2004 PLP 599 (CLC)

8. It is better and appropriate to reproduce .the relevant paras. Of Muhammadan Law by D.F. Mullah and sections 16 and 17 of Punjab Waqf Properties Ordinance, 1979 to resolve the controversy between the parties:-- "

173. Wakf as defined in the Wakf Act.

Wakf means the permanent (section 174) dedication by a person professing the Mussalman faith of any property (sections 175-177) for any purpose recognized by the Mussalman law as religious, pious or charitable (section 178)."

193. Wakf Proper cannot be alienated.

Wakf property cannot be alienated except in the cases mentioned in sections 207 and 208 (x).

207. Power of Mutawalli to sell or mortgage.

A Mutawalli has no power without the permission of the Court, to mortgage, sell or exchange Wakf property or any part thereof, unless, he is expressly empowered by the deed of Wakf to do so.

208. Power of Mutawalli to grant leases.

A Mutawalli has no power to grant a lease of Wakf property, if it be agricultural, for a term exceeding-three years, and, non-agricultural, for a term exceeding one year

(a) unless he has been expressly authorized by the deed of Wakf to do so; (b) or, where he has no such authority, unless, he has obtained the leave of the Court to do so (y); such leave maybe granted even if the founder has expressly prohibited a lease for a longer term." Mere reading of the aforesaid paragraphs of D. F. Mullah reveals that auction of the respondents is not in accordance with Injunction of Islam as the property in question had been leased out in violation of the principle of Injunction as highlighted in the aforesaid paragraphs. Section 16 of Punjab Waqf Properties Ordinance, 1979. Sale of Waqf property b Chief Administrator and application of proceeds.

Government may, where it is satisfied that circumstances exist which make it necessary to sell or otherwise dispose of any Waqf Property in order- (a) to secure maximum economic benefits out of such property and to avoid loss of damage to such property; or (b) to serve the best public interest and public purpose for which such property was dedicated; or (c) to give effect to such wishes of the person dedicating the property as can be ascertained; or (d) in the absence of evidence of express dedication, to enable the property to be used for the purpose for which it has been used or for any purpose recognized by Islam as religious, pious or charitable: or (e) to provide maintenance to those who, on account of unemployment, sickness, infimity or old age are unable to maintain themselves; or (f) to provide education, medical aid, housing, public facilities and services such as roads, sewerage, gas and electric power, etc. (g) to prevent danger to life, property or public health, permit the Chief Administrator to do so and to invest the proceeds in accordance with its directions. Use of Waqf property and application of income therefrom-- Subject to the provision 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 Chief Administrator may deem fit.

9. Mere reading of the aforesaid provisions of Punjab Waqf Properties Ordinance, 1979, clearly reveals that auction was not held by the respondents keeping in view the ingredients prescribed by the legislature in the said sections. It is settled principle of law that it is the duty and obligations of each and every public functionary to act in accordance with law as is envisaged by Article 4 of the Constitution. It is also duty and obligation of each and every public functionary to act in obedience of the Constitution as is envisaged by Article 5(2) of the Constitution, which was interpreted by the Honourable Supreme Court in Ch. Zahoor Elahi's case PLD 1975 SC

383. It is also settled principle of law that each and every public functionary has to apply its own independent mind at the time of passing the order. In the present case, respondent No. 1 has not passed any order after applying its independent mind and no order is placed on record by the respondent-department to show that respondent No. 1 has passed the order with reasons, which is condition precedent, after addition of section 24-A in the General Clauses Act, it has retrospective effect, as per law laid down by the Honowable Supreme Court in Messrs Airport Support Service's case 1998 SCMR 2268 and Zain Zair Khan's case 1998 SCMR 2419. Respondent No.1 has not passed the order after applying its conscious mind, simply to endorse the office note, which does not mean the application of mind. In fact, it tantamounts to countersign the office note without applying independent mind, therefore, same is not sustainable in the eye of law, in view of law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din's case PLD 1964 SC 829.

