P L D 1972 Lahore 780 (PLP)

Ch. Muhammad Ashraf, Manager Auqaf, Gujrat. Dates of hearing: 4th, 13th and 18th April 1972. Shrine of Hazrat Shah Jahangir Sahib was taken over by the Chief Administrator of Auqaf under the West Pakistan Waqf Properties Ordinance in the year 1961. There is agricultural as well as urban land attached to the shrine measuring 297 kanals, 14 marlas and 6 kanals, 17 marlas respectively. On the urban land there exists a cluster of shops and a few houses on an area of 1 kanal, 13 marlas. The remaining land is lying vacant. The petitioners are paying root of Rs. 1,724 to the Auqaf Department. They claim to have come in possession of the property before it was acquired, and when it was managed by the Mutwallis. This fact is disputed by the Department. The entire piece of land including the area under the shops and the houses was allotted to Ch. Sardar Khan Trust respondent No. 2 for the construction of hospital in August 1969, by Mr. M. Masood, the then Chief Administrator of Auqaf, West Pakistan, notices were issued to the petitioners for their ejectment under rule 7 (2) of the West Pakistan Waqf Properties (Administration) Rules 1960, cancelling their lease, and giving them a period of one month to vacate the premises. This action was challenged by a petition under Article 98 of the Constitution of 1962.

2. The Chief Administrator of Auqaf has to administer the property under the Ordinance and the Rules framed under section 21 of the said Ordinance. He has to frame a Scheme under rule 4 and in designing it he has to give effect to such wishes of the person dedicating as can be ascertained and to which effect can reasonably be given. He cannot disregard the wishes of the dedicator. Chief Administrator of Auqaf, West Pakistan v. Mohammad Saeed Khan (P L D 1965 Kar. 490) refers. In the absence of evidence of express wishes of the dedicator, the Waqf property can be used for the purpose for which it has been used or for any purposes recognised by Islam as religious, pious or charitable. In case of mosque, the scheme shall ensure that the religious services and other functions performed therein are continued. Where the Waqf property is shrine, the scheme shall make provision for the conduct and regulation of the established rites and ceremonies in accordance with the tenets of the saint or sect concerned; and the proper custody of cash box placed at the shrine or other religious institutions and the income there from. The relevant rules for lease of the property is rule 7 which provides that where the lease relates to land it shall be in writing for a period not exceeding three years unless in the opinion of the Chief Administrator of Auqaf longer period is necessary in the best interests of the Waqf property. As far as possible the lease shall be made through auction in favour of the highest bidder. The auction is usually to be held at the spot or at other place close to it as may be easily accessible to the intending bidders.

3. Where the lease relates to a house or shop it shall be in writing for a period of two years. The rent reserved shall be at the best available market rate. Other things being equal preference shall be given to the old lessee whose lease is due to expire and who agrees to the renewal thereof. Where in the opinion of the Chief Administrator of Auqaf any lease of Waqf property made after 4th November 1961, is not in the interest of the Waqf property, he may cancel the lease by giving one month's notice to the lessee and the lease shall stand terminated on the expiry of the said period; or by tendering one month's rent to the lessee and on so doing the lease shall stand terminated forthwith.

4. The action purported to have been taken in the instant case without going into the disputed question of fact as to whether the petitioners were in possession of the property long before its take over by the Auqaf Chief relates to the fact whether it is in the interest of the Waqf property to cancel the lease of the petitioners and grant a fresh lease at rent of Re. 1 in favour of Ch. Sardar Khan Trust for a period of one year. The obvious inference is that such an action cannot be claimed to be in the Interest of the Waqf property or the shrine. The dedicator ha dedicated the property in the name of God for the benefit of the shrine and the income has been so used ever since then. Even otherwise there is violation of the rule, for, the lease cannot be granted for a period of more than two years without permission of the Court. Rent of Re. 1 cannot be said to be the best market rate. Even an opportunity has not been provided to the old lessees to pay the higher rate. The Auqaf Chief cannot be permitted to dilly‑dally with the property dedicated to God according to his own sweet will. According to Muslim Jurists the Waqf property is like the property of an orphan and its mismanagement cannot be allowed. The lease is given for a year for the construction of the hospital. No one person will construct the building on a piece of land which is on lease for one year because construction itself will take more than a year. Any lease which is beyond the period mentioned in the rules above is an alienation of the property which is prohibited by all the Muslim Jurists.

