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Petitioner: CHIEF LAND COMMISSIONER, PUNJAB and otherss VS Respondent: CHIEF ADMINISTRATOR
Court Name: Supreme Court of Pakistan Judge(s): Mukhtar Ahmed Junejo, Nasir Aslam Zahid, Ajmal Mian Title:CHIEF LAND COMMISSIONER, PUNJAB and otherss vs CHIEF ADMINISTRATOR
JUDGMENT
Reported As: PLD 1998 Supreme Court 132 Result: Appeal dismissed Judgment JUDGMENT ' NASIR ASLAM ZAHID, J.---This judgment will govern Civil Appeals No,23, 24 and 25 of 1995, as the appellants, who were parties in Writ Petition No,7990 of 1993, have challenged the judgment of the Lahore High Court passed in the said writ petition. Writ Petition No,7990 of 1993 was filed by the Chief Administrator of Auqaf Punjab calling into question the order dated 24-9-1987 passed by the Chief Land Commissioner, Punjab and order dated 14-7-1993 passed by the Federal Land Commission. In the writ petition, apart from Federal Land Commission, Chief Land Commissioner, Punjab and Deputy Land Commissioner, Jhang, where the disputed lands are located, and tenants Ghulam Hussain and others, were impleaded as respondents. The writ petition was allowed by the impugned judgment dated 12-10-1993 passed by the Lahore High Court declaring the orders dated 24-9-1987 and 14-7-1993 of the Chief Land Commissioner, Punjab and Federal Land Commission to have been passed without lawful authority and of no legal effect. The impugned judgment had been challenged before this Court through petitions for leave to appeal. One petition was filed by the Chief Land Commissioner, Punjab, the other by the tenants Ghulam Hussain and others and the third one by Federal Land Commission. By order dated 24-1-1995, this Court granted leave in all the three petitions. The leave granting order is reproduced here:-- "Leave is granted in the abovementioned 3 petitions to consider whether in view of the law laid down by this Court in the case of Chairman, Federal Land Commission, Islamabad and another v. Akhtar Abbas (PLD 1989 SC 550) and the observation of this Court in the case of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99) to the effect that the decision in this case shall not in any manner affect the operation of the self-executory
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provision of the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977 and all provisions ancillary thereto, the excess land in possession of respondents already stood vested in the Government in terms of section 9 of Land Reforms Act, 1977 notwithstanding the fact that the respondents had not filed any declaration and the exact excess area in possession of the respondents was not determined, as required under the Act and the excess land became available for disposal in accordance with the provisions of the said Act?" ' In Civil Appeal No,23 of 1995, appellants are the Chief Land Commissioner, Punjab and the Deputy Land Commissioner; Jhang; in Civil Appeal No,24 of 1995, tenants Ghulam Hussain and others are the appellants and, in Civil Appeal No,25 of 1995, appellants are Federal Land Commission, Chief Land Commissioner and Deputy Land Commissioner, Jhang. We have heard the arguments of Mr. Hafiz S.A. Rehman, learned Advocate Supreme Court for Federal Land Commission, Mr. Muhammad Sayeed Akhtar, learned Advocate Supreme Court for all the tenants, namely, Ghulam Hussain and others, and Ch. Khurshid Ahmad, learned Advocate Supreme Court, who has appeared for Chief Administrator of Auqaf, Punjab. Sh. Altaf Elahi, Additional Advocate-General, Punjab adopted the arguments advanced by Mr. Hafiz S.A. Rehman and Mr. Muhammad Sayeed Akhtar. With the assistance of the learned counsel, we have gone through the record including the orders passed by the Land Commission Authorities. 2. The dispute in these appeals relates to large areas of land in different villages of District Jhang being Waqf property attached to the shrine of Hazrat Shah Sadiq Nihang. The lands have been in possession and under the management and control of Chief Administrator of Auqaf, Punjab, having been taken over by the Chief Administrator of Auqaf, Punjab under the Provincial Waqf Properties Laws. Ghulam Hussain and others have been tenants in respect of some of the said Waqf properties. ' Under the Martial Law Regulation 115 of 1972, a limit was prescribed on 'land holdings and land in excess of the permissible limit was . To be surrendered to the State. Further land reforms were introduced through Land Reforms Act II of 1977, which further reduced the upper permissible limit of land holdings. Both under MLR 115 as well as Land Reforms Act, 1977, "persons" owning or possessing land beyond permissible limits were required to submit declarations giving details of their holdings and excess land, i,e, over and above the permissible limits, was to vest in the Government. Admittedly the Waqf land attached to the said shrine far exceeded the permissible limits both under MLR 115 as well as Land Reforms Act 1977, yet the Auqaf Department of Punjab did not file any declaration apparently for the reason that these Waqf lands attached to the shrine were considered exempt from operation of the land reforms. Neither the Federal Land Commission nor any other Land Commission Authority under MLR 115 or Land Reforms Act, 1977 issued any notice to the Auqaf Department to file a declaration nor any determination was made or order passed that the Auqaf