1995 PLP 1640 (CLC)

Date of hearing: 15th March, 1995. The petitioner through this Constitutional petition has prayed that the action of the respondents Nos.1 to 3 in handing and taking over possession of the Darbar Shola Sharif be kindly declared as having been done without lawful authority and the action is against law, illegal, offends against the religious rights of the devotees and un‑Constitutional and the shrine be ordered to be handed over to the petitioner.

2. The relevant facts are that there is a shrine known as Weer Shola Shaheed situated within the Cantonment limits of SialKot. The same' was taken over by the Auqaf Department in the year 1971 under the provisions of Auqaf Ordinance 1961 and thereafter it started managing its affairs. The grievance of the petitioner is that in March 1993 the Auqaf invited tenders for auction of the income of the Shrine and thereafter proceeded to hand over its management and control to respondent No.1. It is added that the petitioner and other devotees were sent for by respondent No.1 in April 1993 and they were stopped from making arrangements for Annual Urs.

3. The petition came up for limine hearing on 25‑10‑1993. when the respondents were directed to submit report and parawrise comments.. The order was complied with. The respondent No.1 admitted having taken over the control and management of the shrine from Auqaf. In this view of the matter, this petition was admitted to hearing. The respondent No.1 has5 appeared through Rana Nasrullah Khan, Advocate while the respondents NVos.2 and 3 are represented by Mr. Riaz Kiani, Advocate, who submitted that there is nothing legally or morally for him to support the action of the respondent No.1 and prayed that the same be declared void, unlawful and without jurisdiction.

4. The learned counsel for the petitioner argued that according to the provisions of Auqaf Ordinance, 1961 the Auqaf Department assumed the control and management of the Shrine. It is added that the respondent No.1 has no jurisdiction to assume possession and management under the law of the land or even to interfere in the management of the shrine.

5. The learned counsel for the respondents Nos.2 and 3 submits that legally the control and management of the shrine vests in the Auqaf Department since 1971 and respondent No.1 has no jurisdiction or authority to interfere in the possession and management of the property by the respondents Nos.2 and 3.

6. On the other hand, the learned counsel for the respondent No.1 argued that the land belonged to Government of Pakistan. In thins behalf, he has referred to extract from General Land Register, Sialkot Cantt. It is added that even after control was assumed by the Auqaf Department the administration remained with the Station Headquarter. In this behalf, the learned counsel has referred to memo dated 14‑6‑1971 from Station Commander to respondent No.2. It is added that when respondent No.2 in 1993 invited tenders to auction the income of the shrine it was considered as a step which was likely to endanger the security of Pakistan, therefore, the respondent No.1 was constrained to take over the shrine. It is submitted that as result of auction anyone including enemy agent could have been installed in a very sensitive area. The arguments are summed up with the submission that the petitioner has no locus standi to file this writ petition as he is not an aggrieved person and his prayer that shrine should be handed over to him cannot be legally granted. . The arguments are concluded with the submission that suo motu relief cannot be allowed to the Auqaf Department by this Court in Constitutional jurisdiction. The learned counsel in this behalf has referred to Akhtar Abbas and others v. Nayyar Hussain (1982 SCMR 549), Islamic Republic of Pakistan v. Muhammad Saeed (PLD 1961 SC 192), The Tariq Transport Company, Lahore v. The Sargodha Bhera Bus Service, Sargodha etc. (PLD 1958 SC 437) and Akhtar Abbas v. Nayyar Hussain (1982 SCMR 549).

7. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedent cases. The admitted position is that the shrine is in existence and the same was taken over by the Auqaf Department in 1971 under the provisions of Auqaf Ordinance 1961. Even according to the General Land Register there is a shrine in the land and in the possession column Mohammadon community is mentioned as holder of occupancy rights. Therefore, the main question for determination is whether the respondent No.1 could assume the possession and management of the shrine from Auqaf Department and if so under what law? The respondent No.1 could not refer to any law under which the management and possession can be assumed by it. The ownership of land does A not entitle the respondent No.1 to take over possession from the Auqaf Department. Moreso when it was handed over by itself and the notification of taken over by the Auqaf was not challenged by anyone in any forum. The Government functionaries, departments and officers are supposed to strictly operate within the sphere allocated to them under the law of the land and any attempt to frustrate the law could lead to startling results. In such situation the matter should have been taken up with the officials of Auqaf Department, who are expected to be equally concerned with the security of Pakistan. Conversely speaking laws are basically meant to catre for the rights and liabilities of the State and subjects and the violation cannot be countenanced particularly in an Islamic Democratic State like Pakistan. The strict observance of laws, rules, regulations etc. is condition precedent for harmony and peace in the society, which in its turn are essential for the security of the country. The functionaries of the State cannot be allowed to grapple with each other and proceed according to their own notions and jeopardise the security of Pakistan. Therefore, the action of the respondent No.1 in taking over possession and management resulting in interference in the lawful duties of Auqaf Department is declared illegal and without jurisdiction.

8. Now coming to whether the petitioner is an aggrieved person or not? claims to be devotee, who is interested in the affairs of the shrine, therefore, he is an aggrieved person. This brings us to the relief brought by the petitioner that the shrine should be restored to him. The learned I counsel for the respondents Nos.2 and 3 rightly pointed out that no law under which management can be handed over to the petitioner. The property was taken over by the Auqaf Department in accordance with the provisions of Ordinance 1961 in the year 1971. The petitioner did not raise a little finger to this take over and the petition shows that he had no objection to the same, therefore, this relief cannot be allowed. Moreover, the jurisdiction of the Courts is barred under section 17 read with section 10 of the Auqaf Ordinance, 1961. In fact there is nothing on record to warrant grant of this relief, so much so, that even the notification of take over has neither been challenged nor placed on record.

9. Let a copy of this judgment be sent to Secretary Defence, Government of Pakistan, for adopting remedial measures so such situation does not recur in future, anywhere else in the Country.

10. The upshot of the above discussion is that the petition is partially allowed. The result is that the assumption of control and management by respondent No.1 from the respondents Nos.2 and 3 is declared illegal, ultra: vires and without jurisdiction and the respondent No.1 is directed to restore the control, management and possession of the shrine to the Auqaf Department forthwith. There is no order as to costs. AA./T‑105/L Order accordingly.