2002 PLP 1771 (MLD)

It, means "communication to the public". Thus the publication does not mean necessarily its publication in the official Gazette but its publication in one of the manners, listed above cannot be reconciled with its true meaning. The same like proposition arose before the Supreme Court of AJ&K and the terms "Notification and publication" were defined in the unreported judgment of the Supreme Court in a case titled "Alam Din and others v. Administrator Auqaf and others, decided on 14‑1‑1989 which reads as under:‑‑ "The controversy emanating from the facts confines to interpretation of meanings of the term `notification' as contemplated under section 6 of the Azad Jammu and Kashmir Waqf Property Act, 1960 (hereinafter referred to as the Act). The grammatic meaning of word `notification' were examined by the learned Judges in the High Court, in the light of its definition described in Webster's `New International Dictionary'. The relevant definition is reproduced:‑‑ "Notification means:‑‑ To bring before the public, as for sale or distribution; to print, or cause to be printed, and to issue from the press, either for sale or general distribution, as a book, newspaper, piece of music engraving etc." On going through the definition described above it has to be accepted that significance of word `notification' is quite exhaustive. Its scope is wide enough as its emphasis is on bringing of a matter in the notice of public in the shape of its print, publication in the press, as a book, newspaper, piece of music and engraving etc. The object is to bring a matter in limelight and clear notice of the public. An action shortfall or in derogation to aforesaid description would not bring such action within the scope and framework of the term 'notification'.

7. The rule of interpretation is that the Court must construe the statute in a manner to derive positive intention of Legislature for which the statute is framed. Ordinarily a word or phrase used in one section is not construed disjunctively from the same word or L phrase used in another section as by doing so it may lead to an erroneous conclusion resulting in defeat of the intention of Legislature. Thus, the expression used in next paragraphs or sections are not to be detached for the purposes of interpretation These are. construed together more so when they are found mutually dependent. This view finds support from Crawford's Interpretation of Laws, pages 260 and

261. It is reproduced: "Each word, phrase clause and sentence are the elements from which the legislative intent is formed. The various words, phrases, clauses, and sentences make up the framework which supports the legislative intent. They are mutually dependent. . Cooperatively, they convey the ultimate idea." and "The Court must construe the statute in this manner, for by failing to do so, the statute is not consolidated in its entirety and the intention of the Legislature is likely to be defeated. The legislative intent is just as apt to be lost where a word, phrase or sentence of the statute is rejected as where they are considered separate and apart from the rest of the statute. This is in accord, without use of word."

8. The word `notification' is to be construed necessarily by a reference to the provisions of sections 6 and 7 of the Act, as the proposition under consideration has emerged from an action taken under these provisions. Provisions of both sections are interrelated and interdependent. Therefore, the meanings of word `notification' are to be ascertained in the light of these provisions and it is not to be construed in isolation of each other: as it may lead to an absurd conclusion.

9. We advert to sections 6 and 7 of the Act. Section 6 postulates that notwithstanding anything contained in section 22 of the Religious Endowments Act, 1963, the Administrator may, notification take over and assume the administration, control, management and maintenance of a Waqf property. Here it may be mentioned that Legislature has referred to the word "notification" And no reference is made to its publication, as we shall see it next it section

7. Section 7(1) deals with petition to District Court against notification. It provided that any person claiming any interest in any Waqf property in respect of which a notification has been issued under last preceding section may, within 30 days of the publication of such notification petition to the District Court within whose jurisdiction a part of Waqf property is situated for a declaration‑‑ . (i) that the property is not Waqf property; (ii) that the property is Waqf property within the limits stated in the petition. It is evident 'from the language of these provisions that the Legislature framed an adequate scheme of law for assumption of control and management of Waqf property and providing of opportunity, procedure and form to an interested person in such Waqf property for the redress of grievance if any. Under section 6, Administrator was empowered to take over any Waqf property, but the section laid a condition precedent that it shall be taken over after a notification has been issued. Action of the taking over of Waqf property follows issuance of notification and not otherwise. Next it was postulated under section 7 (1) that any interested person in such Waqf property in respect of which notification has been issued may bring his claim in the District Court within 30 days of the publication of such notifica tion. Here aggrieved person is provided with remedy of petition to District Court against notification. The limitation for prefer ring petition is thirty days. It starts running with effect from the publication of such notification. It is permissible to construe the meaning of "notification" by reference to the scheme of law regulating the procedure to be adopted by Administrator in assuming the control and management of Waqf property likewise the procedure to avail remedy against the action of Administrator. In view of the complete scheme of law the mean ing of "notification" used in section 6 by necessary implication would include its publication. Thus, we have to assign popular meaning to the word "notification" as used in section 7(1) of the Act. Next we examine the meaning of word "publication". In Dictionary the word "publication" is described as:‑‑ "communication to the public; public announcement; legal notification: the act of process of issuing copies for general distribution to the public: a published work: the distribution in print esp. in technical journals of a taxonomic name together with such description or illustrative material as will characterize and distinguish the organism of group named." It is agreed that there is no reference to publication of notification in the official Gazette. One may agree that publica tion of notification does not mean necessarily its publication in the official Gazette but its non‑publication in one of the manners, listed above, cannot be reconciled with its true mean ings. Simply drawing of an order on the file of Administrator Waqf Property and not making it public as in this case, would not give it legal character of notification in the popular use of the term. Therefore, agreeing with the contention of the learned counsel for the appellant, it is maintained that provisions of section 6 were only to be complied with when control and possession of Waqf property was taken over in consequence of a notification duly published in one of popular methods of publication, as described above. This is not shown to have been done or it is claimed as such by the respondents." ' It would also not be out of place to mention here that the same like proposition also arose before the High Court of Karachi. It was held by the said High Court in the said report, that the word "notification" as defined in West Pakistan General Clauses Act, 1956, means a "notification" published under the proper authority in the official Gazette. In the said report it was held by the High Court that the word "notification" means the publication under the proper authority in the official Gazette. For having proper perception, I would like to reproduce the relevant portion of 1980 CLC 378 which is as under: "

