2003 PLP 464 (SCMR)

ISSUE NO. 1 Objection as to limitation has to be decided against the respondent as well. Ilam Din being a transferee of the property in question under Act XXVIII of 1958, which was formerly an evacuee property and stood acquired thereunder and he after its transfer through PTD could raise a shop.. The impugned notification whereby the shop was declared as Waqf was of no legal effect as the Act XXVIII being Central Act overrides of the laws including the provincial law, that is W.P. Waqf Properties Ordinance, 1961 under Article 143 of the Constitution of Pakistan. The impugned order being destitute of legal efficacy cannot attract the provisions of mischief of Limitation Act as ruled by the High Court in case Re: Syed Mahmood Alam v. Syed Mehdi Hussain and others, cited at PLD 1970 Lahore

6. Ignoring the said proposition of law, the respondent has no case even on merits. Umar Din had been served with the notice Exh.R.W.2/A on 3‑10‑1967. The respondent has asserted to have issued notice long before 1960 but no good evidence has been adduced in support of the said plea. After receiving the notice on 9‑10‑1967, Umar Din had challenged the notification on 16‑10‑1967, that is within thirty days of receipt of the notice. The action was brought well within time. For the reasons aforementioned, I accept the petition with costs and declare the shop in question to be property of the petitioners and the impugned notification as illegal, void, ultra vires and inoperative qua the rights of the petitioners." The judgment passed by the learned District Judge was challenged by the respondent by way of F.A.O. No.34 of 1991 before Lahore High Court, Lahore, and a learned Single Judge vide impugned judgment dated 19‑12‑1994 allowed the appeal firstly on the ground that at the time of issuance of notification under section 7 of West Pakistan Waqf Properties Ordinance, 1961, Channan Din, predecessor‑in‑interest of the appellants, had no right or interest in the property as PTD was issued in his favour in August, 1964, therefore, he had no locus standi to challenge the notification and secondly the notification under section 7 of West Pakistan Waqf Properties Ordinance, 1961 could be challenged within 30 days from the date of its issue whereas the appellants filed an application under section 7 of the Ordinance after about 7 years of the issue of notification. It was concluded by the learned Judge in the High Court as under:‑‑ "

7. Furthermore, as the notification in the present case was issued on 21‑12‑1960, the application filed on 16‑10‑1967 by the predecessor -in‑interest of the respondent was clearly barred by time as section 7 of the West Pakistan Waqf Properties Ordinance, 1961 provides a period of 30 days from the date of notification .for filing such a petition. The predecessor‑in‑interest of the respondents did not come into picture till the property was allegedly transferred to him in 1964. By that time, the application had become badly barred by time and on no principle of law could he claim the limitation would run after he had obtained the knowledge of the notification when admittedly he had no right in the property when the notification was issued. In view of what has been stated above, this appeal is allowed the impugned order is set aside and the application under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 filed by the respondents stands dismissed. No order as to costs. " Leave in this appeal, was granted vide order, dated 15‑11‑1995 as under:‑‑ "In seeking leave to appeal, the learned counsel for the petitioner firstly, contended that this period of 30 days could not be applied in the present case as the property itself was transferred in favour of predecessor of petitioner about 4 years after the notification treating it as an evacuee property, was issued. It is, accordingly, contended by the learned counsel for the petitioners that the property having been acquired under the compensation pool constituted under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, the same could not be acquired by the respondent as a Waqf property under the Ordinance. The contentions raised by the learned counsel for the petitioners require examination and we, accordingly, grant leave to appeal to consider the same." The pivotal question for determination in the present case would be whether the shop in question was a Waqf property and if so, who was its original owner and when it was dedicated. The Waqf property has been defined under section 2(d) of the West Pakistan Waqf Properties Ordinance, 1961, as under:‑‑ "Waqf 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 (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 by any member of his family or descendants. Explanation

1. If a property has been used from time immemorial for any purpose recognized by Islam as religious, pious or charitable then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf property Explanation.2. Property allotted in lieu of or in exchange of Waqf property left in India shall be deemed to be Waqf property. Explanation

