P L D 1954 Peshawar 1 (PLP)

MUHAMMAD SHAFI, J.‑Haji Mian Abdullah and 17 others instituted a suit against Umar Bakhsh and 44 others, for a declaration that land bearing Khasra Nos. 490/458, 489/458, 448, 426, 437, 438, 432 and the middle portion of 457 was a graveyard, Khasra Nos. 442, 426, 427, 429, 431 and the northern portion of 457 was a vacant site attached thereto, and Khasra Nos. 455, 430, 431 and 425, the road leading to it, and belonged to the Muslims generally and that the defendants had no right to use the above property except for the purpose they were meant for. The plaintiffs have also asked for a permanent injunction that the defendants should not construct any building on that property, and should be ordered to demolish the buildings already constructed thereupon. The suit was resisted by most of the defendants on different grounds, which are fully reproduced in the following issues :‑

1. Is the suit liable to dismissal for want of sanction of the Advocate‑General ?

2. Whether the suit is liable to dismissal under section 91 C. P. C.

3. Whether the suit land is the property of the general Muslim public, and being used as a cemetery, or for the purpose of cemetery by them ?

4. Whether the plaintiffs are estopped by their conduct from bringing the present suit ?

5. Whether the defendants have purchased the suit property or a portion thereof, if so with what effect ?

6. What is the effect on the present suit of the order dated 11th April, 1939?

7. Whether defendants Nos. 1, 2 and 23‑31 had brought a suit for setting aside the order passed under section 145 Cr. P. C., if so with what effect ?

