P L D 1964 Supreme Court 126 (PLP)

S. A. RAHMAN, J.‑A mosque known as the Masjid Patolian in Lahore, together with its appurtenant properties was taken over by the Administrator of Auqaf, by a notification dated the 19th of July 1960, in exercise of powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1959. The 1st respondent, Mr. M. A. Khan, was appointed Manager of the mosque by the Administrator. He issued a notice on the 10th of October 1960, which was affixed on the notice‑board attached to the mosque, to the effect that without his written permission, no one could hold Khatam Sharif or make a speech or hold a meeting in the mosque in question. The appellants who described themselves as members of an Anjuman called Anjuman‑i -Ghausia Alia, Masjid Patolian, interpreted this as an order depriving them of the right of holding Khatam Sharif Ghausia Alia in the mosque, which they claimed to have held therein, for the last fifty years or so. The order of the Manager in this respect was challenged by a petition for a writ preferred in the High Court of West Pakistan, Lahore. It was asserted that the ban on the holding of the Khatam Sharif Ghausla Alia in the mosque was beyond the Manager's powers under the Ordinance. The petition was dismissed by the High Court. The appellants obtained special leave to appeal from this Court for considera tion of the question whether the impugned order infringed the provisions of section 13 of the Ordinance read with rules 4 (1), 4 (2) and 6 of the West Pakistan Waqf Administration Rules, 1960. The impugned notice, in terms, does not contain any absolute prohibition against holding Khatam Sharif Ghausia Alia, in the mosque. The appellants, however, as observed above, interpreted it as importing an absolute prohibition on the holding of this function, in the premises of the mosque and this interpretation receives support from the written state ment which was filed in the High Court on behalf of the Chief Administrator, Auqaf, the Manager of this mosque and the West Pakistan Province, through the Secretary, Auqaf, who were the only parties initially impleaded in the High Court. It was pleaded on their behalf that the petition merited dismissal as it raised controversial questions of fact and as it did not disclose a legal or statutory right in the petitioners for the infringement of which, they could approach the High Court. The written statement also recited that no previous records relating to the mosque were available and it was not known whether the practice of holding Khatam Sharif Ghausia Alia, was in accordance with the conditions of the waqf, if any. It was suggested that the practice of holding the alleged Khatam "seems to have started some time in 1958", when permission to use a loudspeaker for such a function was obtained from the District Magistrate, Lahore. The impugned order was said to have been passed in the best interest of the administration of the waqf property and for maintaining law and order in the area, as the practice in question was objected to by a certain section of the Muslims and was likely to lead to a breach of the peace. It was specifically asserted that the use of the mosque for holding Khatam Ghausia, could not be described as its authorized use, the mosque being primarily meant for prayers and worship of God. It was asserted that the use of the mosque for holding Khatam Sharif Ghausia Alia would amount to a conversion of the very object of its creation. It was thus clear that these three respondents were taking up the position that the Khatam Sharif Ghausia Alia could not be permitted in the mosque. The 4th respondent, Haji Muhammad Din, describing himself as Chairman of the Namaz Committee of the mosque, applied to be impleaded as a party in the High Court. This respondent too was allowed by the High Court to take part in the proceed ings and a written statement was filed on behalf of the Namaz Committee, challenging the bona fide and the right of the appel lants to ask for the relief of a writ and contesting their claim practically on the same lines as were adopted by the Auqaf authorities. It appears that the question of vires of the Ordinance itself vis‑a‑vis the Governor who had promulgated it, was also raised in the High Court, but the plea was abandoned when the Martial Law Administrator, Zone `B', promulgated Martial Law Order No. 82, which appeared in an extraordinary issue of the West Pakistan Gazette on the 16th of February 1961. This Martial Law Order prevented anybody from challenging the validity of the West Pakistan Waqf Properties Ordinance, 1959, in any Court, including the High Court and the Supreme Court. In paragraph 3 of the judgment of the High Court, it is observed as follows : (Apparently, the High Court along with the Writ Petition No. 838 of 1960, were dealing with a First Appeal from Order No. 13 of 1961, on the same point). "It is not necessary for the purposes of disposal of these two cases or either of them to determine whether or not the recitation in a mosque, of gawwalis in praise of saints, is allowed by Islam because that question does not really arise In the present case . . . . ." But somewhat inconsistently with this position the learned Judges went on to hold that though the mosque could be put to uses which may not be connected with the worship of God in the usual manner, if the occasion so demanded, and such as would work to the benefit of Muslims, but that the conclusion would not be justified there from that a mosque was intended to be put to uses other than the worship of God. The learned Judges recognized that a mosque being primarily meant for the worship of God, no order of any authority which prohibited the worship of God therein, would be binding, unless the order be temporary in character and passed either to avoid a breach of the peace or some disaster which is likely to ensue if the mosque were used even for the worship of God. The position of practices other than prayers and recitation of Quran in the mosque, according to the learned Judges, stood on a different footing, however