Department possessed area in excess of the permissible limits or that any excess area was liable for surrender to the Government or vested in the Government. Ghulam Hussain and others continued as tenants of the Auqaf Department. ' However, a dispute arose over the land in question when the tenants, Ghulam Hussain and others, applied to the Land Reforms Authorities for grant of land in their possession under the Land Reforms laws. After hearing counsel appearing for the tenants and Auqaf Department, the Chief Land Commissioner, Punjab passed the following order on 24-9-1987:-- "Ghulam Hussain, etc. Had applied to the D.C./D.L.C., Jhang that Muslim Auqaf Department at District Jhang owned land in excess of 8000 P.I. Units and such land was liable to be resumed and allotted to them being in possession under Land Reforms Act, 1977. However, when the D.L.C., Jhang directed to file the declaration, the Auqaf Department objected. The D.L.C. Has, therefore, referred the matter to the Chief Land Commissioner for clarification with the direction to the parties-- Ghulam Hussain v. Muslim Auqaf to appear before this Court.
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(2) I have heard the view-points of both sides. The petitioners contend that they are the tenants of the Auqaf Department since long and paying rent, but the Department is now trying to eject them and lease out the property to others. Learned counsel for the Auqaf Department alleged that the petitioners do not pay rent to the Department and had also filed a civil suit on the same grounds. (3) I have considered the arguments. The issues are whether the petitioners could be ejected from the land without normal process under MLR 115 and whether the Auqaf Department should file the declaration under Land Reforms Act, 1977. (4) It was contended by the Auqaf Department that the Federal Cabinet had issued directions the pending judicial policy decision about Trust lands, declarations from such affected parties need not be finalized. It was also stated that there was a status quo order issued by the Civil Court. (5) The above factors cannot take away the rights of the tenants, under M.L.R. 115. Consequently, the tenants will not be ejected without due process of law. As regards filing of declaration, this will await the decision of the Federal Government. D.L.C. May be informed accordingly." ' From the above order of the Chief Land Commissioner it would be noticed that a direction was issued that the tenants be not ejected without due process of law, but, as regards filing of declaration by the Auqaf Department, it was observed that it should await decision of the Federal Government. Pursuant to the said order of the Chief Land Commissioner, Punjab Land Commission addressed a letter dated 7-12-1987 to the Deputy Land Commissioner, Jhang, to the effect that filing of declaration under the Land Reforms Act, 1977 in respect of the Waqf land need not be insisted till final decision of the Federal Government in the matter, but, in the meanwhile, the tenants in possession of the waqf land should not be ejected without due process of law. 3. Apparently, the status quo continued. No direction was issued to the Auqaf Department to file any declaration nor any declaration was filed by the Auqaf Department in respect of the Waqaf lands attached to the said shrine. The matter was then taken up by the Federal Land Commission in suo motu revision in exercise of the powers under section 27 of the Land Reforms Act, 1977 on the basis of an application submitted by the tenants on 26-6-1989 to the Chairman, Federal Land Commission. The revision was disposed of by the Federal Land Commission by order dated 14-7- 1993. In the said order, after giving history of the case and referring to the arguments advanced on behalf of the tenants and Auqaf Department, the discussion and decision of the Federal Land Commission is contained in paras. 4, 5 and 6 of the order which are reproduced here:- "The main question for adjudication is whether 'waqf' comes within the definition of 'person' under Land Reforms Act II of 1977 or not. Section 2(7) of the Act reads as follows:-- 'Person' includes a religious, educational or charitable institution, every trust whether public or private, a Hindu undivided family, a company or association or body of individuals, and a cooperative or other society, but do not include a local authority, a university established by law, a joint stock company which is directly or indirectly held or controlled by Federal Government or a Provincial Government or by both or any other body in which the Government holds majority interest." ' Plain reading of the above provision of law shows that although the word 'Wail stands omitted from the section, religious, educational and charitable institution have been included in the definition of 'person'. In a case Qazalbash Waqf v. Chief Land Commissioner, Punjab reported in PLJ 1989 Supreme Court page 657, the Supreme Court (Shariat Appellate Jurisdiction) have held that anyone capable of having a status of dealing with other or entering into contracts capable of enforcement is a juristic person and a 'waqf' satisfies these requirements. (5) From the above discussion, I have no hesitation in holding that 'waqf' comes within the definition of 'person' as defined under section 2(7) of Land Reforms Act H of 1977. The respondent is, therefore, required to file declaration under the Act.