5. In Hedaya by Charles Hamilton at page 335 it is mentioned:‑ "Under an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, according to all lawyers; the transfer it, unlawful, because of a saying of the Prophet, 'Bestow the Actual Land Itself in charity, in such a manner that it shall no longer be saleable nor inheritable.' An appropriation, therefore, is incapable of sale or transfer, upon becoming valid and absolute." Paragraph 441 of Majelle, 1967 Edition mentions:‑ "After a contract has been completed which is a lawful letting, if another person offers additional rent, however much it may be, the lessor cannot for this alone annul the letting. But if the guardian of an infant, or the Muteveli of a Waqf, let their immovable property for a rent less than the equivalent rent, the letting is bad. The complete payment of the equiva lent rent is necessary." Paragraph 208 of the Principles of Mohammmadan Law, Sixteenth Edition by Mulla clearly lays down restrictions on the power of a Mutwalli to grant a lease of non‑agricultural property for a term exceeding one year, unless he has been expressly authorised by the deed of Waqf to do so; or where he has no such authority, unless he has obtained the leave of the Court to do so; such leave may be granted even If the founder has expressly prohibited a lease for a longer term. It, therefore, follows that a permanent lease cannot be granted by Mutwalli without leave of the Court. This view has been adopted by various Courts. Reference is made to Alimunnisa Bibi v. Mohammad Abdul Rahman (177 I C 205), Sheikh Zafarbhai Guljarbhai v. Chhaganlal Aditram Gandhi and another (A I R 1942 Bom. 21), Sundaramurthi Nainar v. Chooti Bibi alias Bacha Bibi and others (A I R 1972 Mad. 641) and Shailendranath Palit v. Hade Kaza Mane (I L R 59 Cal. 586). Para. 559 of Muslim Law by Tyabji, Fourth Edition restricts the power of sale, mortgage or perpetual lease without permission of the Court. In outlines of Muhammadan Law by Asaf A. A. Fyzee at page 309 it is mentioned:‑ "A Mutawalli has no power to grant a lease of Waqf pro perty, if it be agricultural, for a term exceeding three years, and, if non‑agricultural, for a term exceeding one year; provided that he may be expressly authorized to do so by the Waqfnama, or that where he has no such authority, he may obtain the permission of the Court." At page 607 of Digest of Mohammadan Law by Neil B. E. Baillie, 1957 Edition, question of grant of lease of Waqf property is discussed in the following words:‑ "It is not lawful to let a Waqf except for the rent of similar property. But when a Waqf has been let for three years at a known rent, equal to that of similar property, so that the lease is lawful, it is not to be cancelled, though rents should fall or rise during the period. When the appropriator himself has granted a long lease, and there is ground to apprehend that the substance of the Waqf may be injured, the Judge may cancel the lease. Though the Superintendent of Waqf should allow a person to occupy it without paying rent, he is never theless liable for the rent of similar property, according to the generality of 'our' modern Sheikhs; and the Futwa is to the same effect. And when the Superintendent has let the property to a Waqf at an inadequate rent, so that the lease is unlawful, and the tenant has occupied it, he is liable for the rent of similar property, whatever it may amount to, according to what is approved by the moderns." Kashi Prasad Saksena in his Commentary on Muslim Law, 1963 Edition at page 489 has compared the Waqf and the trust and pointed out that "a trust is always for .the benefit of its author and it does not exhaust the trust property, while in a Waqf, a charitable purpose is always presumed and the cypres doctrine is applied The Waqf property does not vest in the trustee Allah Rakhi v. Mohammad Abdur Rahim (61 I A 50). The distinction, therefore, makes It Perfectly clear that a Waqf property cannot be given over to a trust. It is dedicated to God and its handing over to trust cannot be permitted because the trust is always for the benefit of particular beneficiaries. The above discussion by eminent Muslim Jurists, of the Ordinance and the Rules makes it abundantly clear that whatsoever good intention the Chief Administrator of Auqaf had in passing over this property to Ch. Khan Trust, it is not a valid order.

7. It was vehemently argued on the other side that opening of the hospital is a charitable purpose which is envisaged by the Ordinance. It may be so, but then the hospital run by the Waqf must be in the Lame of the Waqf and not in the name of the trust. The contract of lease entered into between the parties is not en forceable at law. It is true that rule 4 empowers the Chief Adminis trator of Auqaf to use the property for any purpose recognized by Islam as religious, pious or charitable. Since there is no restriction on the appointment of a Muslim as Chief Administrator of Auqaf he cannot be left to exercise the jurisdiction freely according to his own sweet will. If a non‑Muslim sometimes is appointed as Chief Administrator of Auqaf he can certainly not be permitted to interpret the recognised principles of Islam both as Mutwalli and as Sajjadanashin in the performance of his duties, rites, ceremonies in the shrine and the management of the mosque. Actions of the Chief Administrator of Auqaf are certainly subject to the powers of judicial review by superior Courts. Sh. Inayat Ullah and others v. M. A. Khan and others (P L D 1964 S C 126) and Pir Rashid‑ud‑Daula and others v. The Chief Administrator of Auqaf (P L D 1971 S C 401) are referred. The Auqaf Chief is at best a Mutwalli interested in the income of the property and its good management which instinct is obviously lacking in the instant case. Perhaps he cannot escape proceedings in civil Court, for mismanagement, by any interested person after complying with the formalities laid down in section 92 of the C. P. C.

8. The upshot of the discussion is that the notices issued to the petitioners are without lawful authority. They cannot be ejected for the benefit of the trust property. I must, however, make it clear that there will be no bar for running the hospital in the name of Hazrat Shah Jahangir Sahib, for the property dedicated in the name of God attached to the shrine can certainly be used for that purpose. Allegation was also made in the petition that the Trust has acquired so many properties in Gujrat which are being used for commercial purposes. I need not go into this controversy because I have already held that Waqf cannot be transferred to another trust.

9. For the foregoing reasons this petition succeeds with costs. I am grateful to Mr. Dilawar Mahmood, Additional Advocate‑General, who gave valuable assistance to the Court in this case, appearing as amicus curiae. S. A. H. Petition accepted.