' AFTAB HUSSAIN, J.-This order will dispose of L. P. As. Nos. 253/70, 254/70 and 255/70. All these appeals arise out of a consolidated order passed by a learned Single Judge on the 21st of September, 1970 in F. A.
0. No, 47 of 1962.
2. On 16-4-1960 Notification No, 4025-Auqaf-60 of even date was published in the Extraordinary issue of the Gazette of West Pakistan by which in exercise of the powers conferred on the Chief Administrator of Auqaf by section 6 of the West Pakistan Waqf Properties Ordinance, he 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." Thirty-four items of properties were described in the Schedule. The collection from the box kept in the shrine was not included in the notification. Despite this flaw in the notification which appears to be due to some clerical error, the Chief Administrator of Auqaf took into possession and control the collection from the box also. The respondents who were `majawars' of the shrine felt aggrieved against this and filed two applications (one by Abdul Majid respondent and the other by Mohammad Ibrahim, etc.) purporting to be under section 7 of the Ordinance against the recovery of the collection from the box by the Chief Administrator of Auqaf despite the fact that it was not taken over by the above notification. The petition of Mohammad Ibrahim was filed on 16-5-1960 within 30 days of the issuance of the notification while the petition of Abdul Majid was filed on 17-5- 1960.
3. By another Notification No, 9(13)-Auqaf-60 dated 23-5-1961 published in the Gazette, Extraordinary Issue, dated 24-5-1961, the Chief Administrator of Auqaf included income from the box placed at the said shrine and offerings and subscriptions made to the shrine as Item No,
35. He further clarified that this inclusion will be deemed to have a retrospective effect and will be effective from 16-4-1960. The learned District Judge held on 26-2-1962 that item No, 35 was included in the definition of waqf properties and the said respondents did not have any right to it after the second notification dated 23-5-1961. He, however, held that the income from the box placed at the said shrine and offerings and subscriptions made to the shrine were not taken over as waqf properties by the Chief Administrator Auqaf prior to 24-5-1961.
4. Three appeals were filed against this order, two by the Chief Administrator, Auqaf against the order treated to have been passed in each of the two cases and the third by the present respondents. The appeals by the Chief Administrator Auqaf were dismissed and the appeal of the respondents (F. A.
0. No, 47/62) was allowed and it was held that they were entitled to share in the said income from the box etc. Upto the issuance of the second notification to the extent of the shares claimed by them. They were also held entitled to a share in the said income even after the take-over by the Chief Administrator of Auqaf but subject to the condition that the latter could make changes in the shares keeping in view the changes in the circumstances. It is for this reason that these three appeals have been filed by the Chief Administrator of Auqaf.
5. The learned counsel for the appellant challenged the order of the District Judge as maintained by the High Court and also the finding given by the High Court in regard to the right of the respondents to share the income from the box etc. In accordance with the share to be specified keeping in view the changed circumstances by the Chief Administrator Auqaf.
6. Learned counsel for the appellant raised two points in regard to the finding given by learned District Judge and maintained by the High Court. He argued firstly that the application of Abdul Majid was barred by time and as such no relief could be given to him. He further submitted that these two notifications could not be read as two different orders of take-over of the property since it is clear from the first notification that the entire waqf property pertaining to the shrine had been taken over and this would include the cash collection in the box, etc. He further challenged the finding of the High Court in regard to the rights of the respondents to share the income in future also.
7. The learned counsel for the respondents on the other hand argued that the appellant had taken over the administration and management of specific properties by the first notification and item No, 35 was not one of those properties. As such the Chief Administrator Auqaf had no right to appropriate the collection from the box. He further submitted that none of the petitions was barred by time since the cause of action under section 7 of the Ordinance accrued to the respondents only after the issuance of the second notification. As such the two petitions could at most be held to be premature which matured on the issuance of the second notification. On the third point the learned counsel for the respondents relied upon section 13 of the Ordinance as also Sh. Inayat Ullah and others v. M. A. Khan and others (1). He submitted that it is an established proposition that the `Inajawars' can perform the rites and `rasoomats' of the waqf and if they can do so, they would also be entitled on account of user to the income of the waqf property under section 13.
8. The first two points raised by the learned counsel for the appellant are clearly without force. We agree with the argument of the learned counsel for the respondents that by the first notification, the administration and (1) PLD 1964 SC 126 management of only specific properties detailed in the notification was taken over by the Chief Administrator, Auqaf. The income from the box placed at the said shrine and offering and subscriptions made to the shrine were not included in that notification. This item was included in it later by the correction Notification No, 9(13)-Auqaf-60 dated 23-5-1961, which was published in the Extraordinary issue of the Gazette of West Pakistan on the 24th of May, 1961. In these circumstances the property pertaining to Item No, 35 could not be taken over by the Chief Administrator Auqaf prior to 23-5-1961 nor could the second notification operate retrospectively. The finding of the learned District Judge as maintained by the learned Single Judge to this extent is unexceptionable.