5. Mr. Ajmal Mian, the learned counsel for the petitioner argued that section 7 should be read with, section 6 and if so read it would be clear that the notification referred to in section 7 is clearly the notification contemplated by section 6 of the said Ordinance. I have read both these sections and find that the argument is sound, for section 7 itself refers to 'notification issued under the last preceding section'. The question therefore, that arises is whether the ‑notification contemplated in section 6 is on that is to be published in the Gazette of West Pakistan or it is one which should be addressed to the petitioner. The word 'notification' as has been pointed out by Mr. Ajmal Mian, is defined in the West Pakistan General Clauses Act, 1956 as meaning a Notification published under proper authority in the official Gazette. The learned counsel is, therefore, right that the same meaning should be given to the word `notification' under section 6 of the said Ordinance. The argument finds indirect support in a decision of Supreme Court reported in Syed Muhammad Ali Shah Bukhari v: Chief Administrator of Auqaf in which it was contended 'on behalf of the appellant that before notification under section 6 was issued appellant should have been given a notice of hearing which contention was repelled by their Lordships of the Supreme Court. In that case too what was published was notification in the Gazette issued under section 6 of the said Ordinance."

8. In the instant case, neither the notification was issued regarding the taking over of control and administration of the property in dispute, nor it was published as required under section 7 of the Act of 1960. The notice issued by the Administrator Auqaf did not contain that it was published or affixed on any conspicuous place, on the basis of which, it could be said that this notice was issued for the general information to the public. It is pertinent to note that even the learned counsel for the respondents also contended that no notification for taking over the control of the property under section 7 of the Act of 1960 was issued, therefore, the petition under section 7 was premature. Thus, in this way, r the learned counsel for the respondents is also in agreement with the learned counsel for the appellants that no notification as required under section 6 was issued. It is to be noted that if no notification was issued as required by the Act, then the Administrator Auqaf had no jurisdiction to issue the notice for taking over the control and administration of the property in dispute, therefore, it is held that the Administrator Auqaf has wrongly issued the notice. He was not competent to fake over the control and administration of the property in dispute on the basis of this notice.

