1980 PLP 378 (CLC)

FAKHRUDDIN G. EBRAHIM, J.-The Chief Administrator of Auqaf, West Pakistan in exercise of the powers conferred on him by section 6 of the West Pakistan Wakf Properties Ordinance, 1959, took over and assum med the administration, control, management and maintenance of the wakf properties attached to, the shrine of Hazrat Shah Mohammad Maki alias Jiay Shah inside Katcha Fort, Shah Maki Road, Hyderabad City, detailed in the schedule as follows :- "Dargah of Shah Muhammad Makai alios Jiay Shah inside Katcha Fort Masjid, Pir and graveyard with 5 houses, 1 Musafirkhana, 6 karcha shops, 1 water pump, one piece of and with trees for shade all situated in S. No. 154, of Deh Nareja, Taluka Hyderabad Shah Maki Road, Hyderabad City. Boxes placed at the Dargah and Masjid and offerings and subscriptions made thereto, This notification was published in the Extraordinary Gazette of West Pakistan dated 25th January. 1961.

2. One Din Mohammad filed a petition to the District Court, Hyderabad under section 7 of the West Pakistan Wakf Properties Ordi nance, 1959. This Petition was filed on 6th March 1961. The Additional District Judge by his order dated 27th February 1965 partly allowed this Petition inasmuch as he held that five houses situated on Survey No. 154 did not form part of a public wakf and that in so far as the graveyard within the fort was concerned, the petitioner, his family and his descendants had burial privilege to the exclusion of others. Both the Chief Adminis trator of Auqaf and the Petitioner filed separate appeals under section 8 of the said Ordinance, and these were numbered respectively 53 of 1965 and 11I of 1965. In so far as the latter appeal of Din Mohd. is con cerned the same was dismissed by this Court on 10th November, 1969 as having abated.

3. Mr. Ajmal Mian, the learned counsel for the appellant in M. A. 53 of 1965 made two submissions. His first contention was that the learned Additional District Judge entertained a time-barred petition filed by Din Mohammad under section 7 of the said Ordinance inasmuch as the Petition was not filed within 30 days of the notification issued by the Chief Administrator under section 6 of the said Ordinance. His second contention related to challenge on merits the findings of the learned Additional District Judge on the questions of the five residential houses and privileged graveyard.

4. As regards the petition under section 7 filed by the petitioner Din Mohd. the learned Additional District Judge held that the notification envisaged in section 7, was not a notification published in the Gazette of West Pakistan but a notice to the person affected by the order of assumption of trust properties. He held the petition to be in time on the ground that it was filed within 30 days of the knowledge of petitioner of an order under section 6 of the said Ordinance.

5. Mr. Ajmal Mian, the learned Counsel for the petitioner argued that section 7 should be read with section 6 and if so read it would be clear that the notification referred to in section 7 is clearly the notification contemplat ed by section 6 of the said Ordinance. I have read both these sections and I find that the argument is sound, for section 7 itself refers to "notification issued under the last preceding section". The question. therefore, that arises is whether the notification contemplated in section 6 is one that is to be published in the Gazette of West Pakistan or is it one which should be addressed to the petitioner. The word "notification", as ,t was pointed out by Mr. Ajmal Mian, is defined in the West Pakistan General Clauses Act, 1956 as meaning a notification published under proper authority in the official Gazette. The learned counsel- is, therefore, right that the same meaning should be given to the word "notification" under section 6 of the said Ordinance. The argument finds indirect support in a decision of Supreme Court reported in Syed Mohammad Ali Shah Bukhari v Chief Administrator of Auqaf (1972 S C M R 297) in which it was contended on behalf of the appellant that before notification under section 6 was issued the appellant should have been given a notice of hearing which, contention was repelled by their Lordships of the Supreme Court. In that case ton what was published was notification in the Gazette issued under section 6 on the said Ordinance.

6. Since it is not the case of the respondents, that section 5 of the Limitation Act was applicable, it will follow that the petition under sec tion 7 filed by Din Muhammad was barred.

7. On merits Mr. Ajmal Mian invited my attention to the Petition of Din Muhammad in which he had alleged that the entire property formed part of a Wakf-ul-Aulad. This plea was specifically given up by him in his evidence and instead the plea raised was of inheritance. Notwithstanding this the learned Additional District Judge treated 5 houses situated on Survey No. 154 as Wakf-ul-Aulad. He was clearly not entitled to do so as Din Mohammad himself had given up such a plea before him. More over, the learned Additional District Judge having come to the conclusion that the entire Survey No. 154 was a public wakf it was not open to him to come to the conclusion that any part of it was otherwise.

8. Mr. Syed Dawar Hussain, appearing for the minor respondents contended that the family of Din Muhammad has been residing in these houses since time immemorial but that would not make the property Wakf ul-Aulad. At the most this may reasonably pursuade the Administrator not to dispossess the respondents from the said houses. As regards the privilege attached to the graveyard inside the fort Mr. Ajmal Mian invited my attention to the Supreme Court's decision reported in Haji Ghulam Rasool v. Chief Administrator of Auqaf (P L D 1971 S C 376) in which Chief Justice observed that "in a graveyard which is a public Wakf no such exclusive or preferential right can be claimed and the right must be of necessity by a common right subject to availability of space." In this case too the privilege that was claimed was privilege to be buried in preference to others as in the present case.

9. The result is that this appeal is allowed and the order of the learned Additional District Judge in so far as it purports to hold that the five houses were part of Wakf-ul-Aulad and that Din Mohammed's family had any special privilege in the graveyard is set aside. In the circum stances, however there will be no order as to cost. M. Y. M Appeal allowed.