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(6) The Chief Land Commissioner, Punjab in his decision of September 24, 1987, in this case had held that the filing of the declaration by the respondents Auqaf Department, Punjab, should remain suspended till the decision of the Federal Government regarding judicial policy decision as to the resumption of Waqf lands. As the Federal Land Commission has no further intimation of the Federal Government decision in this regard, I see no reason to disagree with the decision of the Chief Land Commissioner, Punjab. Therefore, the auction, if any, of the land in dispute by the respondent would be without lawful authority and must be suspended till the final decision of the Federal Government." 4. The, orders passed by the Chief Land Commissioner, Punjab and Federal Land Commission were challenged by the Auqaf Department in Writ Petition No,7990 of 1993 and, as observed, by the impugned judgment dated 12-10-1993, the writ petition was allowed and the impugned orders of the Chief Land Commissioner, Punjab and Federal Land Commission were set aside. 5. Before we refer to the reasoning of the High Court in allowing the writ petition filed by the Auqaf Department, it is considered appropriate at this stage to refer to the decision of the Shariat Appellate Bench of this Court in the case of Qazalbash Waqf v. Chief Land Commissioner, Punjab (PLD 1990 SC 99). This judgment decided a number of shariat appeals brought before this Court against the judgment of the Federal Shariat Court which, by its majority judgment, had held that the provisions of Land Reform laws were not repugnant to the injunctions of Islam. The Shariat Appellate Bench of this Court allowing the appeals held that main provisions of the Land Reforms laws were against the injunctions of Islam. The operative part of the judgment of the. Shariat Appellate Bench of this Court is reproduced here:-- ' ORDER OF THE COURT "It is unanimously held that the Federal Shariat Court and the Shairat Appellate Bench of the Supreme Court have the jurisdiction and the power under Chapter 3-A of Part VII of the Constitution, to examine the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation) and the Land Reforms Act, 1977 (hereinafter referred to as the Act) and to decide whether or not provisions thereof are repugnant to injunctions of Islam. (2) In accordance with the opinion of the majority of the Judges separately recorded, it is held that the following provisions of the Regulation, the Act and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam:-- (i) Para.2, clause (7) of the Regulation in so far as it includes Islamic Waqf for the purposes of other paras. Of the Regulation which are being held wholly or partly repugnant to Injunctions of Islam. (ii) The whole of paragraphs 7, 8, 9, 10, 13 and 14 and consequentially paragraph 18 of the Regulation. (iii) Paragraphs 15, 16, 19 and 20 in so far as they ignore the rights and obligations, the terms and conditions of the grant licence or lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and orchards and dealing further with them under paragraphs 19 and 20 thereof. (iv) Paragraph 17 of the Regulation in so far as it relates to Waqf and all other institutions which can validly fall within the definition of Islamic Waqf, and consequential to that extent paragraph 21 also. (v) Paragraph 25(1) of the Regulation in so far as it does not give sanctity to the grounds of ejectment available in a valid contract between the landlord and the tenant, entered into in accordance with the injunctions of Islam. (vi) Paragraph 25(3)(d) of the Regulation has already been declared to be repugnant to the Injunctions of Islam in Said Kamar s case (PLD 1986 SC 360). (vii) The whole of sections 3, 4, 5, 6, 7(5), 8, 9, 10 and consequentially the whole of sections 11 to 17 of the Act.
