2005 PLP 816 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.

In listed petitions, leave to appeal has been prayed against the judgments dated 17th January, 2002, 22nd October, 2003 and 13th March, 2003, passed by Lahore High Court, Lahore. As common questions of facts are involved in these matters, therefore, we intend to dispose them of jointly by means of instant judgment.

2. Precisely stating facts of each case are as under:-- Facts of Civil Petition No.775-L of 2002 Facts in brief leading to filing of instant petition for leave to appeal are that respondents instituted Writ Petition being No.5004 of 1992 before the Lahore High Court, Lahore, on the ground that the management and control of land, measuring 50 Kanals, 53 sq. ft, situated in Mouza Kotli Abdul Rehman, attached to Daras Mian Wadda Sahib, which is Waqaf property, is taken over by the Chief Administrator Auqaf Department vide notification dated 9th August, 1960 under section 6 of the West Pakistan Wakf Properties Ordinance, 1979, who along with the employees of the Auqaf Department have, in a most unscrupulous and outrageous manner appropriated the property to their own use and this has been done by means of lease deed executed in favour of the petitioners for 99 years at the ridiculously inadequate rent of Re.1 per Marla per month. The learned Single Judge in Chambers of the High Court, by means of judgment dated 17th April, 1994, highlighting therein the glaring illegalities committed by the Auqaf Department while leasing out the aforesaid land to the petitioners allowed the writ petition. Concluding para. therefrom is reproduced hereinbelow for convenience:-- 'In view of what has been stated above this petition is allowed. The impugned action of the Chief Administrator Auqaf in granting lease to its employees is declared to be without lawful authority and of no legal effect. The Chief Administrator shall forthwith proceed to repossess the property whereafter it shall be dealt with strictly in accordance with law. He shall pay a sum of Rs.10,000 as cost to the petitioner.' Feeling aggrieved from the judgment of the learned Single Judge, petitioners, preferred Intra-Court Appeal before the Division Bench of the High Court, which has been dismissed by means of impugned judgment. Hence instant petition for leave to appeal. Facts of Civil Petition No.3164-L of 2003 and 299-L of 2004 Precisely stating facts of the case are that properties, dedicated in the name of Mosque Baharwali, situated in the Revenue Estate of Hanjarwal, Tehsil and District Lahore, were taken over by the Auqaf Department vide notification dated 29th July, 1978 under the provision of Punjab Waqf Properties Ordinance, 1979. The Auqaf Department also had taken over the administration management control and maintenance of the aforesaid mosque along with properties. The department subsequently, leased out the properties in question to petitioners at the rate of Re.1 per Marla per month. The respondents being aggrieved filed writ petition before the Lahore High Court, Lahore on the ground that Auqaf Department has no lawful authority to hand over the properties in question to their employees or any other person at cheaper rate, which is violation of mandatory provision of Punjab Waqaf Properties Ordinance, 1979 and action of Auqaf Department is not in accordance with Injunctions of Islam. Learned Single Judge in Chambers of the High Court, after hearing both the sides and having gone through the evidence available on record, accepted the writ petition vide judgment dated 22nd October, 2003, observing as under:-- " .. Respondent No.1 had given the land in question on lease at very meager rate i.e. Rs.1 and 2 per Marla which is not justifiable in any canon of justice. This fact alone is sufficient that the authority has leased out the property in question in violation of the mandatory provision of section 16 of the Punjab Waqf Properties Ordinance, 1979 without applying its independent mind ." Intra-Court Appeal filed by petitioners against the said judgment has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Learned counsel appearing for petitioners in Civil Petition No.775-L of 2002 contended that:-- "The Chief Administrator Auqaf/Secretary Auqaf, Government of Punjab under section 16 of the Punjab Waqf Properties Ordinance, 1979 (hereinafter referred to as "the Ordinance, 1979") floated the housing scheme, therefore, petitioners being low paid employees of the Auqaf Department obtained small plots for raising construction of their houses on a lease period of 99 years, against monthly rental, prescribed in lease deed, at the rate of Re.1 per Marla, but the learned Single Judge in Chambers of the High Court as well as I.C.A. Bench issued the writ contrary to the law, as such interference is called for by this Court."

