2021 PLP 120 (YLRN)

MUHAMMAD SHERAZ KIANI, J.

The captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following prayer is made by petitioner:-- "It is, therefore, humbly prayed that the writ petition may kindly be accepted and an appropriate writ in favour of petitioners against the respondents may kindly be issued whereby order passed by respondent No.1 dated 23.06.2014, along with PRTO and allotment issued in favour of respondents Nos.3 to 32 (wrongly stated as respondents Nos. 3 to 33) may kindly be declared against law, facts record without jurisdiction, based on misrepresentation and forgery and of no legal effect. Any other or further relief which deemed proper may also be granted in the interest of justice."

2. Precise facts of the case are that petitioner is a 1st class State Subject and hails from District Bagh. It is stated that Molana Ameen-ul-Haq, petitioner, herein, filed a review petition for cancellation of Proprietary Rights Transfer Order dated 02.11.2011, before the learned Custodian of Evacuee Property, Azad Jammu and Kashmir, Muzaffarabad under section 18(h) of the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957 in respect of land comprising Survey No. 766/393(old), 1205(new), measuring 04 Kanals 09 marlas, situated at Village Bagh, Tehsil and District Bagh on 13.02.2012. It is further stated that the petitioner is a Muhtamim (Trustee Manager) of Madarsa Taleem-ul-Quran Bagh. It is maintained that the 'Madrasa' came into existence on 04.04.1949. It is alleged that the land measuring 04 Kanals 09 marlas was allotted in favour of founder and Muhtimam Sain Muhammad Akbar on 23.11.1949 and 12 marlas were also allotted from Survey No.766/393 on 14.03.1987. Whereas, the land measuring 05 Kanals 01 marla was also allotted from the said Survey No.766/393, hence, total land measuring 11 Kanals 05 marlas allotted in name of said Madrasa. It is stated that the respondents have no concern with the said trust/waqf land. It is alleged that predecessor-in-Interest of respondents namely Molvi Muhammad Hussain got illegally Proprietary Rights Transfer Order pertaining to land bearing Survey No. 766/393(old), 1205(new), measuring 04 Kanals 09 marlas without hearing the petitioner, herein, on 02.11.2011, which is a double and subsequent allotment and the same is liable to be cancelled, hence, the petitioner was constrained to file the review petition. After filing of the review petition, respondents were summoned by the Tribunal below. The petition was resisted by respondents through written statement/objections, wherein, they refuted the claim of the petitioner, herein. The Court below in light of pleadings of parties, directed the parties to lead their evidence. After recording evidence and hearing, the learned Custodian below dismissed the review petition declaring it as not maintainable and time barred through his order dated 23 06.2014. Being aggrieved from the aforesaid order, petitioner, herein, filed the instant writ petition.

3. The writ petition has been resisted by respondents through written statements, wherein, it is stated that petitioner is not an aggrieved person and he is not entitled to construct a mosque or Madrasa Taleem-ul-Quran on the evacuee land. It is further stated that petitioner has not come in the Court with clean hand. It is alleged that a water well was dig by the Sikh community for the use of Dhram Shala/Mandar in the year, 1944, which was occupied by the local population in 1946-47, the 'Mohallah Bagh' and the ancient mosque, nearby the people residing within the local limits of the vicinity including late Molvi Muhammad Hussain, predecessor of the private non-petitioners who utilized the same along with the passage of way, air and light and other easement rights. It is alleged if the construction be allowed on evacuee land all these rights will be infringed because the petitioner is collecting amount from Saudi Arabia and constructing multistorey building for such gains which was actually allotted to predecessor of the non-petitioner. It is further alleged that land was allotted in favour of late Molvi Muhammad Hussain who surrendered his rights of living for teaching of Islam without any compensation, however, petitioner want to usurp the adjacent land of Madrasa, therefore, his ill-gotten gain cannot be protected through the instant writ petition, hence, submitted for dismissal of the same.

