Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mian ABDUL MAJID AND 7 Other VS Respondent: THE CHIEF ADMINISTRATOR OF AUQAF, JUDGMENT
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title:Mian ABDUL MAJID AND 7 Other vs THE CHIEF ADMINISTRATOR OF AUQAF,
JUDGMENT
Reported As: PLD 1972 Lahore 66 Result: A. Judgment JUDGMENT The Chief Administrator of Auqaf by means of a Notification No. 4025-Auqaf-60, dated 16-4-1960, published in the Extra--ordinary issue of the Gazette of West Pakistan of the same date at pages 1719-20 and issued under section 6 of the West Pakistan Waqf Properties Ordinance XXI of 1959 (hereinafter called the Ordinance), took over and assumed the administration, control, management and maintenance of the Waqf Properties attached to the Darbar of Hazrat Imam Sahib of Sialkot City as described in the Schedule annexed thereto. The Schedule contained 34 items of properties, the details of which are not necessary to be mentioned here except that Item No. 1 consisted of "shrine of Hazrat Imam Sahib Sialkot City bearing Municipal Property No. 7/27." Towards the end of that Notification was an order of the Chief Administrator of Auqaf, West Pakistan, bearing No. 3(37)-Auqaf-60, whereby he appointed the City Magistrate, Sialkot as a Manager for the said properties giving him authority to (a) manage and maintain the Waqf Properties attached to the said shrine and (b) maintain the services and secure the performance of ceremonies at the said shrine and mosque in accordance with the orders and directions issued by him from time to tine. Against the aforesaid Notification, two applications were filed in the Court of the District Judge, Sialkot, under section 7 of the Ordinance. One was Case No. 13/1960 filed by Abdul Majid and others, and the other was Case No. 14/1960 filed by Muhammad Ibrahim and others. The petitioners impleaded two persons as defendants; defendant No. 1 being the Chief Administrator of Auqaf and defendant No. 2 was the City Klagistrate, Sialkot. It was averred in the petitions that the local Manager had, in pursuance of the aforesaid Notification, begun to collect offerings at the shrine notwithstanding the fact that the same had not been included in the
---
## Page 2
Notification. It was further pleaded that these offerings were not Waqf but were the personal properties of the petitioners and others who had been deriving title thereto and interest therein by purchase and devolution from generation-to-generation by inheritance like their other personal properties. The petition went on to say that the petitioners and their predecessors-in-interest had been exercising right of ownership over the offerings and in several contested cases the offerings had been held as not pertaining to tine shrine but belonging to the petitioners in specific shares, The petitioners in Case No. 13/1960 claimed by 37- shares out of the total 192 shares of the offerings. The petitioners in Case No. 14/1960, claimed 48/192 shares. It is pertinent to mention that during the pendency of these cases the Chief Administrator of Auqaf realised that he had omitted to mention the offerings in the Schedule of the properties taken over by him. Consequently, he issued another Notification bearing No. 9(13)-Auqaf-60 dated 23-5-1961, published in the Extraordinary Issue of the Gazette of West Pakistan dated 24-5-1961, at page 1397. This Notification reads as follows:- "OFFICE OF THE CHIEF ADMINISTRATOR OF AUQAF, WEST PAKISTAN NOTIFICATION No. 9(13)-Auqaf-60-I, A. H. Quraishi, C. S. P., Chief Adminis--trator of Auqaf, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance 1959, make the following amendment in Notification No. 4025-Auqaf-60, dated the 16th April 1960, namely :-- AMENDMENT After item No. 34 of the Schedule appended to the said notification, the following new item shall be added:- "35. Income from the box placed at the said shrine and offerings and subscriptions made to the shrine." 2. The above amendment will be deemed to be operative, with effect from the 16th April 1960. West Pakistan." After the issuance of the above Notification, the learned District Judge struck the following final issues in Case No. 13 of 1960:- (1) Whether the offerings of the shrine of Hazrat Imam Sahib are Waqf property within the meaning of Ordinance XXI of 1 459? O. P. On respondent) (Objected to). (2) Whether the offerings have not been included in the Notification, dated 16-4-1960? (O. P. On the petitioners). (3) What is the effect of not specifically mentioning the offerings of the shrine in the Schedule? (O. P. On the parties:) (3-A) How does the Notification of 23-5-1961, affect the offerings at the shrine of Hazrat Imam Sahib and from what date? (O. P. R.) (3-B) Is the Notification of 23-5-1961 illegal and ultra vires? (O. P. P.). (4) ,Relief, 2. In Case No. 14, the following (amended) issues were similarly framed:- (1) Whether the offerings at the shrine of Hazrat Imam Sahib A are not Waqf property within the meaning of West Pakistan Waqf Properties Ordinance, 1959 in view of Explanation 4 to Clause (d) of section 2 thereof (O. P. P.) (2) Whether the offerings have been included in the Notification, dated 16-4-1960, and whether the inclusion thereof was not necessary and Administrator can take over and assume :he administration, control and management thereof? (O. P. R.) (3) Have the petitioners any interest in or right to the offerings at the shrine and to what extent? (3-A) How does the Notification of 23-5-61 affect the offerings at the shrine of Hazrat Imam Sahib and from what date? (O. P. R.) (3-B) Is the Notification of 23-5-1961, illegal and ultra vires ? (O. P. P.)
---
## Page 3
(4) Whether the offerings at the shrine of Hazrat Imam Sahib are in the nature of reward, remuneration or presents to the petitioners or other persons interested therein for the services which they rendered and cannot therefore, be considered to be Waqf property (O. P. P.) (5) Relief. 3. In Case No. 13 of 1960, Abdul Majid petitioner appeared as P. W. 1 and tendered four documents Exhs. P. 1 to P. 4. From the side of the respondent, Hafiz Muhammad Amin Imami, Chairman of the Managing Committee was produced as R. W.I ,and Khan Bahadur Assistant Manager of the dargah was produced as R. W. 2. The respondent produced Exh. R. 1 which was a copy of the Gazette containing the subsequent Notification and Exh. R. W. 2/1 which was an account of income at the shrine for the period mentioned therein. 4. In Case No. 14 of 1960, Muhammad Ibrahim one of the petitioners appeared as his own witness and made a statement as P. W. 1. The petitioners therein produced a large number of documents ranging from Exhs. P. 1 to P. 13 which will be mentioned in the later part of this judgment. From the side of the respondent, Khan Bahadur appeared as R. W. 1 and 41afiz Muhammad Amin Imami as R. W.2. The respondent produced Exh. R. W. 1/1, which was a copy of the account of the income of the shrine. 5. After attending to the relevant evidence in the case, the learned District Judge, keeping in view the issues framed in Case No. 14 of 1960, which were more comprehensive, held:- (1) That offerings at the shrine did come within the definition of "Waqf" as contained in Explanation 4 to clause (d) of section 2 of the Ordinance. (2) But as they were not mentioned in the Schedule of the properties taken over by means of Notification, dated 16-4-1960, therefore the Administrator of Auqaf could not have taken over the same. (3) That it was established on record that prior to the taking over of the shrine, the petitioners had been sharing the offerings and that the same belonged to them according to the shares mentioned in their respective petitions. However, subsequent to the inclusion of the offerings in the later Notification of the Chief Administration of Auqaf, the said offerings had been taken over by him and the petitioners could get no share in the same. (3-A) That the Notification dated 23-5-1961, effected the offerings onward from that date and offerings prior thereto were not covered by any of the Notifications. (3-B) That the Notification, dated 23-5-1961, was not illegal in any manner except to the extent of its retrospective operation. (4) The offerings at the shrine were appropriated by the petitioners as a reward for services rendered by them. There was difference between offerings at the shrine and private offerings to the petitioners. The learned District Judge held that private offerings by the petitioners, if any, were not to be affected. 6. After recording the above finding, the learned District Judge held that the petitioners were entitled to share the offerings prior to the notification dated 23-5-1961, to the extent of the shares mentioned in their respective petitions and that the said offerings were liable to be given to the petitioners for which the Chief' Administrator of Auqaf was liable to render accounts. As regards the offerings subsequent to the date hereinbefore mentioned, he granted no relief to the petitioners. Both the cases were disposed of by the learned District Judge by means of one and the same judgment, dated 26-2-1962. Against the aforesaid judgment and order of the learned District Judge, three appeals have been filed in this Court. F. A. O. No. 47/62 has been filed by Abdul Majid and others who were petitioners in Case No. 13 of 1960 in the trial Court. F. A. O. No. 53 of 1962 has been filed by the Chief Administrator of Auqaf against the petitioners in Case No. 14/1960 and F. A. O. No. 54 of 1962 has been filed by the Chief Administrator of Auqaf against the petitioners in Case No. 13/1960 in the Court below. This judgment will dispose of the aforesaid three appeals.