4. Learned counsel appearing for petitioner in Civil Petition No.299-L of 2004 argued that:-- "The Chief Administrator Auqaf being the Secretary, Auqaf with the concurrence of the Provincial Auqaf Department approved the scheme in exercise of powers under sections 15 and 16 read with rule 7 of the West Pakistan Waqf Properties (Administration) Rules, 1960 (hereinafter referred to as "the Rules, 1960") and allotted plots of land on lease to the employees of the Auqaf Department with a view to save its property from the encroachment as well as to generate funds for the expenditure of Masjid Bahir Wali and the High Court could have not scrubbed the scheme for the reason that the plots have been given to the employees of the same department because they have also got a right to construct their houses for the purpose of providing shelter to their families and being the employees of Government, within the limited resources, it was not possible for them to purchase a plot against high price from the market, therefore, learned High Court may have not interfered in the decision of the Provincial Government as such impugned judgment deserved to be interfered with by this Court."

5. Learned counsel appearing for petitioners in Civil Petition No.3164-L of 2004 adopted the arguments put forward by the counsel for petitioners in Civil Petition No.299-L of 2004. However, he explained that the Chief Administrator, Auqaf had not introduced the scheme himself but later on a plot of 1-1/2 Kanals was given to him on lease on usual terms and conditions.

6. Learned counsel appearing for caveator categorically stated at the bar that in terms of section 16 of the Ordinance, 1978, Chief Administrator, Auqaf had not sanctioned any scheme for providing plots to the employees of Waqf Department out of the Waqf property, which remains with them as a sacred trust, as such the then Administration of the Auqaf Department including the high officials i.e. The Chief Administrator, including Ch. Talib Hussain (Retd.) Secretary Government of Punjab and some other Officers with the collusion of each other prepared the scheme and transferred the plots against the nominal rent to its own employees for a period of 99 years, contrary to law, therefore, the High Court rightly interfered in the matter and cancelled the lease from the name of the petitioners.

7. We have heard the learned counsel for the parties at a considerable length and with their assistance have also gone through the material so made available before us. At this juncture it is to be noted that Mr. S.M. Zafar, learned senior Advocate Supreme Court during hearing of the petition produced an unattested document, duly signed by Mr. Mehmood-ul-Hassan Malik, O.S.D., Auqaf Department, Punjab, Lahore under title "Urdu " to persuade us that the Provincial Auqaf Department floated a scheme, subject-matter of instant petitions, strictly in accordance with law, after having obtained recommendations of the Committee. We are afraid the document cannot be taken into consideration for the decision of instant matter firstly; for want of its evidentiary value in accordance with law and secondly; that it has been prepared under the signature of one of the petitioner Mr. Mehmood-ul-Hassan Malik in C.P. No.299-L of 2004, who was an O.S.D. at the relevant time. It would not be out of context to note that not only low paid employees of the Provincial Auqaf Department were benefited from such scheme but even the high-ups including the Chief Engineers, S.D.Os., grabbed out big plots, measuring 10 to 30 Marlas in their favour against nominal monthly rent of Re.1 per Marla for a long period of lease of 99 years, therefore, the document which has got no legal sanctity behind it and has been executed by a person, who himself is one of beneficiaries of the scheme, can hardly be made basis for decision of instant cases. At this juncture, we are constrained to note that the then Chief Administrator of the Auqaf Department including Mr. Mahmood-ul-Hassan Malik, S.D.O., while submitting parawise comments, instead of supporting the cause of department, looked after their personal interest because they themselves were also beneficiaries of the scheme being the lessees of the plots. Learned counsel appearing for caveator when called upon to explain in this behalf, his reply was that the concessional statement made by the employees against the Governments' interest has no legal value. Be that as it may, we have noted these facts to demonstrate that the then Chief Administrator Auqaf who also enjoys the powers of the Secretary Auqaf, with a view to grab the Waqf property, adopted such devices in the name of the scheme to rehabilitate the low paid employees of the Auqaf Department, in fact for the purpose of serving his/their personal interest(s), by getting huge plots of 30 Marlas etc. in their names. A perusal of section 15 of the Ordinance, 1979 provides that Chief Administrator Auqaf may prepare a scheme for the administration and development of the Waqf property, in respect of which a notification under section 7 of the Ordinance, 1979 has been issued. As far as section 7 of the Ordinance, 1979 is concerned, it deals with the property, which has been acquired by the Chief Administrator Auqaf by issuing notification. However, unless the final notification has been issued and once the property has been taken over and scheme has been prepared for the administration and development of such Waqaf property, but not for the purpose of sale or otherwise, then the property falls within the pool of Waqf property, which can be sold or otherwise disposed of, subject to the provisions of section 16 of the Ordinance, 1979 to achieve the objection mentioned therein. Section 16 of the Ordinance, 1979 is reproduced hereinbelow for reference:-- "

