CHIEF ADMINISTRATOR AUQAF, PUNJAB Versus ANJUMAN-E-ISLAMIA (REGD.)
CH. MUHAMMAD ARIF. J. Challenge in this petition under Article 185 (3) of the Constitution the Islamic Republic of Pakistan, 1973 has been made to the judgment dated 23-7-1997 passed by a learned Judge in Chambers of the Lahore High Court, Lahore dismissing petitioner-Chief Administrator Auqaf. Punjab, Lahore's F.A.O. No. 153 of 1988 resulting in the upholding of the order/judgment of a learned Additional District Judge. Okara Decreeing the suit for declaration against the petitioner as prayed for i.e.
2. A perusal of the memo. of appeal shows that the following questions of aw have been pleaded by the petitioner in this memo. of petition:'
"(2) That the learned Single Judge of the Lahore High Court held that since 19 Kanals, 13 Marlas of the property in question was not attached to Darbar Baba Baloch and graveyard Ghoray Shah with respect to which a notification was issued under section 7 of the Punlab Waqf Properties Ordinance, 1979, therefore, the petitioner cannot assume its control an management under the provisions of the Ordinance (ibid). This finding has closed the doors for the petitioner to assume control and management under the Waqf Law of a Property, which, as stated above is waqf for all intents and purposes.
"(3) That the evidence adduced by the petitioner and the respondent clearly points out to the fact that the property in question is waqf for all intents and purposes. The trial Court grossly fell in error when it held that this property, although a graveyard and meant for Janazgah, is not waqf. The learned High Court repeated the error by maintaining the finding of the trial Court.
"(4) That the graveyard when all and sundry can be buried, becomes a public graveyard and as such comes within the ambit of Waqf Property being used for religious, pious and charitable purposes.
"(5) That the petitioner took over and assumed the control and management of 42 Kanals. 14 Marlas of land which contains the property in dispute alongwith another 72 Kanals. 9 Marlas as attached to Darbar Baba Baloch and Graveyard Ghoray Shah. 42 Kanals, 14 Marlas being in one compact block, it becomes very difficult for the petitioner to manage and administer the control over this chunk of land after excluding 19 Kanals. 13 Marlas. Being Waqf Property, its management is either to stay with the respondent or the petitioner who is statutory Mutwalli and under the law has to manage and control the Waqf Properties of all nature."
3. It appears that the respondent-Anjuman had applied for and obtained allotment of 19 Kanals, 13 Marlas of land out of 115 Kanals, 3 Marias and 3 sarsahies which was owned by the Provincial Government and was in possession of Municipal Committee for the purpose of graveyard This happened on 6-2-1978, when the then Deputy Commissioner, Sahiwal made allotment to the respondent-Anjuman "for use as Graveyard" and requisite amal-dar-aamad was made in the revenue papers, thereafter. Vide Notification No. SOP-1(3071)A/84 dated 13-11-1986, the then Chief Administrator of Auqaf. Punjab took over and assumed the administration, control, management and maintenance of Darbar Baba Baloch and Graveyard Ghorey Shah situated in Revenue Estate Okara Tehsil Okara District Okara and the attached properties as per the '.Schedule below:
"SCHEDULE
(1) Graveyard Ghorey Shah including Darbar Baba Baloch with Hujra and Verandah measuring 72 Kanals, 9 Marlas and one sarsahi bearing Khasra Nos. 890 and 894, Khewat No. 1331, Khatoni No. 2424 min situated in Mauza Okara ( i-A/4L), Tehsil and District Okara according to Register Haqdaran Zamin for the year 1981-82.
(2) Agricultural land (Maqbooza Ahle Islam Mujawwaza Qabristan) measuring 42 Kanals, 14 Marlas and 2 Sarsahis Nehri bearing Khasra Nos. 887 888, 889, 882, 883, 886. Khewat No. 1331, Khatooni No.2427 min situated in Mauza Okara (1-A/4L), Tehsil and District Okara according to Register Haqdaran Zamin for the year 1981-82.