3. Property of any kind acquired with the sale proceeds or in exchange of, or from the income arising out of Waqf property or from subscriptions raised for any purpose recognized by Islam as religious, pious or charitable shall be deemed to be Waqf property. Explanation

4. The income from boxes placed at a shrine and, offerings, subscriptions or article of any, kind, description or use presented to a shrine or to any person at the premises of shrine shall be deemed to be Waqf property. Explanation

5. Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes. Explanation

6. Property permanently dedicated for the purposes of a mosque, Takia, Khankah, Dargah, or other shrine shall be deemed to be Waqf property. The Chief Administrator, Auqaf, upon taking over the Waqf property in his control by issue of notification under section 6 of the West Pakistan Waqf Properties Ordinance, 1961 is empowered to evict the persons in possession of Waqf property. However, any person having interest in the property taken over by the Administrator if claims that it was not a Waqf property can seek such a declaration by tiling a petition under section 7 of the ibid Ordinance before the District Judge within whose jurisdiction the property is situated. The case of the predecessor‑in‑interest of the appellants was that the land underneath the shop was an evacuee property which was transferred to him in 1964 and that shop was not a Waqf property. In support of this claim, he produced oral and documentary evidence. The respondent, on the other hand, without bringing any evidence on record in rebuttal, claimed that shop was the property of mosque. The disputed shop construed on the evacuee land being adjacent to the shop of mosque, would apparently create an impression that it was part of the mosque and the Administrator e probably under the same impression while raising a presumption that it was Waqf property, included it in the notification issued under section 6 of the West Pakistan Waqf Properties Ordinance, 1961. The respondent has not established on record through any evidence that the shop in question was owned by a Muslim which was part of Waqf. In absence of any proof of the shop being a Waqf property, the Chief Administrator Auqaf would have no jurisdiction to issue notification under section 6 of the West Pakistan Waqf Properties Ordinance, 1961 treating the shop as Waqf property and made such a declaration. The Chief Administrator Auqaf can exercise power under section 6 of the Ordinance if the Waqf is already in existence and in a case in which the notification is issued in respect of a property which was not a Waqf property, the aggrieved person on coming to know about the issue of such notification can conveniently challenge the same before the appropriate forum and seek the declaration that the property was not a Waqf property. The perusal of record would show that the shop in question was constructed on an evacuee property which was transferred to predecessor‑in -interest of appellants in 1964 and as observed in the preceding paragraph, the Chief Administrator Auqaf at the time of issuance of notification under section 6 of the West Pakistan Waqf Properties Ordinance, 1961 due to the location of shop presumed that it was part of the property attached with [ mosque and was a Waqf property. The prerequisite of issue of notification under section 6 of West Pakistan Waqf Properties Ordinance, 1961 is that property must be Waqf and if there is no proof of Waqf, the Waqf Ordinance 1961, would not be applicable. The Chief Administrator of Auqaf, cannot by raising presumption of Waqf, take over any property which is not definable as Waqf property under section 2(d) of the Ordinance in question. The mere fact that the shop was adjacent to the shops forming part of Waqf would not be an evidence of Waqf to bring it within the purview of section 2(d) ibid and notify the same under section 6 of the said Ordinance. The appellants came to know about the issue of notification under section 6 of the Ordinance only on receipt of, notice of eviction sent to him by the Auqaf Department and he without wasting any time filed a petition under section 7 of the said Ordinance. The appellants were in possession of shop as its owners without any interruption in the intervening period, therefore, the limitation for the purpose of section 7 ibid in the present case would start from the date of knowledge and not from the date of publication of the notification under section 6 of the Ordinance: The learned Judge in the High Court without properly attending the character of the property and considering the question of limitation, non‑suited the appellants on technical grounds. For the foregoing reasons, we while setting aside the judgment of the High Court in F.A.O. No.34 of 1991 restore the judgment dated 22‑12‑1990 passed by the District Judge and allow this appeal. There shall be no order as to costs. Appeal allowed.