8. Has the suit been correctly valued for purposes of Court -fee and jurisdiction ?

9. Is the suit bad on account of mis‑joinder of parties and causes of action ?

10. Are defendants bona fide purchasers with valuable con sideration, if so, what is its effect on the present suit ?

11. Whether the suit as laid is not competent ?

12. Whether defendants have effected any improvements, if so, how much, and are they entitled to any compensation ?

13. To what relief are the plaintiffs entitled and against whom ? The learned Sub‑Judge 4th Class Peshawar, by his order dated 26th March, 1949, granted a declaration in favour of the plaintiffs to the following effect :‑‑‑ " (a) land measuring 86 kanals 17 marlas in all field Nos. 490, 458, measuring 25 kanals 3 marlas, 489/458 measuring 3 kanals, 43 kanals 9 marlas out of field No. 439 (now split up into Khasra numbers including Khasra Nos. 505/ 448 and 504/448), field Nos. 426 (including. 426 min) 437, 438 and 432 is a cemetery and that land entered in fields Nos. 452 and 425 is a path for the cemetery. (b) a perpetual injunction restraining the defendants from con struction over the above mentioned field Nos. and (c) a Mandatory injunction for the demolition of the abadi over the above mentioned field Nos. " The plaintiffs" suit with regard to the other field numbers was dismissed. The defendants were ordered to remove the super structure of the field numbers with regard to which the decree was granted in favour of the plaintiffs within three months from the date of the order; otherwise it was to be removed by the plaintiffs at the expense of the defendants. The parties were left to bear their own costs. As against this decree two appeals were instituted in the Court of the Senior Sub‑Judge Peshawar, one on the 7th of June 1949, by Haji Masiti etc., defendants Nos. 1, 2 and 23‑31, and the other on 13th June 1.949, by the plaintiffs. On the 4th of February 1950, the Governor North‑West Frontier Province, by Notification No. 101‑102,C. I , purporting to' exercise the powers conferred upon him under section 3 of the Charitable Institutions (North‑West Frontier Province) Act, 1949, took over and assumed the administration, control, management and maintenance of the entire property with regard to which the declaration was granted by Sub‑Judge 4th Class Peshawar, on the 26th of March 1949. This Notification was published in the North‑West Frontier Province Official Gazette of the 24th of February 1950. The learned Senior Sub‑Judge by his order dated 5th April 1950, refused to entertain the appeal of Haji Masiti and others on the ground that the property with regard to which the decree had been granted against them having been taken over by the Provincial Government his jurisdiction to question this order, or pass any order or decree in the case, was barred by section 16 of the North‑West Frontier Province Charitable Institutions Act of 1949. So far as the plaintiffs appeal was concerned he found no substance in it. Both the appeals were, therefore, dismissed. Haji Masiti etc., defendants have come up in revision to this Court. The sole question which is to be determined in this case at this stage is, whether by reason of the Notification referred to above, the jurisdiction of a Civil Court to adjudicate upon and pass a decree or order relating to the property involved in it is completely taken away. It is a fundamental principle of law that where the private rights are interfered with, the aggrieved party has a cause of action, which ordinary Civil Courts are bound to entertain. This is what is expressly laid down in section 9 of the Civil Pro cedure Code, which runs as under :‑ " The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly Explanation.‑A suit in which the right to property or to an office is contested is a suit of a civil nature, notwith standing that such right may depend entirely on the decision of questions as to religious rites or ceremonies." Apart from section 9 C P C there are several other enactments enacted by the Central and Provincial Legislatures which give a right to the people to institute their suits in the ordinary Civil Courts. Even if with regard to the violation of a civil right there is no provision in any enactment for bringing the matter to the ordinary Civil Court for decision, there still would be indepen dently of any Statute an exiting and an inherent right of all members of a free Nation to institute such a suit in such Courts, and have judicial pronouncement one way or the other. The Legislature has, however, a power to pass an enactment taking away such right in certain matters, but then it should do so either expressly or by necessary implication. It is a cardinal principle of law that the ouster of ordinary Civil Court's jurisdic tion. which even the Legislature must enact most sparingly and only when it is absolutely essential in the interest of the Nation, is an Exception and not a rule and should in no case be readily inferred. The party contending it must establish it and establish it conclusively and beyond any reasonable doubt. The Statute enacting such an ouster should be very strictly construed and should in no case be given a liberal and wide interpretation. It is the Civil Courts that give a Nation much needed stability, and it is their decisions that help to give a strong, balanced, national Government. Civil Courts alone protect the liberties and the property rights of the people from violation from the Gov ernment, and the people in authority. It is, thus, of utmost importance that the jurisdiction of such Courts is most jealously guarded and firmly maintained. Even in those cases in which the Legislature has considered it fit to exclude the jurisdiction of the ordinary Courts. it is the duty of such Courts to carefully examine such enactments and see if the matter pending before them is expressly or by necessary implication covered by it. The Statutory Tribunals set up by such enactments are bound to strictly comply with the provisions of the Act, and act in conformity with the fundamental principles of judicial procedure. If the Courts find that such authority has acted beyond its jurisdiction, or its proceedings are tainted with fundamental irregularity, the Civil Courts should not feel shy in becoming seized of the jurisdiction with regard to the matter pending before them. They shall be failing in their duty, if they in the circumstances mentioned above refused to impart justice to the people and not act in the normal way. Now, Notification No. 101‑102‑C. I. referred to above does admittedly infringe the property right of the people in possession of the property notified. It results in civil wrong cognizable by the Civil Courts on the general principle enunciated above. The learned Government Pleader, however, argues that the jurisdiction of the Civil Courts to question this Notification is expressly taken away by section 16 of the North‑West Frontier Province Charitable Institutions Act VIII of 1949 (hereinafter called the Act), which runs as under :‑ "(i) Subject to the provisions of this Act, no Court or officer, under any enactment for the time being in force, shall have jurisdiction to pass any decree or order in any matter relating to or in any other way deal with the ownership, possession, administration, control, management and maintenance of any charitable institution or any property. (ii) No order passed, action taken, notification issued and decision given under the Act or the rules framed there under shall, except as provided in the Act, be called in question in any Court, provided that the provisions of the Cr. P. C., 1898, will apply to the person convicted under section 19 of this Act." So far as the application of subsection (ii) of the above section to the facts of the present case is concerned, we have only got to take into consideration the Notification issued under section 3 of the Act, because there is no order passed, action taken, Notification issued and decision given under any other provision of the Act, which is called in question in this case. Section 3 of the Act runs as under :‑ "(i) The Provincial Government may, by general or special order published in the Official Gazette, by location or descrip tion, name or otherwise of any charitable institution or property, or class of such institutions or property, take over and assume he administration, control, management and maintenance of the charitable institution or the property so specified. (ii) The Provincial Government shall from the date of the publication of an order under the last preceding subsection, be solely in charge of the administration, control, maintenance and management of the charitable