10. The Legislature had mentioned specific word "satisfaction" in section 16, Punjab Waqf Properties Ordinance, 1979, coupled with the other conditions mentioned in clause (a) to (g), the respondents did not pass any order after satisfaction which is condition precedent under section 16, Punjab Waqf Properties Ordinance, 1979, therefore, assumption of the jurisdiction by the respondent-department is not in accordance with parameters prescribed by the Legislature in the said section, therefore, the same is not sustainable in the eye of law, as per law laid down in the following judgments:-- Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166 and Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah.

725. The phrases "satisfy" means simply makes upon to its mind as defined in Blyth's case 1966 AER

524. The word "satisfy" means only persuasion, which means a mind not troubled by doubt or to adopt the language of Smith, which has reached clearly conclusion as held as in Angland v. Payne 1944 N.Z.L.R.

610. The word satisfaction means the existence of the state of mind persuasion, much higher than mere opinion as interpreted by the superior Courts in the following judgments:-- Abdul Ghafoor v. The Crown PLD 1952 Lah. 624, Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135, Dr. Ejaz Hassan Qureshi and others v. Government of Punjab and others PLD 1978 Lah. 1419, Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and others 1994 CLC 2041, Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 and Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC

166. The ratio of the aforesaid judgments is that satisfaction is to be objective in nature and not subjective and of such nature as not to allow the authorities to act on whims and caprices without there being material before them.

11. The land of the Auqaf Department was acquired for extension of area of Cantonment, which was declared void by this Court in Sahibzada Mansoor Ahmad v. Chief Administrator Auqaf 1993 MLD 2529. The relevant observation is as under:-- "Subsequently, the reason for holding this proposition of law based on Islamic Injunctions was that with the dedication of the properties for religious and pious purposes the dedicator was divested of all ownership rights in the property and the property absolutely vested in Almighty God. Since the Chief Administrator of Auqaf was bound by the original declaration as contained in Farman, dated 4-4-1958, therefore he also had no power to exclude the name of the beneficiaries mentioned therein ..... Since the land was dedicated for charitable, religious and pious purposes and was Waqf property, therefore, the acquisition of the same under the Land Acquisition Act, for extension of area of Cantonment or any other purpose through Notification No.1AC/DC/BWP/755; dated 30-12-1984 was void and ineffective as regards the land subject-matter of Waqf. " The proposition in question was considered by this Court in Malik Aslam Pervaiz v. Province of Punjab and others 1994 MLD 1986 and laid down the following principle:-- "West Pakistan Wakf Properties (Administration) Rules, 1960, Rule 7 of which provides that the lease of Wakf property shall be in writing and its period shall not exceed three years provided that the Chief Administrator may grant a lease for any longer period if in his opinion, such an action is necessary in the best interest of the Wakf property. The discretion vesting in the Authorities in this rule to grant a lease like all discretionary powers has to be exercised in a judicious, proper, fair and just manner and not arbitrarily or capriciously .... According to the Muslim Jurists, Wakf property is like the property of an orphan and its management cannot .be allowed. It needs also to be stated that the dedicator had dedicated the property to Allah Almighty and not for the benefit of the Chief Administrator or employees of the Department. So far as the Muslim Law is concerned, it appears to be well-settled and all the Muslim Jurists are agreed that an appropriation of the property, which virtually amounts to sale or transfer cannot be allowed. In Hedaya by Charles Hamilton at page 335, it is stated that under an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, according to all lawyers; the transfer is 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 salable or inheritable. An appropriation, therefore, is incapable of sale or transfer, upon becoming valid and absolute. Reference may also be made to Digest of Mohammadan Law by Neil B.E. Baillie 1957 Edn. 607, wherein it has been stated that it is not lawful to let a Wakf except for the rent of similar property'. It has, further been opined that where the Superintendent of Wakf lets the property to a Wakf at an inadequate rent, the lease is unlawful." The aforesaid principle was followed in Malik Aslam Pervaiz's case (supra) as per principle laid down in Muhammad Sadiq and others v. Chief Administrator, Lahore PLD 1972 Lah. 780, which is also supported by the dictum laid down in Qazlbash Waqf v. Chief Land Commissioner Auqaf PLD 1990 SC