---
## Page 4
7. Arguing the appeals of the Auqaf Department, Mr. Aamar Raza learned Advocate referred to the definition of "Waqf property" as contained in section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959, which was the relevant statute at the time when the properties under examination were taken over. This definition, at tile relevant time, read as follows:- "Section 2(d).-`Waqf Property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating 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 recognised 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 property. Explanation 2.-Property allotted in lieu or in exchange of Waqf property left in India shall be deemed to be Waqf Property. Explanation 3.-Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property or from subscriptions raised for any purpose recognized by Islam as religious, pious or charitable shall be deemed to be Waqf property. Explanation 4.-The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property. Explanation 5.-Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes." To this definition was added one more Explanation in the form of Explanation No. 6, when the Ordinance was recast in the form of West Pakistan Waqf Properties Ordinance XXVIII of 1961 with effect from 23-i0-1961. This Explanation reads as follows:- "Explanation 6.-Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Durgah, or other shrine shall be deemed to be Waqf property." Since this Explanation came into force on the 23rd of October 1961, and was not in existence when the two impugned Notifications were issued, therefore, the cases shall have to be decided with reference to the law which existed at the time of the impugned Notification so as to see what or what was not taken over by the Chief Administrator of Auqaf. The newly added Explanation has been mentioned above simply to complete the historical survey of the Statutes. 8. Keeping the definition, reproduced above in view, learned counsel submitted that when a shrine was taken over by the Chief Administrator of Auqaf then it would be considered to have been taken over with all its incidents and appurtenances with the result that the taking over of the shrine should be assumed automatically to include the taking over of "income from the boxes placed at a shrine and offerings or subscriptions for charitable purposes, which, according to Explanation No. 4 (the Statute says) "shall be deemed to be Waqf property". In this way, it is argued that the second Notification, dated 24-5-1961, issued by the Chief Administrator of Auqaf was a simple duplication which did not materially affect the situation, inasmuch as, in the eye of law, the income from the boxes placed at the shrine should be considered to be already included in the earlier Notification. The point though prima facie attractive, but on closer security does not appear to be correct for the following reasons :- (a) The taking over section in the Statute is section 6 which reads as follows :- "Section 6. Chief Administrator may take over Waqf properly by notification.-Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a waqf property."