institution or the property so specified." The words "Charitable Institution" and property" occur both in the first subsection of section 16 and as well as section 3 of Act. "Charitable Institution" and "Property" are both defined in the Act as under : Charitable Institution shall mean Muslim institution used for or dedicated or devoted to any charitable purpose, the admi nistration, control, management or maintenance of which has been taken over and assumed by the Provincial Government as hereinafter provided.' "Property shall mean every description of moveable and immoveable 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 adminis tration, control, management or maintenance 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, donations and shares in Joint Stock Companies registered under the Indian Companies Act 1913." The words "Charitable purpose" used both in the definition of "Charitable Institution" and "Property" are defined by the Act as under :‑ "Charitable purpose includes relief of the poor, 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". Reading the definitions of all these three terms together, it can safely be said that they only refer to the property commonly known as waqf property, and to no other. For the salve of brevity, therefore, in this judgment wherever it is necessary to use the terms charitable institution and property, the term waqf property shall be used. A careful study of the North‑West Frontier Province Charit able Institutions Act VIII of 1949, will show that it does not create the waqf property; it only provides a machinery for the control and management of such property by the Government. In order, therefore, to attract the application of the Act, there is to preexist "Waqf Property". The Provincial Government by issuing Notification under section 3 of the Act, can take over and assume the administration, control, management and maintenance of the waqf property alone and of no other. The property which is not waqf property as understood by the Act cannot become so far the mere reason that the Provincial Government has assumed its administration, control, management and maintenance by a Notifi cation under section 3 of the Act. Similarly under the first sub‑section of section 16 of the Act it is only the waqf property in the matter of which a Civil Court is debarred to pass any decree or order, or in any other way deal with its ownership, possession, administration, control, management and maintenance. If the Provincial Government takes over or assumes the administration, control, management and maintenance of any property, which is not waqf property, it goes beyond its jurisdiction, and the ordinary Civil Court shall continue to have the jurisdiction to pass any order or decree in relation thereto or question any order passed, action taken, Notification issued and decision given in regard to it. It is an admitted principle of law that if an authority has jurisdiction to decide a matter, whether his decision is right or wrong, it must be given effect to, because the jurisdiction to do a thing includes the jurisdiction to do it wrongly as well as rightly, but where the very jurisdiction for deciding a matter or making an order is wanting, the decision or order is a nullity in law and it must entirely be ignored. The learned Government Pleader has invited our attention to section 5 of the Act, which runs as under :‑ "(i) Any person in possession of or claiming any interest in any immovable property the control of which has been assumed by the Provincial Government under section 3 of charitable institution, by petition to the Administrator or any other officer authorised by the Provincial Government in this behalf may, within one month of the publication of the order under section 3 of this Act, ask for a declaration‑ (a) that the charitable institution or the property in question is not the charitable institution or the property within the meaning of subsections (c) and (d) of section 2 of this Act ; (b) that it is a charitable institution or property within the limits stated in the petition. (ii) On receipt of such petition the said officer shall hold an enquiry, recording such evidence as the petitioner or the Government may produce in the case. (iii) After the enquiry such officer may reject or accept the petition or pass any other order on the petition that he deems fit and his decision, subject to subsection (iv) of this section, shall be final. (iv) An appeal shall lie from the final order made under subsection (iii) within 15 days of such order to the Court of the Judicial Commissioner, North‑West Frontier Province, whose decision shall be final." He contends that this section gives to the Administrator appointed under the Act exclusive jurisdiction to pass an order with regard to the property, the control of which has been assumed by the Pro vincial Government under section 3 of the Act. He, however, forgets that the Administrator appointed under the Act has no jurisdiction whatsoever to entertain an application under this section with regard to every kind of property or pass a final order with regard to it. He has exclusive jurisdiction only with regard to the waqf property, and pass an order in regard to it, and to no other. The Government Pleader wishes us to give a very wide meaning to the word "Property ", and hold that it includes all kinds of property, whether it is waqf or not. This is clearly against the spirit as well as the express purpose of the Act, as well as the definition of the property given in the Act. The result is that we hold that ordinary Civil Courts have jurisdiction to examine in every case, in which it is contended that their jurisdiction is ousted by the Act, whether the property involved is in fact a waqf property or not, and if they find that it is the one, and the control, administration, management and maintenance of which has been taken over and assumed by the Provincial Government under section 3 of the Act, they should take their hands off it, but if, on the other hand, they find that the property is not waqf property, they should at once become seized of the jurisdiction, and adjudicate upon the matter in spite of the Notification under section 3 of the Act, or any order passed by the Administrator or any other authority under the Act. Now, the learned Senior Sub‑Judge in this case has, while refusing to entertain the appeal of Haji Masiti and others, assumed that the property involved in the appeal was the waqf property. This he has done simply because a Notification with regard to it had been issued in the North‑West Frontier Province Official Gazette. This, in our opinion, is completely an erroneous view. It was the bounden duty of the learned Senior Sub‑Judge, when it was contended before him that the subject‑matter of the appeal was a waqf property, to find out whether it was really waqf or not, and he should have refused to entertain the appeal only when he found it to be so. The plaintiffs had asserted in their plaint that the property was either a graveyard or a site attached to it or a path leading thereto, and was owned by the Muslims generally. The learned trial judge found certain Khasra numbers to be the graveyard and certain others as the path leading to it, but then he did not either specifically or by necessary implication say whether the graveyard or the path leading to it was used for, or, was dedicated or devoted to any charitable purpose, which included relief of the poor, orphans, education, worship, medical relief, shrine, or the advancement of any other object of charit able, religious or pious nature, or of general public utility. In this country, as perhaps in every other country, there are graveyards which are the property of one single individual, or a family or a particular class of people. There are also graveyards which belong to Muslims generally. It will be wrong to assume that as a certain property happens to be a graveyard, it automatically is a charitable institution or the property as defined by the Act. The Courts have got to find the graveyard as such before their jurisdiction in regard to it is ousted by section 16 of the Act. We consequently hold that the learned lower Appellate Court has by dismissing the defendants' appeal on the ground that it had no jurisdiction to entertain it, refused to exercise the jurisdiction vested in it by law. The revision petition is, therefore, accepted, and the case remanded to the learned lower Appellate Court under section 151 C. P. C. with the direction that it should hear the appeal in the light of the above observations, and decide the case according to law. Costs will follow the event. Orders announced. A. H. Petition accepted.