99. The Auqaf Department has leased out the land for 99 years to its employees which action was finally decided by D.B. of this Court in Intra-Court Appeal No.383 of 1994 vide judgment dated 17-1-2002 and upheld the aforesaid judgment in Malik Aslam Pervaiz's case 1994 MLD 1986. It is settled principle of law that judgment of Division Bench of this Court is binding upon the Single Judge of this Court; therefore, for the reasons recorded in the said judgment of Division Bench of this Court, action of the respondents is C without lawful authority. The Honourable Supreme Court insisted that cases should be decided on merits and not dismissed on the technical grounds, as per principle laid down by the Honourable Supreme Court in the following judgments: Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Masooda Begum through Legal Heirs v. Government of Punjab and others NLR 2003 SCJ

428. It is also admitted fact that the property in question was leased out by the Auqaf Department for their employees or for private respondents at very meagre rate as mentioned above for 25 years which tantamounts to a sale. The respondents Auqaf Department as mentioned above, has no, lawful authority to sell the property or to lease the property for more than three years in violation of parameters prescribed in the Ordinance l itself and in violation of Injunctions of Islam.

12. It is admitted by the Auqaf Department that Waqf was created by original owner of the properties in question; therefore, property has automatically vested to Almighty Allah, which could not be alienated or transferred by sale except in accordance with Injunction of Islam. It is also settled principle of law that. Auqaf Department has no lawful authority to sell Waqf properties as the same has been permanently dedicated for charitable purpose in the name of mosque, in violation of law and Injunctions of Islam.

13. In view of the aforesaid judgments, rules, regulations and provisions of Punjab Waqf Properties Ordinance, 1979, the lease which was granted beyond the period of three years, is not in consonance with the provisions of law and rules and regulations, therefore, it tantamount to a sale of the property in question, which is not permissible in the eye of law. The property in question is situated in commercial area and the land which is adjacent to the land in question has higher price. Respondent No. 1 had given the land in question on lease at very meagre rate i.e. Re. 1 and 2 per Marla, which is not justified in any canon of justice. This fact alone is sufficient that the Authority has leased out the property in question in violation of mandatory provisions of section 16 Punjab Waqf Properties Ordinance, 1979, without applying its independent mind.

14. It is the State functionaries who are expected to act fairly and exercise jurisdiction in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise, meaning thereby discretion must be exercised by the Authority without any malice in good faith after its satisfaction within parameters of law. In the present controversy, respondent No. 1 has not exercised discretion in accordance with law, therefore, auction of the respondents is without lawful authority. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Shaukat Ali v. Government of Pakistan PLD 1997 SC 342 and Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd. PLD 1991 SC

14. The contention of the learned counsel of respondents that petition under section 11 of the Punjab Waqf Properties Ordinance, 1997 filed by the petitioner before the learned District Judge concerned has no relevancy qua the present controversy- in this writ petition, therefore, the contention of the learned counsel of the respondents has no force. It is pertinent to mention here that statutory, opinion must be an honest opinion or conviction, based on tangible material capable of sustaining such opinion and not an ex parte opinion or colourful exercise of statutory power as the law laid down by the Full Bench of this Court in Kh. Muhammad Sharif's case PLD 1988 Lah. 725 and Store Rolling Mills' case PLD 1974 Note 129 at p.189 = Kar. 1974 PTD

200. In view of what has been discussed above, these writ petitions are accepted with no order as to costs. M.B.A./N-361/L Petitions accepted.