---
## Page 5
In the new Ordinance i.e., West Pakistan Waqf Properties Ordinance XXVIII of 1961, there is added an Explanation to the above section which reads as follows :- "Explanation.--For the purposes of this section, 'control' and 'management include control over the performance and management of religious, spiritual, cultural, and other services and ceremonies at or in a waqf property." Comparing section 6 with the definition of "waqf property" as given in section 2(d), it appears as to what property is waqf is to be seen with reference to the definition clause, but which out of the said property has been taken over is to be seen from the actual notification issued by the Chief Administrator of Auqaf. The definition along with its Explanations makes the various types of properties as waqf properties but if the Notification issued is only about one kind of property it cannot be held to include another kind of property also. For each property taken over there has to be an express Notification and the scheme of the Ordinance does not contemplate any implied taking over or taking over by a process other than that of a Notification. If the argument of the learned counsel for the Auqaf Department is accepted that will tantamount to making inroads in the Statute which cannot be allowed. The point can be well-understood by keeping Explanations 2 and 3 in the forefront. If for example any property can be considered as a waqf property within the scope of the said two Explanations, then mere taking over of some property (in lien whereof or from the sale proceeds of which) a fresh property has been acquired, that will not automatically include the taking over of the so freshly acquired property and that job will have to be done or performed by means of an express Notification. If this can be true of Explanations 2 and 3, the same should be true of Explanation 4 as well. (b) Section 6 says that the Chief Administrator of Auqaf may take over and assume the administration, control, manage--ment and maintenance of a Waqf property. The word "a" read with the word "may" suggests that it is within the discretion of the Chief Administrator of Auqaf to take over or not to take over any Waqf property. If, therefore, he takes over one Waqf property it cannot be assumed that he has taken over another kind of property also. The explanations attached to the definition of Waqf property are intended to enlarge the scope of Waqf property, but they are for the purpose of guiding the Chief Administrator of Auqaf that such and such property can also fall within his sphere of taking over. They are not intended to entrap the public at large that when there is no Notification about any express property, even then the Chief Administrator of Auqaf can interfere with the same in the garb of or by relying on "Explanations". (c) Regarding income from boxes placed at a shrine there has been a good deal of controversy as to whether they constituted waqf or not and whether in spite of their being "Waqaf", the Khadims or persons serving or attached with the shrine could share in them. The broad principle that has been accepted in this respect is that each shrine or institution is to be regulated by its own practices, conventions and custom. I need not go into the history of the relevant case-law and for my purpose it is sufficient to hold that whatever the earlier position, now by Explanation 4, "the income from boxes placed at a shrine and offerings and subscriptions for charitable purposes shall also be deemed to be Waqf property." Obviously, this law is prospective and in a given case will be applicable for the purpose of taking a property over actually from the date when the Notification expressly stating so is issued. If the income from boxes under the earlier law could not automatically be considered as belonging to or forming part of a shrine and each case depended on its own facts, then even making it a "Waqf" by Explanation 4, could not mean that it went with the shrine and possibilities cannot be ruled out of situations where only one of them is taken over and not the other. All that the Explanation 4 states is that such and such income shall be a "Waqf property" but not that it shall form part of the shrine or be included in that. If the Legislature had intended to create any such fiction it could have so said. In the absence of any such indication, it is
---
## Page 6
not possible to read into the statute things and results which have not been manifested by the Legislature. (d) In the first notification, there were mentioned 34 items of property. In the second Notification, "income from the box placed at the said shrine and offerings and subscriptions made to the shrine", have been added as a 35th item in the earlier list. This process also shows that the second was a separate and independent action of taking over. Obviously, such an action could be operative from the date of its own notification and not with any retrospective effect. (e) When Legislature desires a thing to be done in a particular manner then that should be done in that and that manner alone. In the Statutes, under consideration, a Waqf property can be taken over by and only by a Notification. If a property does not figure in any given notification, then I am not prepared to hold that it could still be considered as having been taken over. The Notification must be clear and un-ambiguous. From such a Notification flows the further authority of the Chief Administrator of Auqaf to deal with the property taken over and it gives a right to persons aggrieved to challenge