laudable those other practices may be. They held that such practices could not constitute worship of God in the sense approved by all sects and therefore the order of the Manager prohibiting the holding of Khatam Sharif Ghausia Alia in the mosque Patolian, was not invalid in law. With respect to the contention that as the Khatam Sharif Ghausia Alia had been held in the mosque for at least two years earlier, section 13 of the Ordinance prevented the banning of such a function, it was ruled that this section could not be pressed into service where the purpose of dedication was obvious as in the case of a mosque. This section in the opinion of the learned Judges only applied to those cases in which the terms of the dedication were not clear or the waqf was established not by dedication but by user. Ordinance XXI of 1959 was amended in certain respects by Ordinance X of 1960 and eventually replaced by the West Pakistan Waqf Properties Ordinance XXVIII of 1961. This new Ordinance repealed several enactments bearing on waqfs, including the 1959 Ordinance, being a consolidating measure, but despite the repeal, saved the effect of anything done, action taken or liability or penalty incurred or proceeding commenced under the previous law. The question raised in this appeal has therefore to be decided in the light of the provisions of the 1961 Ordinance (referred to hereafter as "the Ordinance)." Something may at the outset be said about the facts of the case involved in the appeal. Ample material was placed on the file In the High Court to show that at least from 24‑9‑58, up to the 13th January 1960, documentary proof existed that the Khatam Sharif Ghausia Alia was being held in this mosque, by the Anjuman‑i‑Ghausia Alia, in the course of which naats were also being recited and there was also wa'as besides the ceremony of Khatam. There are several orders passed by the District Magistrate, Lahore, permitting the use of loudspeaker in the mosque for the function in question, during this period. The ban on the use of loudspeakers, without permission of the District Magistrate, seems to have started only in 1958 and there is some force in the contention raised on behalf of the appellants that the practice in question had been followed in this mosque even earlier than 1958. Even if, however, that contention is rejected as being in the realm of controversy, the position has not been controverted on behalf of the Auqaf Department or even on behalf of the Namaz Committee, that from 1958, onwards, Khatam Sharif Ghausia Alia had been held from time to time in the mosque. There was a suggestion made on behalf of the Namaz Committee that there was a dispute, at some unspecified time, in respect of the holding of this function in the mosque and the matter was referred to the arbitration of a Police‑Inspector. It was alleged on behalf of the Namaz Committee that a com promise was effected through the good offices of the Inspector Police, between the contesting parties and that the appellants, on that occasion, agreed that they would only hold Khatam‑i- Quran‑Sharif in the mosque and have no other ceremonies con ducted therein. No documentary evidence apart from the allega tions made, has been placed on the file to support the terms of the alleged compromise. The plea raised by the Namaz Committee is belied by the various orders passed by the District Magistrate from time to time permitting the holding of the Khatam‑i‑Ghausia and the reciting of naats therein, in connection with that ceremony, with the help of a loudspeaker. The per mission in this context must have been accorded after calling for reports from the police as is usually the case in such matters. We are unable therefore to uphold the contention raised on behalf of the Namaz Committee that any undertaking was given by the appellants such as is alleged by that Committee, in respect of the ceremonies to be conducted in the mosque. The factual position being therefore that at least for two years preceding the taking over of the mosque property by the Auqaf Department, the Khatam Sharif Ghausia Alia had been held in the mosque, the question arises whether the Manager appointed by the Auqaf Department, could place a ban on this function, by virtue of powers derived from the Ordinance. The relevant provisions of Ordinance (XXVIII of 1961) are reproduced below :‑ "6. Chief Administrator may take over waqf property by notification.‑ Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, Management and maintenance of a waqf property. Explanation.‑For the purposes of this section, "control" and "Management" include control over the performance and Management of religious, spiritual, cultural and other services and ceremonies at or in a waqf property." 11. Chief Administrator to prepare scheme for the adminis tration of waqf property.‑ (1) The Chief Administrator shall as respects the waqf property in respect of which a notification under section 6 has been issued and the gross annual income from which exceeds rupees five thousand, and in other cases may, settle a scheme for the administration of such waqf property. (2) 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. 12. Sale of waqf property by Chief Administrator and the application of proceeds:‑ Government may permit the Chief Administrator to sell or otherwise dispose of any waqf property and invest the proceeds in accordance with its directions. 13. Use of waqr property and application of income there from 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 recognized by Islam as religious, pious or charitable, as the Chief Administrator may deem fit. 17. Bar of jurisdiction.‑ Save as expressly provided in this Ordinance, no civil or revenue Court or any other authority, shall shave jurisdic tion‑ (a) to question the legality of anything done under this Ordinance by or at the instance of the Chief Administra tor ; 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 Ordin ance or anything done or intended to be done by or at the instance of the Chief Administrator under this Ordinance. 