4. Mr. Muhammad Yaqoob Khan Mughal, Advocate for the petitioner has filed written arguments, wherein, it is stated that the land in question was allotted to the Madarsa Dar-ul-Uloom Taleem-ul-Quran, Bagh in different times from 1949 to 2013. It is further stated that the predecessor-in-interest of respondents allotted the disputed land in his name bearing Survey No.766/393 measuring 04 Kanals and 09 marlas and also obtained proprietary rights during the year, 2011, whereas, the said Survey No.766/393(old) is under the possession and use of 'Madrasa' till now. It is further stated that a Jirga was held between the parties upon the dispute of construction of Madrasa during the year, 2010 and it was decided that the land remained and shall remain in the name and possession of Madrasa, whereas, the respondents have obtained Proprietary Rights Transfer Order on 02.11.2011, against the law and facts. It is further stated that the disputed land was allotted to the Madrasa Taleem-ul-Quran on 23.11.1949, later on, the predecessor-in-interest of respondents got allotted the same land in his name in year, 1952, therefore, the subsequent allotment is liable to be cancelled, hence, craved for acceptance of the instant writ petition.

5. Mr. Amjad Hameed Siddiqi, Advocate, the learned counsel for the private respondents has filed written arguments on behalf of respondents, wherein, it is stated that the disputed land which was allotted to the Madrasa Taleem-ul-Quran and Sain Akbar (local resident) was allotted against the law because the evacuee property could not be allotted to the local residents of the area, hence, writ petition is liable to be dismissed. It is further submitted that petitioner has got allotted the land in name of Madrasa as Mohtamim and sold the same to Ameen-ul-Haq including the land which was purchased by Abdul Haq Zia (elder son of Molvi Muhammad Hussain) for the said Madrasa. It is further stated that the respondents mentioned in his revision petition that the 12 marlas land was allotted from Survey No.766/393(old), 1205(new) in name of the Madrasa and the same was admitted by the respondents as correct in their objections. However, it reveals from the record that petitioner has again filed an application for allotment in year, 1986, and it was reported upon the said application, that the disputed land comprising Survey No.766/393min out of which 04 Kanals 09 marlas has already in name of predecessor in interest of respondents (Molvi Muhammad Hussain), due to which the remaining land i.e. 12 marlas was allotted in name of Madrasa instead of 05 Kanals 01 marla during the year, 1987, hence, the instant writ petition is liable to be dismissed. It is further stated that the predecessor in interest of respondents were shifted from a place Polis (Poonch occupied Kashmir) before the war of liberation and he had his property there, hence, the property in question was legally allotted to the predecessor in interest of respondents as per scale. The learned counsel defended the impugned order and submitted that the Court below has rightly dismissed the review petition being time barred, hence, craved for dismissal of the instant writ petition.

6. I have perused the contents of pleadings and examined the appended documents made available with utmost care in light of arguments advanced by the learned counsel for the parties.

7. Prior to attending the other points, I would like to observe that if the learned Custodian had passed the impugned order on the ground of limitation only, then, the case was to be remanded for re-hearing and afresh decision but the learned Custodian has also discussed the merits and decided the review petition in the following words:-

8. It appears from the record that the land in dispute was in possession of the Nazim 'Madarsa Taleem ul Quran' the predecessor of the present petitioner, namely; Sain Akbar, even prior to 1947 and the same was allotted in his favor as 'Nazim' of the institute in 1949. The allotment in favor of respondents, herein, has been made in the year, 1952, when, there was no land available for allotment.

9. The other proposition in the case is that the disputed land was allotted to one Sain Akbar, for construction of 'Madarsa Taleem ul Quran' Bagh, hence, the same stood donated and dedicated for religious and charitable purpose, a land or any other property, which is used for a charitable or religious purpose and remained as such for years without any objection by an owner of the land or property, that shall be considered and deemed as a 'Waqf' property and there is no need for any writing for such purpose in view of Islamic law, which is of course, a supreme law. So, in such circumstances, even the entries in favour of a previous land owner/allottee become immaterial and the land in question, admittedly, in use and possession of 'Madarsa' for many decades which was neither available for allotment nor in possession of the respondents, herein.

10. As is evident from record the allotment of the land in dispute, in favor of the Nazim, Madarsa Taleem ul Quran was made in 1949 and the other allotment in favor of present respondents was made in 1952, which was subsequent one, hence, illegal, invalid under law.

11. So far as the status of the impugned piece of land is concerned. The definition of Evacuee Property has been made in section 2(3) of the Pakistan (Administration of Evacuee Property) Act, 1957, which is reproduced as under:- "(3) "evacuee property" means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes-- (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon partition of the same; or (b) property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian;" When, there was a 'Madarsa', even at the time of partition, so the disputed land in strict sense could not be termed as an evacuee property, rather after construction of Madarsa premises and before the allotment of respondent, it was a Waqf property for all practical purposes, as even, the Custodian, who is considered at the place of migrated owners has never raised any objection on the use and possession of the Madarsa.