the actions of the said officer. The view which I am taking will not mislead anybody and will be beneficial for all concerned as any other Interpretation will defeat the scheme of the Statutes concerned. (f) The definition of "Waqf property" (already reproduced above) shows that it contemplates such property which is permanently dedicated by persons professing Islam for any purposes recognised by Islam as religious, pious or charitable. A question arises if in the boxes placed at any shrine, Non---Muslims also make contributions then what about them? Such donations and contributions not having been made by a Muslim will not fall within the main definition of "Waqf property" and even the Explanations will not come to their rescue. The same may be the position of any similar offerings or subscriptions. In order to alert persons, whose rights are to be affected by an act of taking over, it is, therefore, essential that when the Chief Administrator of Auqaf intends taking over these items as well (treating them as a Waqf property within the meaning of Explanation 4), he must formally do so by a regular and proper Notification. 9. The next point argued by Mr. Aamar Raza was that Petition No. 13/60, pertaining to Appeal No. 54/60, filed by the respondents concerned, under section 7 of the Ordinance, was time-barred. He submitted that the period of limitation for filing such petitions was thirty days from the publication of the Notification of taking over. Basing his argument on his previous premises, he submitted that since the income from boxes and offerings should also be considered to have been taken over with effect from the date of the publication of the first Notification, dated 16-4-1960, therefore, the petition, which was filed in this case on 17-5-1960. Was time-barred by one day. The contention cannot be accepted ; because I have already held that the first Notification, dated 16-4-60, did not take over the income from boxes etc. The said items were taken over in the form of Item No. 35 which was added by means of the second notification to the list of the properties already taken over and, as such, the petition under discussion, could not be said to suffer from any bar of limitation. When confronted with this situation, learned counsel argued that in the second Notification of 23/24-5-1961, the Chief Administrator of Auqaf had described that Item No. 35 should be deemed to have been added into the previous Notification retrospectively with effect from 16-4- 1960. In other words, since the addition of Item No. 35 was directed to have a retrospective effect, therefore, it should be considered to have been taken over with effect from 16-4-60, and, as such, the period of limitation for challenging Item No. 35 should start from the retrospective date. I am afraid, the contention cannot be seriously attended to for various reasons. Retrospectively is the work of the Legislature and the Chief Administrator of Auqaf has no legislative power so as to give his notification a retrospective effect. The Chief Administrator of Auqaf has no jurisdiction to wipe off, destroy or curtail the statutory period of thirty days contained in section 7 of the Ordinance by saying that his Notification shall have a retrospective effect. Moreover, the period of thirty days, as
---
## Page 7
laid down in section 7 of the Ordinance, runs from the date of the publication of the Notification and not from the date from which the Chief Administrator of Auqaf directs that his Notification should take effect. Mr. Aamar Raza has not shown as to when the Notification dated 16-4-1960 was actually publi--shed. He referred to the Gazette, dated 16-4-1960 and submitted that the date of the Gazette is the date of the publication of the Notification. Ordinarily, this may be so, but in cases of the present type and other similar situations where valuable rights are affected or penalties or obligations accrue, it is for the party trying to take away the rights or liabilities placed on others to prove as a matter of fact as to when did the publication actually take place because possibility cannot be ruled out that though a Gazette is given a particular date or is to be shown to be of a particular date, its actual publication as a matter of fact, may not have taken place on the same date or may have taken place a day or two or some period later. Such a possibility was taken note of in Balkrishna Anant Hirlekar v. Emperor (AIR 1931 Bom. 132). In that case, the local Government had a power under the relevant law to declare any association to be unlawful and after such declaration if any person remained a member of the said association, then he was liable to be convicted. A Gazette notification declaring an association as illegal was issued on 14th of October and thereafter during some part of the same day certain persons were prosecuted for having remained members of the said association. A question arose that since the prohibition to remain a member was to come into effect from the date of the publication of the Notification, at what particular time or date the notification was published 7 It was held that Govern--ment is not under any obligation to publish a Gazette of a particular date on that very date and that they, are quite at liberty to delay publication. It was further observed, whether they did or did not publish it on the 14th of October, was a matter which should have been proved by evidence and since there was no evidence whatsoever on the subject, the point could not be found in…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.