18. Effect of orders, etc., inconsistent with this Ordin ance.‑ Every order made and every action taken under this Ordin ance shall have effect notwithstanding anything inconsistent there with 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." 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. The learned Advocate‑General on behalf of the Auqaf Department and the Province of West Pakistan and Mr. Mahmud Ali, on behalf of the Namaz Committee, have tried to maintain the position that the power vested in the Chief Administrator, Auqaf, under the Ordinance, to "control" ceremonies to be held in waqf properties like a mosque, includes a power to completely ban any such ceremony or function. It is further argued that he can stop any practices whether of long‑standing or not, previously held in a mosque and has plenary powers in this respect. It is suggested that the Chief Administrator would be entitled to give directions to settle a question pertaining to sectarian differences regarding use of waqf properties. In particular, in respect of a mosque, it is urged, that no user in conflict with the primary purpose of worship of God attaching to a mosque, could be permitted and the orders passed by the Auqaf Department functionaries, could not be challenged before any judicial Tribunal. On the contrary, Mr. Shamim Hussain Qadri on behalf of the appellants, asserted that though the Chief Administrator or his delegate might have the power to regulate the holding of functions or ceremonies in a ivaqf property, he could not be assigned the. role of a dictator or an arbiter of sectarian controversies and a final Judge in such causes. The question whether the performance of Khatam Shari Ghausia Alia is consistent with the strict injunctions of Islam or not, or whether such a function could be held within the precincts of a mosque in consonance with such injunctions, is a larger question which does not arise for adjudication in the present case We shall confine ourselves to the limited question raised on the writ petition in the High Court, with regard to the powers of the Manager under the Ordinance, to pass the impugned order. The word "control", occurring in section 6 of the Ordinance, was stressed on behalf of the respondents, as conferring power on the Chief Administrator even to check or restrict a ceremony, regarded as religious or otherwise, by virtue of the explanation to that section. It is true that dictionaries assign to the word "control" the meaning of "checking" or "restricting", among other meanings. The question however is whether that meaning would be in consonance with the purpose and objects of the Ordinance itself. Another meaning given by the dictionaries of the word "control" is "to regulate". Considering that the main object of the consolidating Ordinance is the Management of the waqf properties, the latter meaning is more likely to be in accord with the intention of the Legislature. If undisputed powers, of prohibiting for all time, ceremonies that may have been held in a Waqf property and claimed to be religious in character by one or the other sect of Muslims, had been vested in the Chief Administrator by this Ordinance, surely it might have been expected that the Legislature might have made clear and unequivocal provision to that effect and further provided some machinery for appeal from his orders. No such remedy can be spelt out of the provisions of the Ordinance. No qualifications of a Chief Administrator are laid down in the Ordinance. He may be a person not well‑versed in Islamic law. In the circumstances, it is extremely unlikely that the Legislature could have contem plated the arming of such an officer with plenary powers not only to control, in the sense of regulating the various ceremonies to be held in a mosque or other waqf property, but also to enable him to set himself up as the final Judge of all controversial questions relating to sectarian religious differences. Our attention was also invited to subsection (2) of section 11 of the Ordinance and it was sought to be inferred therefrom that the Chief Administrator had power to disregard wishes of the dedicator of a waqf property, if he so thought fit. This subsection, however, seems designed to ensure that the wishes of the dedicator of a waqf, may be honoured as far as they can be reasonably given effect to. Some dedicators may have laid down conditions for the user of a waqf property, which may become impossible of implemenation, due to change of circumstances or otherwise and this subsection is apparently inserted in the Ordinance, to meet such a situation. It cannot be pressed into service to support the contention that the Chief Administrator has plenary powers in the matter and can assume a dictatorial role. Similar observations would be apt while interpreting section 12 of the Ordinance which authorizes Government to permit the Chief Administrator to sell or otherwise dispose of any waqf property and to invest the proceeds thereof, in accordance with its directions. This section too is evidently intended to meet extraordinary situations in which it may be necessary to sell a particular waqf property and to invest the proceeds in some other way. In any event, this section does not have much bearing on the powers enjoyed by the Chief Administrator himself under the Ordinance. The main controversy in the case centres round the true import of section 13 of the Ordinance. It was contended on behalf of the respondents that in cases of waqf properties in respect of which the purpose of dedication was known, no question of user inconsistent with such purpose could arise. With respect to a mosque, it was asserted that it was to be used strictly for the worship of the Almighty and any user thereof which might partake of something other than the worship of God could be banned. The question however is whether the Chief Administra tor or his nominee can impose such a ban on a user which had existed before the waqf property was taken over under the Ordinance. The question whether such a user was under the law of Islam, a legitimate user of