P L D 2003 Lahore 810 (PLP)

"This seems to be a fair offer. The petitioner may, in the first instance, approach the Department in this regard. It is clarified that the Department shall dispose of the representation of the petitioner, if made, by a 'speaking order'." The representation filed by the appellant was rejected. He again challenged the notification, as also the order of the Department through Writ Petition No.2862 of 1975 which was dismissed vide judgment dated 22‑11‑1992, holding that the petition is incompetent; the appellant has no locus standi. Moreover, it was also held that "even on merits, the petitioner has no case. Property could be dedicated by way of gift as provided in paragraph (151) of the book Mulla on the Principles of Mohammedan Law', referred to above and admittedly, the property in question is being used as a Waqf property since time immemorial, therefore, it cannot be said that the disputed property was not a Waqf and therefore, could not have been taken over by respondent No. 1". The appellant challenged this order in Intra‑Court Appeal No.429 of 1992 which was dismissed, but the findings of the learned Single Judge in Chamber on merits, were expunged and it was declared that "it will be open to the appellant to seek remedy before the learned District Judge, in accordance with law".

5. In the above backdrop, the appellant on 31‑10‑1994, brought a petition under section 11 of the Punjab Waqf Properties Ordinance, 1979 which was disallowed by the learned District Judge, vide order dated 11‑6‑1998, as being barred by time. This order was assailed by the appellant through First Appeal from Order No. 126 of 1998, which was accepted and the case was remanded with the following directions:‑‑ "The case is remanded to the learned District Judge, who shall frame issues arising out of the petition under section 11 of the Ordinance, including the issue of limitation and shall decide the petition afresh after recording evidence and in the light of observations hereinabove. " In the post remand proceedings, the Court below framed the following issues:‑‑ (1) Whether the petition has been filed by the petitioner with mala fide intention? OPR (2) Whether the petitioner is estopped to file the present petition by his own words and conduct? OPR (3) Whether the petition is within time? OPA (4) Whether the petition is not maintainable in view of preliminary objection No.4 of the written reply? OPR (5) Whether the petitioner has no cause of action? OPR (6) Whether the petition is liable to be dismissed under section 11 of C.P.C. (7) Whether the Notification No. DWP.1(219)72, dated 31‑1‑1974, and order dated 9‑10‑1975 passed by the Chief Administrator Auqaf is illegal, against the facts, collusive, mala fide, based on fraud and not binding upon the rights of the petitioner? OPA (8) Relief, After enabling the parties to lead evidence, on the conclusion of the trial, the learned District Judge, dismissed the petition, vide order dated 10‑2‑2001, finding that the property in question is a "Waqf property" and has been rightly so declared and taken over by the Auqaf Department; that the appellant has no locus standi to file the petition; besides the petition is barred by time.

6. Learned counsel for the appellant by relying upon the definition of the, "Waqf property", given in section 2(d) of the West Pakistan Waqf Properties Ordinance, 1961, has argued that the "Waqf property" means only that property which has been dedicated by a person professing Islam, for pious, religious or charitable purpose. But in the instant case, Boota Singh who gifted the property to the Darbar was Sikh by faith, therefore, such an alienation does not fall within the above definition and thus the Chief Administrator of the Auqaf had no jurisdiction to take over the property under the law.

7. However, it has been con ceded by the learned counsel that the gift was actually made in favour of the Darbar Baba Mahi Shah, and not to its Mutwalli. Despite the above concession, I have noticed that though the gift deed has not been placed on record by either of the parties, but according to Exh.A‑5, the mutation based thereupon, the property undoubtedly was gifted to the Khanqah and not to its Mutwalli, therefore, no right or interest whatsoever, in the property, was created in favour of the appellants predecessor which could devolve upon him.

8. Anyhow, according to paragraph 151 of the Mohammedan Law by Mulla, there is no bar upon a non‑Muslim to transfer his property as a gift through the medium of trust in favour of an Islamic religious institution; this is exactly what has happened in the present case. Thus once a valid gift in terms of Mohammedan Law was made to the Darbar, which sticto senso may not be a juristic person, but with the meaning of law, was, capable of acquiring and holding the property in its name, therefore, the gifted property merged into the already existing Waqf without there being a specific dedication by the non‑Muslim. This property admittedly was and is being used since the year 1913, as vesting in the Darbar, thus irrespective of any dedication being shown to have been made by a person not professing Islam the property was acquired by Darbar. In view of the above, I am constrained to hold that the property in question, since the time of its gift had actually vested in the Darbar and had formed part of the property belonging to it. The judgment reported as PLD 1991 SC 596 (The Chief Administrator Auqaf, Punjab, Lahore v. Koura alias Karam Elahi, etc.) is distinguishable on its own facts, because in the above dictum, the question was about the inheritance of the property and not that of a gift having been made by a non‑Muslim to the Khanqah, as is the position in the present case.

9. The appellant never claims that Boota Singh had made gift of the property in favour of his predecessor, therefore, even if the property has been taken over by the Auqaf Department, which does not belong to the appellant having no independent right or interest in the property, the appellant has no locus standi to challenge the impugned notification. I uphold the findings of learned Court below on Issues Nos.6 and 7.

10. As far as issue of limitations is concerned, learned District Judge, has held that the petition under section 11 was filed on 18‑7‑1974, challenging the notification dated 31‑1‑1974, resultantly; the petition is barred by time, having been filed beyond the prescribed period of thirty days, suffice it to say that section 5 of the Limitation Act, has not been made applicable to the petition under section 11 of the Ordinance, yet if the appellant was entitled to the benefit of section 14 of the Act, on account or his earlier agitating the matter before this Court, which petition was dismissed as being incompetent; the appellant should have moved a separate application for the exclusion of the specific time spent in the earlier round. In the instant case, not only that no such application has been moved, the appellant has not even sought the exclusion of time in the main body of his petition. Moreover, according to section 14 and the Explanation No. 1 thereto the person seeking benefit of the section, is required to establish the exact time, which he consumed in prosecuting the earlier litigation. But in the instant case, the notification as mentioned above is dated 31‑1‑1974, and the writ petition was instituted on 30‑9‑1974, meaning thereby that the period or thirty days had expired even before, the institution of the writ petition, therefore, the period during which the writ petition, remained pending cannot be excluded, when the petition, of the appellant under section 11 had already become barred, by that time. Resultantly, section 14 of the Limitation Act, has no application to the facts and circumstances of the case therefore, the decision of learned Court below, on the issue of limitation is unexceptional. In the light of what has been stated above, this appeal has no merit and the same is hereby dismissed. M.B.A./M‑2217/L Appeal dismissed.