2004 PLP 532 (MLD)

(4) Whether the petition is not competent? OPR (5) Whether the Court has no jurisdiction to try this petition in view of P.O.No.5 of the written reply? OPR (6) Whether notification in question is ultra vires without jurisdiction of no legal consequence and void if so, to what effect? OPP (7) Relief.

5. The parties led their evidence. Petitioners/respondents examined Abdul Rashid son of Muhammad Ameen as P.W.1. Raja Ali Shan special attorney of the petitioner as P.W.2. Syed Haq Nawaz Shah as P.W.3 and Maj (R.) Mir Shah as P.W.4. Power of attorney Ex.Pl and Waqf deed Ex.P2 as well the notification under section 7 as mark `A' were also produced by the petitioner.

6. On the other hand, the appellant Department examined Qari Muhammad Ramzan as R.W.1 Mian Sharafat Hussain, Manager Auqaf District Rawalpindi as R. W.2. After recording evidence, learned trial Court accepted the application of respondents and declaration as prayed for was granted in favour of the petitioners/respondents.

7. Relevant it would be to point out that Pir Abdul Ghani son of Minnatullah alias Siddique Akbar resident of Astana Sharif Siddiqia Abbotabad, was a person completely committed and devoted to the service of Islam and in that during his lifetime he was known as Pir Sahib and he had a large numbers of followers in all the Provinces of Pakistan.

8. During his lifetime through registered Waqf deed Ex.P2 which was duly registered with the Sub‑Registrar Abbotabad 9th February 1997. Pir Abdul Ghani has constituted a Waqf and in that specified the properties and given out conditions and limitations to administer these Waqf properties. He had appointed Abdul Qadeer Khan son of Abdul Rahim resident of Lal Kurti Rawalpindi and Jameel Ur. Rehman Khan resident of Bungalow No.284, James Father Road, Opposite Purani Namaish, Karachi as Mutawallis. These Matwallis were given further rights to appoint their successors. It was also provided in the Waqf‑deed that the Matwallis should belong to Hanfi School of thought and Silsala Naqshbandia, Qadria, Siddiqia.

9. The learned counsel appearing for the appellant contended that the notification under section 7 of the Waqf Ordinance, 1979 which was impugned before the District Judge, could not be set aside because the property was Waqf and it was admitted by the respondents. Secondly, it was argued that when the property is admittedly a Waqf property then only the order relating the administration of the Waqf could be passed and no order for setting aside the notification could be made by the Court below Thirdly it was urged that the Waqf deed and conditions therein could not override the provision of Punjab Waqf Properties Ordinance, 1979. The learned counsel placed reliance on preamble definition of the Waqf property given under section 2 and section 7 of the Ordinance.

10. Opposing the arguments learned counsel for the respondent argued that notification under section 7 has to stand the test as contained under sections 11, 15(2) and 17 of the Ordinance and in the light of facts brought on record, the judgment of the trial Court was proper and does not suffer with any legal infirmity.

11. After hearing the arguments advanced by the learned counsel for the parties, I have gone through record of the case. Admittedly, the Waqf was created by Pir Abdul Ghani during his lifetime through a registered Waqf‑deed which is Ex.P

2. Pir Sahib appointed himself as Matwalli of the Waqf during his lifetime and after his demise he nominated respondents as Mutwallis. He laid down limitations for administration of the Waqf which were as under:‑ (a) The entire property of the Waqf was to be spent for continuation of the Waqf in accordance with the Silsila Naqshabandia, Mujjaddidia, Qadria, Siddiqia on the basis of principle of Tariqat and for propagation of the Silsilas also to extend and promote mosque educational institutions and for that also to spend thereon. (b) To manage and spend on the construction and expansion of guest house Aasstana‑i‑Siddiqia situated in Gulistan Colony, Rawalpindi and Abbotabad and also on the mosque attached to the Aastana and also on the Langers. (c) The salary of Imams for the mosque was to be paid from the income of the Waqf. (d) Expenditure on every six monthly Urs to be held in July in Abbotabad and in October in Rawalpindi shall be continued. (e) Expenditure on Darasgah situated at Topi Tehsil Rawalpindi on its construction and expansion etc. (f) To incur expenditure on Darasgah situated in Nawab Colony, Sargodha and to construct, repair and expand Darashgah and attached mosque including the payment to Imam etc. (g) To incur expenditure on mosque, tubewell and houses situated in Chak No.9 Gur Bakhshpura Tehsil Phalia District Gujrat. (h) To incur expenditure on agricultural land and residential houses attached to the Waqf. (i) In the event of saving from the income, arrange for `Hajj' or persons deserving and qualified for the same. (j) Only those persons would be appointed or nominated for the Waqf who would belong to Silsila Naqshbandia, Mujaddidia. Qadria, Siddiqia. (k) To look after the persons men and women who were appointed to manage the Langar.