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(viii)The whole of section 60-A of the Punjab Tenancy Act, 1887 in so far as it makes non- occupancy tenancy heritable irrespective of the terms of the contract. (3) The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Regulation is left undermined in these proceedings as the Court feels that proper and full assistance has not been received and another decision of the Federal Shariat Court has come into the field during the interregnum. (4) In accordance with the opinion of the majority of the Judges it is held that the provisions of Paragrah 25(3), clause (a), (b) and (c) of the Regulation are not repugnant to the Injunctions of Islam. (5) Shariat Appeals No,1 of 1981, 3, 8, 9, 10 of 1981 and 1 of 1987 are allowed and Shariat Appeal No,4 of 1981 with the reservation contained in para. 3 above and Shariat Appeal No,21 of 1984 are partly allowed. All the parties shall bear their own costs but the appellant in Shariat Appeal No,1 of 1981 being a Waqf shall be entitled to claim the costs from the respondent the Federal Government. (6) This decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the injunctions of Islam will cease to have effect. (7) The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i,e, on 23-3-1990. ' Order accordingly." 6. Two legal questions of importance came up for determination by the High Court. The first was whether the Chief Administrator of Auqaf, Punjab, who had been declared a body corporate by the Provincial Waqf laws, was covered by the definition of "person" and, therefore, required to file a declaration under the Land Reforms laws. It may be noted that, according to para. 8 of MLR 115 and section 3 of Land Reforms Act, 1977, restrictions on ownership and possession of land by "persons" had been placed and persons owning or possessing land in excess of the permissible limits were required to file declarations on prescribed forms giving details of their holdings under para.12 of MLR 115 and section 7 of the Land Reforms Act, 1977. The other important question for consideration before the High Court was whether the excess land vested in the Government prior to 23-3-1990, the date fixed by the judgment in the case of Qazalbash Waqf, when the provisions contained in the Land Reforms laws declared repugnant to the Injunctions of Islam ceased to have effect. If the excess land had already vested in the Government prior to 23-3-1990, Auqaf Department could not take any benefit of the decision in the case of Qazalbash Waqf, but in case the excess land had not vested in the Government prior to the decision in Qazalbash Waqf case taking effect on 23-3-1990, the disputed lands would no longer be subject to any action under the Land Reforms laws, as on that date, according to the decision in Qazalbash Waqf case, the relevant provisions of the Land Reforms laws ceased to have effect being repugnant to the injunctions of Islam. 7. The word "person" has been defined in para. 2(7) of MLR 115 and section 2(7) of Land Reforms Act, 1977. There is hardly any discussion on the definition "person", with reference to the question whether Chief Administrator of Auqaf was covered by the said expression "person", in the impugned judgment dated 12-10-1993 of the High Court. ' On the second question, the High Court has held that no part of the disputed land vested in the Government prior to 23-3-1990, whereafter the relevant provisions of the Land Reforms laws ceased to have effect and, therefore, the disputed lands remained unaffected by the Land Reforms and remained under the control and management of the Auqaf Department. It was noticed by the High Court that neither the Chief Administrator of Auqaf submitted any declaration as required by the Land Reforms laws nor any declaration was made by the Land Reforms Authorities before 23- 3-1990 in respect of the disputed lands, on which date the relevant provisions of Land Reforms ceased to have any effect having been declared repugnant to the Injunctions of Islam by
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judgment in Qazalbash Waqf case. It was held by the High Court that, till the filing of the declaration under section 6 of the Land Reforms Act, 1977 by a person regarding excess land or determination of this question by the Land Reforms Authorities under section 6(5) of the Act, the land in question did not vest in the Federal Government and continued to be held, possessed and managed by the Chief Administrator of Auqaf and, after 23-3-1990, the Land Reforms Authorities or the Federal Government were not vested any powers to deal with the disputed land or issue any direction regarding orders passed by the Chief Administrator of Auqaf in respect of the said land. The arguments raised by the Advocate-General that, on the promulgation of the Land Reforms Act, 1977, the excess land held by any person automatically vested in the Federal Government, was not accepted by the High Court. Reference was made to sections 3, 6 and 9 of the Act 1977 in support of the view taken. Para. 10 of the impugned judgment of the