(3) Income from Cash Boxes.
(4) Offerings and subscriptions trade to the said shrine.
(5) Credit balance, if any of the said shrine."
Respondent- Anjuman filed the suit before the learned District and Sessions Judge, Okara 'on 9-6-1987 which was subsequently assigned to the then Additional District Judge-11 Okara and the parties went on trial on the following issues
"(1) Is the petition within time?
(2) Was the property transferred to the petitioner for graveyard and as such it could not be treated Auqaf. Property and taken over by the respondent.
(3) Is the impugned notification is illegal, ultra vires, and without jurisdiction.
(4) Relief."
Issue No. 1 was not pressed by the defendant and was resolved in favour of the plaintiff/Anjuman. Noticing the statement of Dr. M.H. Qureshi, Secretary Anjuman-e-Islamia in detail, the learned Additional District Judge, relying upon PI being 'Rupt Roznamcha' Waqiati 1977 of 1978 bearing No: 453 allowing the transfer of Khasra Nos. 882, 883, 886, measuring 19 Kanals, ' 13 Marlas to the respondent-Anjuman for use as graveyard, observed "...That the property in dispute is in possession of the plaintiff and was transferred by the District Collector, Sahiwal vide order, dated 6-2-1978. No evidence has been produced by the defendant to prove that the property has been taken over by the defendant Irons the plaintiff or that the disputed property was rot in possession of the plaintiff The defendant has also failed to prove that the disputed property was not transferred to the plaintiff for the purposes of graveyard or that the plaintiff has not constructed a Janazgah, and has also not made the arrangements for electricity supply of water and other necessities. It is also proved on record that no information was sent to the plaintiff regarding notification. Atta Muhammad, Patwari. D.W.1, who appeared for the defendant admitted in the cross-examination that according to record there is graveyard on the disputed property. He also admitted that the said notification does not contain the name of Anjuman-e-Islamia (Plaintiff) to whom the information should have been sent. He admitted that the land it dispute of Anjuman-e-Islamia is graveyard and is not a Waqf property. Therefore I decide issue No.2 in favour of the plaintiff and against the defendant" . Under the issue No. 3 it was held that as the defendant/petitioner-Chief Administrator Auqaf had not sent a notice/information to the plaintiff/respondent-Anjuman regarding the notification as the disputed land was admittedly in its possession, the said issue is also decided in favour of the plaintiff and against the defendant. Further, the learned Judge-in-Chambers dismissed F.A.O. No.153 of 1988 with the following observations --
"(5) I have given my active consideration to the contentions of the learned counsel and perused the record myself. The material issue between the parties is issue No.2 and the admitted facts on the basis of the evidence art as follows:-----.
(i) According to the Jamabandi for the years 1985 and 1986 the land measuring 42 Kanals, 14 Marlas and 2 sarsaies is in the occupation of Anjuman-e-Islamia.
(ii) Rapat Roznamcha for the year 1977-78 according to which District Collector, Sahiwal vide his order, dated 6-2-1978 has allowed the transfer of Khasra in question to Anjuman-e-Islamia fir the use of graveyard:
(iii) That Ata Muhammad Patwari, D.W.1 admitted in the cross -examination that according to report there is graveyard in the disputed property.
Ata Muhammad further admitted that the land in dispute of Anjuman e-Islamia is a graveyard and is not a Waqf Property.
Sole question which is to be decided in this issue is whether the property in question is attached with Darbar Baba Baloch and graveyard Ghorey Shah. It is admitted fact that the appellant did not produce any document before the learned Additional District Judge that the property in question wasps attached with the said shrine or not. In the absence of any proof the appellant has no authority whatsoever, to take over and assume the control of tile disputed property under the provisions of Waqaf Properties Ordinance, 1979 The respondent has placed on record documentary proof that the property was allotted to them in the year 1978 by the competent Authority i.e. Collector vide its order, dated 6-2-1978 and the land in question is in possession of the respondent since 1978 for the said purpose. The respondent bas constructed a Janazgah and also has arranged supply of water, electricity and has also done other electric arrangements. In case the land in question was attached with the abovementioned shrine then the Matwalli of the shrive, could not allow the respondent to manage the affairs of the graveyard in questions."
