2018 PLP 217 (CLC)

MUHAMMAD SHERAZ KAYANI, J.

The above titled appeal has been filed against the judgment passed by District Judge, Neelum on 27.08.2016, whereby, the learned Court below has cancelled the Notification dated 11.12.2013.

2. Brief facts forming background of the instant appeal are that Syed Faiz Ali Shah, applicant/respondent, herein filed an application under Section 7 of the Azad Jammu and Kashmir Waqf Property Act, 1960, for cancellation of Notification dated 11.12.2013, before the Court of District Judge, Neelum on 27.02.2014, stating therein that the forefathers of the applicant, had been serving the people, spiritually in village Nagdar Kanari, for the last four centuries. It has been stated that Syed Sarwar Shah known as Baba Syed Habib Shah Qalandar died in the said village at the place known as 'Takya', where his tomb is present at the time, which was constructed by Syed Sultan Shah the descendent of Baba Syed Habib Shah Qalandar. It has been further stated that the graves of Syed Sultan Shah and his son Syed Nabi Shah are also there and the plaintiff has been running the administration of the shrine of 'Baba Syed Habib Shah' since 1984. He has constructed a Masjid and also a Madarsa on the disputed land and some shops were also built in the premises of the shrine by the applicant and the respondents, with mala-fide intention and in order to snatch the means of charity income have issued Notification dated 11.12.2013, whereby, the shrine and the attached property have been taken into the control of the Auqaf Department.

3. The application was contested by the respondents/appellants herein by filing objections, stating therein, that the application is time-barred because for filing an application under Section 7 of Azad Jammu and Kashmir Waqf Property Act, 1960, the prescribed limitation is 30 days, whereas, against the Notification dated 11.12.2013, the application has been filed on 27.02.2014. It was stated by the respondents that the applicant has nothing to do with the shrine and he has no relationship with the shrine of Baba Syed Habib Shah as he has not filed any pedigree table, issued by the concerned Department to ascertain his relationship with Baba Habib Shah Qalandar and only a hand written table has been attached, in order to protect the ill-gotten gains. The respondents have issued the impugned Notification for better administration of the shrine, under Section 6 of the Act of 1960. It was alleged that Baba Habib Shah did not have any son and the shrine was built by the inhabitants of the village and attached property has also been built by the people of the village and the applicant has no concern with the same.

4. The learned trial Court, in light of the pleadings of the parties, framed issues and directed the parties to lead evidence and on conclusion of the trial, vide judgment dated 27.08.2016, allowed the application and set aside the Notification dated 11.12.2013, hence, the above titled appeal before this Court.

5. Mr. Muhammad Akhlaque Kayani, the learned Additional Advocate General, inter alia, argued that the application filed by the present respondent was clearly and hopelessly time-barred, which did not merit any deliberation. The learned counsel further argued that the applicant/respondent, herein, did not bother to submit his pedigree table before the trial Court, deliberately because he does not have any relationship with Baba Syed Habib Shah Qalandar, whose shrine was being used by the applicant/respondent, herein for monetary gains. The AAG contended that the Administrator, Auqaf under Section 6 of the Act,1960 was quite competent to take over the control of the shrine and its attached property and the said Notification was also published in the official gazette. The AAG contended that the income, earned by a shrine has to be used for the betterment of Muslims and not for certain persons, therefore, the Notification under challenge has been issued, strictly in accordance with law but the learned Court below, without due application of judicial mind, without considering the peculiar facts and circumstances of the case, and also on a time-barred application has set aside the impugned Notification and the findings of the learned Court below, being bad in law are not maintainable in any manner, therefore, by accepting the instant appeal, the judgment under challenged be vacated.

6. On the contrary, Ch. Muhammad Manzoor, Advocate, the learned counsel for the respondent, while defending and supporting the impugned judgment, contended that the applicant/ respondent, herein is in possession and continuous use and control of the impugned property since eighties but the respondents illegally and arbitrarily, by issuing the impugned Notification, took over the control of the shrine, which has rightly been nullified by the learned Court below through the judgment, impugned herein. The learned counsel also negated the other arguments of the learned AAG and contended that impugned judgment, being in accordance with law, does not suffer from any illegality, irregularity or perversity hence, merits no interference by this Court and also craved for dismissal of the appeal with costs.

7. I have heard the learned counsel for the parties, perused the record, relevant law and considered the controversy with utmost care.

8. The first objection raised by the applicant/respondent, herein, regarding jurisdiction of the Administrator Auqaf, to take over the control of the Waqf property. In this regard, it may be stated that the Administrator, Auqaf, under the Act, 1960 is fully empowered to take over the control of any Waqf property. Relevant provision of law, for proper perception of the controversy is reproduced, which reads as under:- "

6. Administrator may take over Waqf property by Notification:-Not withstanding anything contained in section 22 of the Religious Endowments, Act, 1863, the Administrator may, by Notification, take over and assume the administration , control, management and maintenance of a Waqf property."

9. Under the above reproduced provision of law, the Administrator is vested with ample powers to assume the control and administration of any Waqf property, therefore, this objection of the applicant/respondent, herein has no substance, hence stands repelled.

