P L D 1952 Peshawar 9 (PLP)

MUHAMMAD SHAFI, J.‑The brief facts of the case are that a house situated in Muhallah Yakatoot, Peshawar City, originally belonged to one Mst. Ghulam Fatima, who by a registered gift deed, dated 11th April 1946, gave it away to Ghulam Rasool. The possession of the house was also deli vered to him on the same day. ‑After the death of Mst. Ghulam Fatima two persons by the names of Masiti and Kala instituted a suit against Ghulam Rasool, challenging the vali dity of the above gift. During the course of those proceedings the plaintiffs made an application that if Faqir Hussain took oath that the house belonged to Ghulam Rasool and not to the plaintiffs their suit might be dismissed. Faqir Hussain took the necessary oath, and the plaintiffs' suit was dismissed. Latter on the above Faqir Hussain somehow managed to take possession of the house. Ghulam Rasool has since completely disappeared, and has not been heard of since sometime. On 20th March 1950 the Administrator, Charitable Institutions, North‑West Frontier Province received an application from a so‑called well‑wisher of Pakistan stating that the house in dispute had been mortgaged in favour of Faqir Hussain by Ghulam Rasool for Rs. 500 since about 4.5 years, and that Ghulam Rasool had after that become traceless. It was further stated in the application that Ghulam Rasool had left no heir and the property had, therefore, vested in the Govern ment by the rule of escheat. Acting on this application the Governor, North‑West Frontier Province, in exercise of the powers conferred upon him under section 3 of the North West Frontier Province Charitable Institutions Act 1949, took over and assumed the administration, control, management and maintenance of the above house. The notification by the Government to the above effect was published in the North West Frontier Province Official Gazette, dated 5th January, 1951. Against this order Faqir Hussain put in a petition to the Administrator Charitable Institutions, asking for a declaration that the house in question was not a charitable institution, nor was it a property within the meaning of section (2) (c) and (d) of the above Act. The Administrator recorded the evidence, and finally dis missed the petition with costs on 25th July 1951. Faqir Hussain has come up on appeal against this order. Charitable Institution is defined in the North‑West Frontier Province Charitable Institutions Act of 1949, as under :‑ "Charitable Institution shall mean Muslim institution used for or dedicated or devoted to any charitable purpose, the administration, 'control, management or maintenance of which has been taken over any assumed by the Provincial Government as hereinafter provided." Property has been defined as under :‑ "Property shall mean every description of movable and immovable property of Muslims which is held or is to be applied in trust for a charitable purpose whether belonging to or standing in the name of any charitable institution or not, and the administration, control, management or' main tenance of which has been taken over by the Provincial Government as hereinafter provided, and shall include lands, buildings, shops, bungalows, bonds, debentures, Government and other securities, investments, deposits in Banks, dona tions and shares in Joint Stock Companies registered under the Indian Companies Act, 1913." Charitable purpose is defined as under :‑ "It includes the relief of the poor and orphan, education, worship, medical relief, shrine .or the advancement of any other object of charitable, religious or pious nature or of general public utility but not a private waqf." It will be clear from the above that before an action in l respect of a certain property is taken under the North‑West Frontier Province Charitable Institutions Act 1949, it should be a property which is held or is to be applied in trust for a charitable purpose defined above. If a certain property is not held‑or applied in trust for a charitable purpose, the Provincial Government has no jurisdiction to pass an order with respect to that under section 3 of the Act. Taking the facts of the case as they are, about which there is no dispute between the parties, the house in question belonged to Ghulam Rasool. After his death if he has left no heir, the property might vest in the Government by the rule; of escheat, but then on account of that reason it certainly does not become the property as defined in the North‑West Frontier Province Charitable Institutions Act of 1949. It will be absurd to say that every property which belongs to the Government or which vests in the Government is a Charitable Institutions, or property held or applied in trust for a charit able purpose. Apart from that, in the case before me there is no reliable evidence produced to show that Ghulam Rasool is dead, or, that he has not been heard of for the last seven years, so that he should be presumed to have died. Under the cir cumstances the house in dispute cannot be said to have vested in the Government at all. The action which the Provincial Government has taken with regard to the above house is clearly illegal and constitutes a fraud on the Statute. The learned Government Pleader has conceded and very rightly the above position. I cannot help saying that the Provincial Government has by taking action with respect to the house in dispute under section 3 of the North‑West Frontier Pro vince Charitable Institutions Act 1949 has abused the powers conferred on it by that law. For the reasons given above I must accept this appeal and set aside the order of the Administrator, Charitable In stitutions North‑West Frontier Province in appeal and also the notification published by the Government in North‑West Frontier Province Gazette, dated the 5th of January 1951, and hold that the house in dispute is neither a Charitable institu tion nor is it a property within the meaning of subsection (c) and (d) of section 2 of the N: W.F.P. Charitable Institutions Act of 1949. Orders announced. A. H. Appeal accepted.