4. Mr. Mushtaq Raj, learned Advocate Supreme four appearing in support of this petition. was of the view tat as the then Deputy Commissioner was not authorised to allot any part of the property in question to the respondent-Arjuman (on 6-2-1978) and as the objection raised on behalf of the petitioner; defendant in that regard was not reflected in any issue to the case in hand, the entire proceedings are vitiated on that score alone. According to him, Explanations 1, 5 and 6 to section 2 of the Punjab Waqf Properties Ordinance (No.IV of 1979) clearly apply to the property in question and the same being used from tune immemorial for graveyard which is a religious, pious or charitable purpose and is permanently dedicated for the said purposes as also the requisite maintenance of the shrine and/or advancement of any object of charitable, religious or pious nature or of general public utility being involved the respondent-Anjuman could not overreach the purposes afore-referred by obtaining the allotment of disputed land in the year 1978. He concluded his submissions by making a reference to evidence on record generally and that of P.W.1 Dr. M.H. Qureshi, Secretary of respondent-Anjuman, in particular, to contend that the same was deficient to decree the suit, as above. Contrarily, Mr. Jehangir A. Jhoja, learned Advocate Supreme Court appearing on behalf of the respondent/caveatot, has supported the impugned judgment in its entirety by specifically pleading that no question of general public importance stands made out to admit of any proceedings in the instant lis According to him the findings by the learned Additional District Judge as also by the learned Judge in Chambers do not suffer from any legal flaw within the contemplation of clause (3) of Article 185 of the Constitution.
5. We have considered the arguments advanced by the learned counsel for the parties and have also examined the available material, with their help. The plea that the then Deputy Commissioner was not authorised to allot the disputed parcel of land measuring 19 Kanals, 13 Marlas to the respondent-Anjuman or that no issue in that regard was framed, has not impressed us a bit. A perusal of the pleadings of the parties generally and the contents of paras. 1, 2 and 3 of the plaint and the written statement thereto in particular, indicates that the averments in paras. 1, 2 and 3 were not disputed by the petitioner. The learned Judge in Chambers specifically noticed the admitted facts (in para. 5 of the impugned judgment) and came, to the correct conclusion that the decision by the learned Additional District Judge under issue No.2 did not suffer from any factual and legal inaccuracy whatsoever. Similar is the position with regard to the plea that the evidence on the record was not sufficient to decree the suit filed by the respondent-Anjuman. It has been noticed in the above that in addition to the statement made by P.W.1. Dr. M.H. Qureshi the learned Additional District C Judge as well as the learned Judge in Chambers, specifically noticed the statement of D. W.1 and the contents of EXh.P.1. being copy of naqal roznamcha waqiati/ to come to the conclusion that the respondent-Anjuman had succeeded to making out a case in its favour. There is also force in the contention raised on behalf of the respondent-Anjuman that the present is not a case which raises a question of general public importance to admit of any proceedings by this Court.
6. Before parting with the order it may be observed that the learned counsel for the petitioner was at his lowest in contending that respondent- Anjuman was not an aggrieved person to take out any proceedings against the petitioner-Chief. Administrator Auqaf Punjab. The argument that the respondent -Anjuman would not attain the requisite locus under the law of the land, loses sight of the fact that Islamic Law does not prohibit an association of persons p from forming themselves into a society under the law of the land to attain the status of a 'juristic person' with the legal-capacity to take out or defend proceedings in Courts/Tribunals like other individual/citizens.
7. Resultantly this petition fails and is hereby dismissed.
M.B.A./C-41/S Petition dismissed.