for respondent No.l. It has been urged by the learned counsel for applicant that the applicant is an authorised occupant of the suit plot having been regularised as a tenant by the Manager, Auqaf who has also received rent from him. The Manager Auqaf is a subordinate of the respondent No.l and all his acts are covered as acts on behalf of respondent No.l. The learned counsel has further submitted that in view of above facts, he could not be termed as an unauthorised occupant unless a detailed inquiry is held and such finding is given and order is passed. He has further submitted that the order passed by the Administrator of Auqaf is a very brief order without assigning any reason; and that it has yet to be determined as to whether the facts stated in that order are borne out from the record.
3. As against this Mr. Shamsuddin Memon, the learned counsel appearing for respondent No.2 has submitted that the jurisdiction of the Civil Court is barred under the provisions of section 17 of the Ordinance read with sections 6‑A and 6‑B of the Ordinance. He has submitted that the order passed by the Administrator falls under the above provisions and is, therefore, immune from challenge before the Civil Court.
4. I have perused the plaint and the above‑cited provisions of the Ordinance. It may be pertinent to point out that in paragraph 9 of the plaint the applicant has attacked the impugned order of the Administrator and Chief Administrator Auqaf as being mala fide and without jurisdiction. It is, therefore, to be seen whether a barring provision such as section 17 of the ordinance bars the jurisdiction of the Civil Court in toto or with respect to the orders passed under the Ordinance. Section 17 of the Ordinance reads as under:
5. "17. Bar of jurisdiction .‑‑Save as expressly provided in this Ordinance, no civil or revenue Court or any other Authority, shall have jurisdiction‑‑
(a) to question the legality of anything done under, this Ordinance, by or at the instance of the Chief Administrator; or
(b) in respect of any matter which the Chief Administrator is empowered by or under the Ordinance to determine or settle; or
(c) to grant an injunction or other order in relation to any proceedings before the Chief Administrator under this Ordinance or anything done or intended to be done by or at the instance of the Chief Administrator under this Ordinance."
6. This section clearly shows that only those orders and acts are protected which are passed or done under the Act. Therefore, an order to be immune from challenge before the Court has to be one that has been passed under the provisions of the Ordinance. The provisions of sections 6‑A and 6‑B of the Ordinance read as under:
7. "6‑A. Eviction of persons wrongfully in possession of Waqf properties.‑Any person unauthorisedly entering upon occupation of any immovable Waqf property or using or occupying any such property to the use or occupation whereof, by reason of any provisions of this Ordinance or any rule made there under, he is not entitled or has ceased to be entitled, may, after being given a reasonable opportunity of showing cause against such action, be summarily evicted by the Administrator, with the use of such force as may be necessary, and any crop raised in such property shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by such person after service on him of a notice by the Administrator requiring him to remove such building or construction within a period of not less than thirty days of the service on him of such notice, be liable to summary removal after the expiry of the period specified in the notice.
8. Section 6‑B. Power to terminate a lease or resume a tenancy for breach of conditions : ‑‑(1) If the Administrator is satisfied that a lessee or tenant of any immovable Waql' property has committed a breach of the conditions of the lease of tenancy, the Administrator may, after giving such lessee or tenant an opportunity to appear and .state his objections, order the termination of lease or resumption of tenancy:
9. Provided that if the breach is capable of rectification the Administrator shall not order the termination of the lease or resumption of the tenancy unless he has issued a written notice requiring the lessee or tenant to rectify the breach within a reasonable time, not being less than 30 days, to be stated in the notice, and the lessee or tenant has failed to comply with such notice.
(2) Where an order terminating the lease or resumption of tenancy has been passed under the provisions of subsection (1), the Administrator may forthwith re‑enter upon the Waqf property and resume possession of it, subject to the payment of compensation to be fixed by the Administrator for uncut and un gathered crops or for the improvements, if any, that may have been made by the lessee or tenant under the terms of the lease or tenancy or with the permission of the Chief Administrator:
10. Provided that if the lease or tenancy be allotted to any other person, the amount of the compensation, if any, paid to the outgoing lessee or tenant may be recovered from the new lessee or tenant."
11. Now in the present case the plaint itself shows that the Manager, Auqaf having certified in favour of applicant and having received rent from him, the applicant cannot be termed as an unauthorised occupant just because the order of Administrator of Auqaf says that the Munshi has admitted before him that the receipts are forged. The order does not show if any statement on oath of that Munshi was recorded or any cogent evidence was led in this respect. There is no order on the record showing that the present applicant has been termed to be an unauthorised occupant or that his tenancy with the Auqaf Department has been terminated as required under section 6‑A or 6‑B of the Ordinance. g These are the points which are yet to be determined. Thus it is open for a Civil Court to look into and examine the various acts and orders passed by the Auqaf Department affecting the rights of the present applicant who is initially an authorised occupant of the suit plot as shown in the plaint. A reference may be made to the following cases:
(i) Abdul Rauf and others v. Abdul Hameed Khan PLD 1965 SC 671 and
(ii) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698)
12. Now coming to the other reason assigned by the appellate Court for rejection of plaint that the suit has been filed without joining the Provincial Government as party it may be observed that Chief Administrator of Auqaf can suo or be sued in his own name as provided in section 3, subsection (3) of the Ordinance; and that order of the lower appellate Court in this respect is erroneous. The provisions of section 3 (3) of the Ordinance reads as under:
3. Appointment of Chief Administrator of Auoaf: ‑(1) ...................
(2) ...................................................
(3) The Chief Administrator shall be a corporation sole by the name of the Chief Administrator of Waqfs, West Pakistan, and shall have perpetual succession and an official seal, and may sue and be sued in his corporate name.
(4) ............................................................... :
13. In view of above discussions I accept this Revision Application and remand the case to the Court of Ist Senior Civil Judge, Hyderabad to be tried on merits. However, there will be no order as to costs.
14. AA./W‑89/K Case remanded.