10. So far the question of jurisdiction of the District Court to hear the petition against such Notification is concerned, the matter is governed by Section 7 of the Act, 1960, which is reproduced, hereunder:

7. Petition to District Court against Notification. (1) Any . . (a) that the property is not Waqf property."

11. The above section postulates that the District Court may decide a controversy, where it is claimed that the property under Notification is not a Waqf property, whereas in the instant case, from the averments of the application and nature of the property, it is impliedly admitted that the property in question 'shrine and its attached property', is a Waqf property. In this behalf, it seems appropriate to reproduce the definition of the Waqf Property, which lies in Section 2(d), explanation, 1 and 2 of the Act, IX of 1960 and reads 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 it described in section 3 of the Mussalman Waqf Validatig 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. Explanation

1. If a property has been used from time immemorial for any purpose recognized by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf." (underlining is mine)

12. There is another objection raised by the learned counsel for the respondents regarding shops, Madarsa etc. that the same have been constructed by the petitioner or some other individuals. In this regard, explanation 2 of Section 2(d) of the Act is clear enough, which for the sake of convenience, is reproduced, hereunder: Explanation

2. Property of any kind acquired with the sale proceeds or in exchange or from the income arising out of Waqf property or from subscription raised for any purpose recognized by Islam as religious, pious or charitable, shall be deemed to be Waqf property ." (underlining is mine)

13. In view of the above section of the Act, any property, notwithstanding the fact, as by whome it has been built or brought up, if stands on the expense of the shrine or any Waqf property, shall definitely include in the Waqf property. It is undisputed that subscriptions and other offerings are given at the shrine and nowhere, it has been claimed that the attached construction was raised at the costs, borne by the petitioner/respondent his ancestors from their own pocket.

14. As far the question of acreage of the assumed landed property is concerned, I have examined the revenue record, i.e. copy of Khasra Girdawari, pertaining to year 2010-2011, wherein, the description of the land in dispute, in the column of owners has been given as under:-

15. A careful perusal of the above revenue record reveals that land measuring 6 kanals, 7 marlas is reserved for grave yard, whereas, the shrine, Madarsa, Masjid and shops have been constructed on a piece of land, total measuring 1 kanal, 10 marlas, and the said property, only can be declared as 'Waqf property' because the land of graveyards always reserved for the Muslims of the area and cannot be declared, the property of any individual or any institution and each and every Muslim has right to be buried in the graveyard. Furthermore, through the impugned Notification, only the shrine of Habib Shah Qalandar or its connected and attached property was taken over. The Notification does not mention anything about the graveyard and neither a graveyard can be declared as the attached or part of the shrine due to its different use and character, in fact, Auqaf Act was not intended to take controls of the General graveyards. So, the inclusion of the graveyard, in the impugned Notification measuring 6 kanal 7 marlas is against the law and ineffective.

16. In the above circumstances, in my view, the Administrator must have assumed the control of the Waqf property, only, by excluding the land of graveyard. Hence, the Notification under challenge, to the extent of land measuring 1 kanal 10 marla has been issued rightly and compe-tently, whereas, to the extent of remaining land the same is bad in law.

17. As far the contention of the learned counsel for the respondent that the plaintiff has been in the continuous use and control of the property in question is concerned. In this regard, it may be stated that before promulgation of the Act, IX of 1960 all religious properties were in the control of the relevant Muslim families or the individuals and the said law has been enforced to regulate such properties, therefore, the beneficiary of such properties, howsoever, old may be, does not have any right to claim his ownership on such property, rather the same has been declared sufficient evidence to declare such property as Waqf property. The point attracted the consideration of the Hon'ble apex Court of Pakistan in case titled, 'Muhammad Ramzan v. The State and others, [2013 SCMR 737]. Relevant observation situates at page 741 of the report, which is as follows:- "

6. A perusal of the record of rights from the years 1891-92 prepared during the first settlement operation shows that the property in dispute was recorded as ownership of the mosque. These entries have been repeated throughout without there being any change. Yes, it is a village common property but the village proprietary body dedicated it to the mosque. At no point of time, any member of the village proprietary body interfered with the rights of the mosque. It is, therefore, a waqf to all intents and purposes. Its long, continuous and uninterrupted use as Waqf leaves no doubt that is Waqf out and out. Reference to the case of Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others, [1995 SCMR 1584] which has been extensively quoted in the impugned judgment may well be referred to in this behalf. Once, the nature of a property as Waqf is established, no back door intrusion into the same by a former owner can be allowed to resume, retrieve or reclaim it under any law worth the name. Reference to the Customary Law cited above and the judgments rendered in the cases of Anjuman Masjid Faroogia and 3 others v. Mst. Fazal Begum and 3 others, 1991 SCMR 2112 and N.S Raja Badar Mudaliar v. M.S. Vadivelu MUdaliar and others, {AIR 1970 SC 1839} would therefore, have no perceptible relevance to the case in hand."

18. In view the law laid down in the above quoted case, this objection of the petitioner/respondent, being without substance also stands repelled.

19. In light of the above observations, this Court has come to the conclusion that the Notification dated 11.12.2013 to the extent of land measuring 1 kanal 10 marlas, along with the constructions; i.e Masjid, Madarsa and shops has been issued, rightly and competently and has wrongly and illegally been set aside by the learned Court below and the said Notification to that effect, is hereby restored and upheld, however, the said Notification to the extent of the remaining land, reserved for graveyard is bad in law, therefore, is declared ab-initio-void. The judgment under challenge passed by the learned District Judge, Neelum on 27.08.2016 stands modified in the above manner. The appeal stands accepted, partly. ZC/52/HC(AJ&K) Appeal disposed of.