High Court is reproduced here:-- "We have held in Writ Petition No,4898 of 1989 that the self-executory provisions of the Act regarding vesting of land were to become operative either on submission of declaration which would be acknowledgement of the fact that the land possessed or owned by a person was in excess of permissible limits which itself would amount to determination by the authorities on the basis of said admission that he was possessing land in excess or on determination to be made by the authorities under section 6(5) and before that. If such a declaration or determination had been made before 23-3-1990 by virtue of which the excess land had vested in the Federal Government before the said date, the Land Reforms Authorities could get completed the other formalities regarding selection of land by such person for surrendering it to the Government." 8. As observed in para. 6 hereinabove, two legal questions of importance were argued before the High Court, namely, whether the Chief Administrator of Auqaf was a "person" as defined in the Land Reforms laws and secondly when did the excess land held or possessed by any "person' vested in the Government. Hafiz S.A. Rehman, learned Advocate Supreme Court for the appellant in Civil Appeal No,25 of 1997 submitted that all those who were covered by the definition of "person' contained in para. 2(7) of MLR 115 and later under section 2(7) of Land Reforms Act, 1977, were required to file declarations showing the excess lands. It was pointed out that though, in the definition of "person", the word 'trust" had been used and not "Waqf", in para 17 of MLR 115 reference has been specifically made to "Waqf" also and same is the position in section 17 of Act 1977. Reliance was placed on the judgment of this Court in the case of Tanvir Ahmed Siddiky v. Province of East Pakistan (PLD 1968 SC 185 at 207). Mr. Sayeed Akhtar, learned Advocate Supreme Court for the appellant in Civil Appeal No,24 of 1995 also argued supporting the proposition advanced by Hafiz S.A. Rehman. As observed, Mr. Sh. Altaf Elahi, Additional Advocate-General, Punjab, adopted the arguments of the two counsel. Ch. Khurshid Ahmad, learned Advocate Supreme Court appearing for the Chief Administrator of Auqaf, Punjab argued that his client was a corporate sole and referred to the Punjab Waqf properties laws. He referred to the distinction between trust and waqf and argued that the Land Reforms laws did not extend to public Waqf where the properties vested in Allah Almighty and relied upon the following judgments for making out a distinction between trust and Waqf:-- (i) Gholam Hosain Sherazee v. Province of East Pakistan (PLD 1967 Dacca 1). (ii) Saira v. Settlement Authorities (PLD 1973 Lahore 327). (iii) Muhammad Ameen v. Islamic Republic of Pakistan (PLD 1981 FSC 23). (iv) Administrator-General of Auqaf v. Federal Land Commission (1985 CLC 700). (v) Mansoor Ahmad v. Chief Administrator of Auqaf (1993 M LD 2529). 9. On the first question, learned counsel for the parties had argued at length but a reference to the judgment in the case of Qazalbash Waqf case (PLD 1990 SC 99) shows that this question has already been considered and decided. Reference may be made to page 148 of the report (opinion of Shafiur Rahman, J.) where it was held as follows:--
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"Coming now to the various provisions of the Regulations and its repugnancy to the Injunctions of Islam, the first objection is to the definition of person contained in para. 2, clause (7) of the Regulation. It defines person so as to include a religious, educational or charitable institution every trust whether public or private. Para. 17 of the Regulation extends the ceiling and the surrender provisions of the Regulation to every religious, charitable and educational society or institution and to every trust or Waqf whether public or private. It will be incorrect to say that Waqf cannot be classified as a juristic entity or juristic person. Ownership of property is not the only test for a juristic entity. Anyone capable of having a status, of dealing with others, of entering into contracts, capable of enforcement, is a juristic person. A Waqf satisfies these requirements." We have not been pursuaded to take a different view and we confirm the earlier view of this Court taken in Qazalbash Waqf case that the definition of "person" contained in the Regulation includes Waqf also. 10. On the second question, it was argued by Hafiz S.A. Rehman that, immediately on promulgation of MLR 115 on 11-3-1972, the excess lands under that Regulation vested in the Government despite the fact that no declaration had been filed by the Chief Administrator of Auqaf, Punjab in respect of its holding neither any determination had been made by Land Reforms Authorities as to how much land was the excess land i,e, over and above the permissible limit. Similarly, it was argued that on the enactment of Land Reforms Act, 1977 on 19-1-1977, the excess lands held by the Chief Administrator of Auqaf,…
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