12. The Waqf deed described the aforementioned limitations for bringing about the management, control of the Waqf property by the Matwallis. The Auqaf Department through notification under section 7 which was impugned by the respondents took over the control of the Waqf property and started managing the same.

13. Case set up by the respondents was that the Auqaf Department completely ignored the condition of the Waqf and after taking over the property they have completely disregarded the limitation given out in the Waqf deed by the Waqif himself. Section 11 of the Punjab Waqf Properties Ordinance, 1979 contemplates that a notification issued under section 7 may be put to challenge by any person and having any interest in the Waqf property and that he may seek a declaration firstly that the property is not a Waqf property and secondly that the property is Waqf property within the limits stated in the petition. The respondents sought a relief in terms of sub‑clause(b) of section 11 of the Ordinance and in that produced the evidence.

14. At this juncture it would be advantageous to reproduce the provision of section 11 of Punjab Waqf Ordinance, 1979. "

11. Petition to District Court against notification ‑‑‑(1) Any person claiming any interest in any Waqf property in respect or which a notification has been issued under section 7 may, within thirty days of the publication of such notification petition the District Court within whose jurisdiction the Waqf property or any part thereof is situated for a declaration:‑‑ (a) that property is not Waqf property: (b) that the property is Waqf Property within the limits stated in the petition. Proviso

15. Section 11(1)(b) contemplates for issuing a declaration that the property is a Waqf property within the limits stated in the petition as against a Notification issued under section 7 of the Ordinance. From the language of section 11 it implies that a notification issued under section 7 can be challenged by any person claiming any interest in the Waqf property and may seek a declaration that the said property is not a Waqf property as envisaged under section 11(1)(a) or seek a declaration that it is a Waqf within the limits stated in the petition. Sub‑clause (b) is not happily worded but intention of law appears to be that a declaration could be made that the Waqf property is a Waqf but it has certain limits. The expression "limit" here means condition. Normally, in the Waqf which are Waqf by virtue of a dedication having its roots in past immemorial are taken to be Waqf on the basis of past practice, tradition and conduct. On the other hand, there may be a specific Waqf which is created by the dedicator through a registered Waqf‑deed, specifying the limits and conditions for regulating, managing and supervising the Waqi created and purpose is also given out in the Waqf‑deed. In the latter case, the condition contained in the Waqf‑deed would constitute condition or limits as spelled out in sub‑clause(b) of section 11 or Punjab Waqf Ordinance, 1979. In case any condition is in conflict: with the taking over of that Waqf property under section 7 and harmony is nor possible in such a situation the limits of the Waqf property would prevail and a notification under section 7 would have to be struck down through a declaration as contemplated in sub‑clause (b). Section 17 of the Ordinance further provides that subject to the provision of the Ordinance, a Waqf property shall be used for the purpose for which it was dedicated or has been used or .for any purpose recognized by Islam as religious, pious or charitable, as Chief Administrator may deem fit. In the instant case through the registered Waqf‑deed Ex.P‑2, petitioners were appointed Matwallis, to manage, control and supervise the Waqf Property and also a mode for successors of the Matwallis was spelled out in Waqf deed. Scrutiny of Ex.P‑2 revealed that the Waqf was created by Pir Abdul Ghani with specific purpose as given out in the registered Waqf deed and other conditions regarding the regulation of the Waqf have also been enunciated. One of the condition given out in Ex.P‑2 was that the petitioners were appointed as Matwallis to supervise and control the Waqf properties. In the event of taking over by the Auqaf Department the condition of the Waqf‑deed relating to Matwallis would be frustrated as such for issuing a declaration in terms of the limits stated in the petition and as spelled out in Ex.P‑2, the notification of take over under section 7 of the Ordinance was not sustainable. Section 17 of the Ordinance thus provides that the Chief Administrator shall manage the Waqf according to the wishes of the dedicator but it does not provide any solution, in the peculiar circumstances of the case, because herein the dedicator specifically named the petitioners as Matwallis to run the affairs of the Waqf. The condition of Matwalli is not reconcilable with a notification of take over issued under section 7 of the Ordinance consequently a declaration in terms of section 11 (b) would be followed declaring the notification impugned through the petition as not legally tenable.