16. Sale of Waqf property by Chief Administrator and application of proceeds.

Government may, (subject to the provisions of subsection (2) of section 15) where it is satisfied that circumstances exist which make it necessary to sell or otherwise dispose of any Waqf property in order:-- (a) to secure maximum economic benefits out of such property and to avoid loss of damage to such property; or (b) to serve the best public interest and public purpose for which such property was dedicated; or (c) to give effect to such wishes of the person dedicating the property as can be ascertained; or (d) in the absence of evidence of express dedication, to enable the property to be used for the purpose for which it has been used or for any purpose recognized by Islam as religious, pious or charitable; or (e) to provide maintenance to those who, on account of unemployment, sickness, infirmity or old age are unable to maintain themselves; or (f) to provide education, medical aid, housing, public facilities and services such as roads, sewerage, gas, and electric power; or (g) to prevent danger to life, property or public health, permit the Chief Administrator to do so and to invest the proceeds in accordance with its directions: Provided that the sale proceeds shall first be applied for satisfying the main purpose of the Waqf." A perusal of above section abundantly makes it clear that except the Government, no one else can prepare a scheme for the purpose of sale or disposal of the property, in order to secure maximum economic benefit from such property or to avoid damage to such property etc. According to section 2 clause (c) of the Ordinance, 1979, "Government" means "the Government of Punjab". As per section 3 of the Ordinance, 1979, the Chief Administrator of Auqaf is to be appointed by the Government for the Province of Punjab and by way of passing an order, the Waqf properties will vest in him. A perusal of subsection (3) of section 3 indicates that office of Chief Administrator is in an independent entity having perpetual succession and an official seal. This provision has been incorporated with the sole object to protect the property which has been vested in him by means of order of the Provincial Government. According to subsection (4), the Chief Administrator shall be subject to the general control of Government. Thus, if it is held that, if for the time being, the Chief Administrator was also enjoying the powers of the Secretary to the Government, Auqaf Department Punjab, he had an obligation to take sanction for the purpose of selling or disposing of the property or otherwise. Since in the instant case, the Government of Punjab has not floated the housing scheme to accommodate the employees of the Auqaf Department, therefore, merely for the reason that in certain documents, referred to by the learned counsel for petitioner(s), the word "Provincial Government" or "Chief Administrator" have been used, it does not mean that the Chief Administrator with the powers of Secretary can dispose of the Waqf Property, against nominal rentals. Besides it according to Rule 7 of the Rules, 1960, the Chief Administrator Auqaf while floating the scheme of the Government property can grant lease only for a period of three years, whereas in the instant case such discretion has not been exercised properly because there is lot of difference between the lease period of three years and 99 years, therefore, such a discretion has also not been exercised by the Chief Administrator Auqaf Department according to law. Thus, under these circumstances, learned Single Judge in Chambers of the High Court as well as I.C.A. Bench, on having taken into consideration all attending circumstances of the case have rightly concluded that even if this property would have been allotted by preparing a scheme by the Government, even in 1987, it would have fetched chunk of money for the purpose of administering the institution like mosque etc. for which the property was dedicated by the owners of the land at the relevant time. In view of above discussion, we see no substance in these petitions, as such the same are dismissed and leave declined. M.H./M-232/S Petitions dismissed.