9. Now the next question arises whether the property in question was owned by the mosque or the appellant were its owners? The perusal of the copy of "Jamabandi" Exh.P.T, pertaining to the years 1951‑45 Bk, shows that the ancestors of the appellants were recorded as owners of this land. They were retaining the possession of the property as Mauroos, under section 5 of the Regulations of Tenants. But in the last column of the said Jamabandi it was incorporated with red ink "that through the Resolution dated 31‑8‑1904, an exemption from the land revenue was given to the ancestors of the appellants". It also revealed that this exemption was given to them because they were rendering services for the mosque. Subsequently, in Jamabandi pertaining to the year 2001‑2002 in the Column No.4 instead of ancestors of the appellants, the mosque was recorded as Mouroos under section 5 of the Regulation for the Tenants. Now the question arises that when in the Jamabandi for 1941‑45 they were recorded in Column No.4 of the Jamabandi then how in the Jamabandi pertaining to the year 2001‑2002 the mosque was recorded in place of the ancestors of the appellants? Whether they dedicated this land for the mosque? Under section 146 of the Mohammedan Law Waqf means "the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman Law as religious, pious or charitable" Now the question arises whether there is any evidence on the file on the basis of which it could be said that this property was dedicated for the mosque by the ancestors of the appellant" There is no such evidence on the file. Had the ancestors of the appellants dedicated the land for the mosque, then a regular mutation to this effect would have been sanctioned, but no such mutation is on the file, neither any entry of such mutation is recorded in any Jamabandi. The perusal of the record reveals that in 1904, the ancestors of the appellants were exempted from the land revenue on the basis of their services for the mosque and subsequently on the basis of this exemption, the mosque was recorded as Mouroos under section 5 of the Regulation for tenants in Column No.5 of the lamabandi pertaining to the year 2001‑2002. It perturbs my mind that whether merely on the basis of exemption front the land revenue, the property could be termed as a Waqf property'.' The ancestors of the appellant were exempted from the revenue for the services rendered by them for the mosque, but it does not mean that the property regarding which the exemption was given was attached to the mosque. The same like proposition arose before the Lahore High Court in a case titled "Ghulam Mustafa v. Chief Administrator Auqaf, West Pakistan, Lahore (PLD.1970 Lahore 619 (627) and it was held by the Court as under:‑‑ In my opinion, the Malikana rights could not be treated Waqt property. The revenue entries clearly show that the promise of the proprietary body not to receive Malikana was in consideration of services to be rendered to the mosque. This fact is narrated in all the revenue entries which have been referred to above. In Wajib‑ul‑Arz, High Court Exh.1, also, it is clearly stated that Malikana or rent was not payable by the ancestors of the appellants in F.A.O. 39 of 1962 so long as they continued to render services to the mosque, and if they ceased to render these services, the proprietary body by majority of its members will be competent to require payment of Malikana. Now, a Waqf under Muslim Law should show a permanent dedication of property for religious purposes. To my mind, the entries do not show that Malikana rights were ever permanently dedicated as Waqf property for the maintenance of the mosque. The tenor of these entries is that the ancestors of the appellants were not to pay Malikana or rent on account of remuneration for services rendered to the mosque. The remuneration therefore, was in the shape of waiver of the right to receive Malikana or rent during the continuance of these services. On these facts themselves it is not difficult to reach the conclusion that Malikana rights were not the subject‑matter of Waqf.

10. In the aforementioned report it has been clearly held that Malikana or rent was not payable by the ancestors of the appellants so long as they continued to render the services to the mosque. They were exempted from the Malikana or rent in lieu of the service rendered by them for the mosque. This concession was given to them for their service of mosque. On the basis of this exemption it could not be said that the property was a Waqf property, until and unless it was specifically dedicated to the mosque.

11. The same like proposition also came up under consideration before the Lahore High Court in a case titled "Muhammad Khurshid and others v Chief Administrator Auqaf, West Pakistan, Lahore" (PLD 1973 Note 38 at p.50). It was held by the Court that "mere assignment or Maufi of land revenue in favour of a Khanqah does not give rise to presumption that land itself was attached to Khanqah". Thus, on the basis of the exemption from the land revenue, it could not be said that this land was attached to the mosque.

12. It is also pertinent to note that entry of the mosque in the Jamabandi pertaining to the years ' 2001‑2002 is not based on any evidence of dedication of this land to the mosque. Therefore, merely on the basis of the exemption from the land revenue, it could not be said that this land was attached to the mosque.

13. As the contention of the learned counsel for the respondents is concerned "that the remission of the land revenue for the maintenance of the mosque had converted it into a Waqf property and it raises the presumption that the property was attached to the mosque and was used for the religious and charitable purposes" has no substance. As far as the case‑law referred by the learned counsel for the respondents i.e. NLR 1981 (C) 389 is concerned, it is distinguishable because in the said report, it was held that where the property is used from immemorial time for religious and charitable purposes, then the property by its user shall be treated as Waqf property but in this case, there is no evidence on the file that this property was used for the religious and charitable purposes. According to the appellants they have raised the construction of the houses in the property but there is no evidence on the file that this property was ever used for the benefit of the mosque, but the appellants were deriving the benefits of this property, therefore, the aforesaid report has no direct bearing on the facts of the instant case.

14. It would also not be out of place to mention here that section 175 of the Mohammedan Law also contained that a grant of land revenue for the remuneration of Mullah did not constitute a Waqf or endowments. For having proper perception, I would like to reproduce section 175‑D, which reads as under:‑‑ "175‑D, Grant of Land Revenue.‑‑‑A grant of land revenue for the remuneration of a village Mullah does not constitute a Waqf or endowment. The land is partible and heritable and if the holders do not perform the duties of the office, Government enforces its objects by levying full assessment."

15. In the instant case, as stated earlier, that exemption from the land revenue was given to the ancestors of the appellants in Dogra Regime in lieu of service rendered by them for the mosque, but it does not mean that this property was also attached to the mosque. The upshot of the above discussion is that this appeal is accepted and the judgment of the learned District Judge, Kotli and the notice by the Administrator Auqaf on April 5, 1971 are hereby set aside. IH.B.T./30/AJ&K Appeal accepted.