16. For deciding the petition of the respondents, the trial Court settled issues from the pleadings in the following terms:‑‑ "(1) Whether the petitioners have no locus standi to challenge the impugned notification? OPR. (2) Whether the petitioners have no cause of action? OPR (3) Whether the petition is not maintainable? OPR. (4) Whether the petition is not competent? OPR. (5) Whether the Court has no jurisdiction to try this petition in view of P.O No.5 of the written reply? OPP (6) Whether notification in question is ultra vires, without jurisdiction, of no legal consequence and void, if so, to what effect? OPP. (7) Relief.

17. Petitioners/respondents produced Abdul Rashid as PW.1, Raja Ali Shan, special attorney as P.W.2, Syed Haq Nawaz as P.W. 3 and Maj. (R.) Mir Shah as P.W.4. Documentary evidence was also produced in the form of a power of attorney Ex. P.1, Waqf‑deed Ex. P‑2 and notification under section 7 as mark `A'. Respondents/appellants on the other hand, examined Qari Muhammad Ramzan as R.W.1 and Mian Sharafat Hussain Manager Auqaf Department. District Rawalpindi, as R.W.2. No documentary evidence was produced by respondents/appellants.

18. After recording the evidence, the trial Court, evaluated the evidence on record and decided Issues Nos.1 to 6 in favour of the petitioners/respondents and against the.. Department and granted the declaration as prayed for. Relevant it would be to point out that the petitioners/respondents prayed that notification under section 7 of the Ordinance be declared without jurisdiction, of no legal consequence and sought a declaration that the Waqf Property be immune from taking over in view of limitations. In deciding Issue No.6, on merits, the trial Court found that Ex.P‑2 contained the condition and that the Auqaf Department failed to manage control and supervise the Waqf In the light of limits/conditions of the Waqf. It was observed by the trial Court that R.W‑1 admitted in cross‑examination most of the facts and R.W‑2 the Manager Auqaf had no hesitation to acknowledge that he had not gone through the Waqf‑deed and did not know the terms and conditions contained in Waqfnama. It was further observed that the Department failed to negate the evidence brought by the petitioners/respondents.

19. With the help of learned counsel for the parties, I have gone through the evidence of the parties and find that the findings of the trial Court are well founded. The Auqaf Department had taken over the Waqf property of late Pir Abdul Ghani but did not control, supervise and regulate the same according to the limits given in the registered Waqf- deed and even did not care to find, out those conditions and limits.

20. The upshot of the above discussion is that the trial Court has properly evaluated the evidence and drawn conclusion correctly. As it has already been observed that a declaration under notification of take over could be issued under section 11 (b) of Waqf Ordinance, 1979 therefore, instant appeal of the Department lacks substance. Resultantly, 6 the same is dismissed.

21. Before parting with this judgment, it is pointed out that Hafiz Saeed Ahmad Sheikh, filed an application on behalf of Pir Soofi Muhammad Ameen under Order 1, rule 10 C.P.C., for seeking impleadment as one of the respondents. During the course of arguments, he prayed that he has already filed a separate civil suit claiming to be the descendant of (late) Pir Abdul Ghani and he would not press for his impleadment, if his suit already pending against respondents/Matwallis, is not affected by this judgment. The appellants or the respondents in appeal did not object to his request.

22. Accordingly, it is observed that the judgment in the present appeal may not be taken to cause any prejudice to the rights of Pir Soofi Muhammad Ameen nor would affect the merit of the suit filed by him independently. S.A.K./C‑235/L Appeal dismissed.