P L D 1965 (W (PLP)

As clauses (a) and (b), reproduced above, constitute the entire scope of the inquiry, the learned Judge could, according to counsel, either come to the conclusion that the property was or was not waqf and could also come to the conclusion if it was waqf then it was so within the limit stated in the petition, but could not enquire as to whether a person who claimed to be the lessee had a subsisting lease or not. As the enquiry in this case was outside the limits of section 7, according to counsel, the District Judge had no jurisdiction to hold it in view of the widely expressed provisions of section 17, which is as follows :‑-- " 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 this 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," Counsel supplemented the above argument by urging that the learned District Judge was wrong in setting up the document of lease against the powers of the Chief Administrator of Auqaf because the document was not binding on that officer in terms of section 18 of the West Pakistan Ordinance XXVIII of 1961 an which is as follows: -- Every order made and every action taken under this shall have effect notwithstanding anything inconsistent therewith contained in any document, decree or order of any Court, deed, enactment or any instrument having effect by virtue of any such enactment other than this Ordinance," When I heard counsel for the appellant on a previous date and found that the Chief Administrator of Auqaf insisted that no document, decree or order of any Court, deed, enactment or any instrument, was binding on him when he acted under the I felt that the claim was not based on correct appreciation of section 18, because if that view was granted, then it would amount to making the Chief Administrator of Auqaf so it powerful an officer as to be beyond the control of any authority in the country for checking him even when he happened to commit within very broad limits, a worst possible mis‑deed. I put it to his counsel as to what power there was in the country to prevent the Chief Administrator from setting fire to a mosque. Counsel replied that the Officer would never do such a thing. I dare say that he would not, but there are many things which may in the view of those who are interested in a waqf property appear to be equally unreasonable. Counsel's reply was that in spite of it, the Chief Administrator's power was supreme. I had therefore issued notice to Mr. Mansoorul Arifeen to appear amicus curiae which he did at the last hearing and has rendered valuable assistance in understanding the scope of the Ordinance.

3. A good deal of the argument that could be advanced on behalf of the parties was curtailed because of a judgment of the Supreme Court in Inayat Ullah v. M. A. Khan (P L D 1964 S C 126). Their Lordships have observed in it after setting out section 18 of the Ordinance, as follows:‑-- "The preamble to the Ordinance declares that it is expedient to consolidate and amend the laws relating to the management of waqf properties in the Province of West Pakistan. This, in our opinion, provides a key to the interpretation of the various provisions of the Ordinance. The main object before the legislating authority was obviously the proper management of waqf properties." Their Lordships have also interpreted the word "control" which occurs in section 6 of the Ordinance and have pointed out that its meaning should be in consonance with the purposes and objects of the Ordinance itself. It appears that emphasis was laid before their Lordships on the powers of the Chief Administrator of Auqaf to disregard the decrees and orders of and Court because their Lordships have observed in the penultimate paragraph of their judgment as follows:-- "The Chief Administrator, Auqaf, and the manager appointed by him are creatures of a statute and despite the provisions of the Ordinance shutting out jurisdiction of the ordinary Courts in respect of orders passed or acts done under the Ordinance, the corrective processes of the civil Courts would be available if these functionaries exceed their statutory powers."

4. In connection with the limits on the powers of the Chief Administrator of Auqaf reference may profitably be made to subsection (2) of section 11 of the Ordinance, which is as follows :‑‑ "In the settlement of a scheme the Chief Administrator shall give effect to such wishes of the person dedicating as can be ascertained, and to which effect can be reasonably given." The above provision makes it incumbent on the Officer to give effect to the wishes of the dedicators. There is a further limitation on the powers of the Chief Administator in section 13 of the Ordinance, which is as follows:-- "Subject to the provisions of this Ordinance, a waqf property shall be used for the purpose for which it was dedicated or has been used or for any purpose recognised by Islam as religious, pious or charitable, as the Chief Adminis trator may deem fit." The above provision makes it necessary that the purpose of the dedication and the use to which a waqf property has been put should guide the Chief Administrator.

5. If the powers of the Chief Administrator are restricted as indicated above, then the argument of his counsel that under section 18 of the Ordinance he can disregard any document, decree, order of any Court, deed, enactment and any instrument is not very correctly conceived. The scope of section 7 of the Ordinance must, no doubt, govern the proceedings conducted in the District Court under that section; but clause (b) of that section refers to the limits which might be existing on a waqf property. The provision refers to "the limits stated in the petition", and Mr. Mansoorul Arifeen argued that an encumb rance existing on a waqf property was such a limit. In this case, A the claim of the respondent was that he was a lessee and that the commitment of lease had been made by the previous Mutawalli; therefore, the Chief Administrator could not, owing to his assumption of the control, and management of property, repudiate that commitment without any reason for doing so. The reason could, for instance, be that the previous Mutawalli did not have the power to make that commitment of lease, or had acted fraudulently or against the purposes of the waqf or usage but could not disregard that commitment simply because he chose to do so.

6. The above stand of Mr. Mansoorul Arifeen appears reasonable and sound to me, but counsel for the appellant insisted that the Chief Administrator was, by virtue of his powers of administration, control and management of the property, free to disregard the lease deed and to treat the respondent as if he had nothing to do with the property and had no say in the matter. But this conception does not appear to be correct.

7. In conclusion of the foregoing I hold that the learned District Judge, whose order is being questioned, had the jurisdiction to enquire into and decide as to whether the lease b deed was valid and subsisting or not. It was, of course, open to, the Chief Administrator to object to its validity and legar subsistence. His counsel has urged that this aspect was not pressed before the learned District Judge although, as pointed out by Mrs. Saleema Nasiruddin counsel for the respondent the learned District Judge has considered this question and decided it against the appellant. I would not like to express any opinion as to the correctness or otherwise of the order of the learned District Judge in this respect because the entire emphasis of the Chief Administrator in those proceedings was on the absence of jurisdiction of the learned District Judge. It is possible, therefore, as argued by counsel for the appellant, that the question of the validity of the lease deed was not agitated with sufficient care. In order to give an opportunity to the present appellant to question the validity and subsistence of the lease deed, it would be proper to set aside the order of the learned District Judge and to remand the case for re decision.

8. The overall conclusion therefore is that the learned District Judge has the jurisdiction under section 7 of the Ordinance to consider the validity and subsisting nature of the lease deed, and this case is remanded ‑to him for deciding this question. Counsel for the appellant points out that the lease is due to expire on the 15th of February 1965, but questions are likely to arise regarding the correct action that may have to be taken at its expiry. Therefore, it would be useful to remand this case for the proposed inquiry but counsel for the parties request for directions that the matter may be disposed of expeditiously. The parties are, therefore, directed to appear before the learned District Judge, Khairpur Mir's on the 15th of December 1964, as requested by counsel for the parties and it is expected that the learned District Judge will dispose of this matter without unnecessary delay.

9. The parties are to bear their own costs. K.B.A. Case remanded.