12. It is observed that according to the record, when, the land in dispute was entrusted as 'Waqf' to 'Madarsa Taleem Quran' which is a religious and charity based institution and it is settled law that any property, once dedicated as 'Waqf', cannot be returned or used for any other purpose. The definition of Waqf, contains in Section 2(d) of the Azad Jammu and Kashmir Waqf Properties Act, 1960, which is usefully reproduced as under:- "(d)Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is, for the time being, claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants."

13. In the case in hand, the trust/ Madarsa, as per record was established and functional prior to Freedom War, which during Freedom War of 1947 stood destroyed and thereafter, for its repair and reconstruction the land in dispute was allotted. The respondents, did not object and create any hurdle in the way of construction or extension of the 'Madarsa and hence, they have rendered their consent in favor of establishment/ construction and extension of the Islamic institute and they were not entitled to get allotted the land, which, they had already, by their conduct dedicated to a charitable purpose through their consent.

14. The file of the case also contains an agreement, executed between the parties, in presence of the respectables of the City and it was agreed that the land in dispute shall remain in possession and administration of Madarsa. The relevant para No.4 of the agreement is reproduced hereunder:-

15. According to the above agreement, the present respondents were not competent to claim the disputed land and they were estopped from claiming any right in respect of the disputed land.

16. There is also another aspect of the case that as the land in dispute was in possession of the present petitioner, therefore, he was necessary party and he was entitled to be granted an opportunity of hearing, prior to issuance of the subsequent allotment chit and also at the time of issuance of PRTO, whereas, the record shows that the allotment chit and the PRTO were issued without hearing the necessary party, i.e. petitioner herein, and thus, the principle of audi alteram partem has not been adhered by the learned Custodian and the law is well settled on the point that nobody can be condemned unheard. There is plethora of judgments on the point. In case titled Chairman Pearl Development Authority v. Tariq Inqalabi and 7 others (2) reported as 2005 PLC (C.S.) 1074 the Hon'ble apex Court of the Azad Jammu and Kashmir, has pleased to observe as under:- "

9. There is another important aspect of the case which was attended to by the High Court that the respondents were removed from their services without providing any opportunity of hearing to them. By now, it is a settled proposition of law that before passing an adverse order against a person or imposing a penalty, it is essential to give a notice for personal hearing and the same cannot be dispensed with unless, there is a specific provision in the relevant law that services of a civil servant could be terminated without serving any notice upon him." In another case, titled Taskeen Naz v. Fehmida Begum and (11) others, (4) appeals, reported as 2016 PLC (C.S.) 1151 the like controversy has been resolved by the Hon'ble apex Court, in the following manner:-

8. So far as the most heated argument regarding non-providing the opportunity of hearing is concerned, no doubt under the provisions of section 12 of Act, 1976, for retiring a civil servant in public interest, the requirement is that no such order will be made unless the competent authority has informed in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against it."

17. Be that as it may, the law is well settled on the point that any property, whether movable or immovable, once dedicated as 'Waqf' for any religious or charitable purpose, cannot be used/ utilized for any other purpose, hence, the allotment in favor of the respondents and in its furtherance, proprietary rights have been issued illegally and the learned Custodian, unfortunately failed to consider this fact and reached at an erroneous and arbitrary conclusion, which is not maintainable in any manner. To issue the PRTO on the basis of subsequent and illegal allotment is a void order and under section 18(B) of the Azad Jammu and Kashmir Administration of Evacuee Property Act, 1957, the learned Custodian should have accepted the review petition and cancelled the allotment as well as the PRTO and in the stated case, under the above provision of law, he could have exercised the powers any time, so, to dismiss the review petition as time-barred is against the law and facts.

18. The pith and substance of the above detailed discussion is that the instant writ petition is accepted. The impugned judgment of the learned Custodian dated 23,06.2014 stands dismissed. The allotment chit, issued in favor of the predecessor of the respondents, along with the PRTO dated 02.011.2011 are also cancelled. Resultantly, the earlier allotment made in favor of the predecessor of petitioner, herein, dated 23.11.1949, for 'Madarsa' stands restored and the land, in the use and possession of the 'Madarsa' is hereby declared as 'Waqf' Property. SA/38/JK(HC) Petition accepted.