the property in question or not, might be capable of decision in the proper forum, namely, the Courts of general civil jurisdiction. It would, however, be too much to say that a similar power existed in the case of the Chief Administrator under the Ordinance, to decide such religious issues. On the contrary, the language employed in section 13 itself, suggests that it is the duty of the Chief Administrator to carry on the user of waqf property for the purpose for which it was dedicated or for which it had been used. In certain respects under the last clause of this section, he might even be competent to permit the user of the waqf property for any other purpose "recognized by Islam as religious, pious or charitable", but that does not imply a power to upset practices claimed to be of a religious character established in the past. Of course, if the user amounts to a misuse of the property in question, according to all sects of Islam, such a misuse could be prevented by an order of the Administrator. For instance, if a waqf property had been used as a gambling den or as a centre of dissemination of narcotics, such practices could be rooted out as universally acknowledged evils, according to all sects of Islam. Similarly in the interest of law and order and good Management, a temporary ban on the holding of specific functions in the property may be imposed by the Administrator or his delegate, in so far as it amounts to regulation of such activities. The difficulty however would arise in cases where a practice is objected to by one sect and sponsored by another as a religious ceremony, as in the present case. It appears to us that the Ordinance vests no power in the Chief Administrator to resolve such a conflict of opinion by his own order and that he must respect such past‑established practice in the interest of smooth Management. The rules framed under the Ordinance of 1959 also appear to bear out the interpretation of the provisions of the Ordinance which we are inclined to adopt. Rule 4 of the West Pakistan Waqf Properties (Administration) Rules, 1960, lays down that the Manager shall prepare, for settlement by the Chief Adminis trator, a scheme for the administration of the waqf property in his charge. The scheme shall be designed to give effect to such wishes of the persons dedicating, as can be ascertained, and to which effect can reasonably be given. In the absence of evidence of express dedication, the waqf property shall be required to be used for the purpose for which it has been used or for any purpose recognized by Islam as religious, pious or charitable. In parti cular, in respect of waqf property constituted by a mosque, it is directed in this rule that the scheme shall ensure that the religious services and other functions performed therein are continued. The argument raised on behalf of the respondents that this rule was framed under the 1959 Ordinance, where as the 1961 Ordinance has conferred greater powers on the Chief Administrator and therefore this rule cannot be pressed in aid for discovering the intention behind the Ordinance, does not appear to us to be sound. If that had been the position, it was open to the legislating authority to amend the rule in the sense indicated on behalf of the respondents. That this has not been done, is a pointer to the fact that the purpose and intention behind the Ordinance has not been changed, namely, that of better Management of the property, without the Manager or the Chief Administrator entering into religious controversies that would certainly crop up if they set themselves up as arbiters of religious disputes. Under rule 6, the appointment of a religious purposes committee is contemplated where the waqf property is a shrine or a mosque. This also, the rule declares, would be for the purpose of ensuring tile performance of the religious services and other service and rites and ceremonies at the mosque or shrine as the case may be. In the instant case, so far as the material on record goes, there is no evidence that by the original deed of dedication of the mosque, if any such existed, functions like the Khatam‑i‑Ghausia would not be countenanced. Reading the above rules with the provisions of the Ordinance, it seems fairly clear that the object of the legislation was to preserve and maintain the waqf properties and to continue the ceremonies or other functions that might have been held therein, provided of course that such functions did not amount to misuse of the property, as observed above. At the fag end of the argument in this case, the learned Advocate‑General, after consulting the Chief Administrator, Auqaf, made a statement before us that the Auqaf Department would be prepared to reconsider this matter, if the congregation of the mosque, from the locality itself, wanted this ceremony to be "introduced." This, however, does not appear to us to meet the situation completely. The question is one of right of the appellants who have been holding this function of the Khatam Sharif Ghausia Alia in the mosque, to continue it and that is apparently not being conceded. The Chief Administrator or his Manager may be able to regulate the time of this function, having regard to the convenience of the congregation attending the mosque for prayers and otherwise also to take steps in respect of such regulation, but it does not seem open to the Chief Administrator or his Manager of the Waqf Property in question, to ban such a ceremony which had the sanction of past practice. 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. A fortiori, the High Court could interfere in such a contingency under Article 981 of the present Constitution. We, therefore, allow this appeal and issue a direction to the first three respondents that they should permit the holding of the Khatam Sharif Ghausia Alia in the mosque, in accordance with the past practice, subject of course to its regulation as to time etc., in the general interest of the smooth running of the institu tion. We would leave the parties to bear their own costs in this Court. K. B. A. Appeal accepted.