9. We also agree with the argument of the learned counsel for the respondents that in the circumstances of this case the petition of Abdul Majid could not be dismissed as barred by time. It is agreed that this petition was filed on the 31st day if the period of limitation is counted from 16-4- 1960 when the first notification was published in the Gazette but we have already held that notification that did not pertain to the taking over of the administration and management of item No,
35. In view of the this at most the two petitions were premature and were in the nature of the complaint to the District Judge that notwithstanding the fact that this property was never taken over, the Chief Administrator, Auqaf deprived them of the enjoyment of that property. After the second notification these premature applications matured. The argument in regard to the bar of limitation of the petition of Abdul Majid is also repelled.
10. The appellant has, however, a good case in so far as the third point is concerned. There have been several cases, at least two cases of the Supreme Court, since this case was decided by the learned Single Judge, which are very helpful for arriving at a conclusion whether the respondents are entitled to any share from the income in Item No,
35. The first case Pir Rashidud Daula and 3 others v. The Chief Administrator of Auqaf (1) is about the shrine of Hazrat Shah Daula Sahib of Gujrat. The other case is Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf West Pakistan (2) pertaining to the shrine of Hazrat Data Ganj Bakhsh Sahib. In the former case the institution of `mujawar' and the offerings made to the shrine or to the mujawar and the rights of the mujawar in it were considered. It was held that all offerings at the shrine were throughout treated as the personal and heritable income of the respective waridars. They acquired other properties out of this income and dealt with these properties as their personal properties. Whatever might have been the motive which inspired these offerings this much is clear that they were never treated waqf. The consistent practice in this institution was to treat as the personal property of the waridar in whose turn they came to be made. The evidence shows that no portion of it was used for the annual `urs' or even for repairs. The waridars even sold their waris. They dealt with the properties acquired out of this income as their personal properties. This is absolutely inconsistent with the essential concept of any waqf, whether public or private. According to the trend of decisions in this sub-continent, if we are to proceed on the basis of the practice prevailing at an institution then we must hold that no part of the income from offerings received at this particular shrine was waqf. In this view of the matter no question also arises of these being private or mixed waifs within the meaning of section 3 of the Mussalman Waqf Validating Act, 1913, which have been excluded from the definition of a waqf under the impugned Ordinances".
(1) PLD 1971 SC 401 (2) PLD 1971 SC 376
11. Having made these observations, their Lordships held that these offerings could be turned into waqfs by statutory provision as has been done by Explanation 4 appended to section 2(d) of the West Pakistan Waqf Properties Ordinance and the Legislature had undoubtedly power to do so.
From the date of the coming into force of the Ordinance, therefore, this income has become waqf property which could be taken over by the Administrator. It may be stated that their Lordships did not pass any order giving any share out of this income to the `waridar or the mujawars.
12. In the case of Hazrat Data Ganj Bakhsh Sahib it was held as follows on the basis of Pir Rashidud Daula's case:- "(1) That the validity of the Ordinance is not now open to challenge;
(2) that the notifications have been validated by the West Pakistan Waqf Properties Ordinance, 1961;
(3) that the income from offerings in boxes kept at the shrine could be validly made a waqf under the Muhammadan Law and were, in any event, validly made a waqf under Explanation 4 to section 2 of the Ordinance of 1959 as validated by the Ordinance of 1961. They became waqf from the date of the notifications;
(4) that since according to the practice prevailing in this shrine from time immemorial the pre- notification income from the other immovable properties and offerings in boxes kept at the shrine were appropriated as the personal property of the mujawaran, they should be treated as such;
(5) that the mujawaran also acquired the right by immemorial user of performing the rasumaats and other religious ceremonies connected with this shrine provided that the performance of such functions does not amount to misuse of the waqf properties; and
(6) that under the Waqf Properties Ordinance the Chief Administrator of Auqafs had no right to deprive them of this privilege of performing such rasumaats and other religious ceremonies, although he had the discretion to contribute or not to contribute towards the expenses thereof and the right to regulate the same."
13. These two judgments are a complete answer to the arguments of the learned counsel for the respondents. Section 13 which has been relied upon by the learned counsel for the respondents and on the basis of which a finding was given in favour of the respondents by the learned Single Judge is not at all helpful. It provides that "subject to the provisions of the Ordinance a waqf property shall be used for the purpose for which it was dedicated or has been used or for any purpose recognized by Islam as religious, pious or charitable, as the Chief Administrator may deem fit."
14. From this provision it is clear that it refers only to the user of the property which has always been treated as waqf property and not property which, as in the present case, has been claimed and treated by the respondents and other mujawars of the shrine as their personal property, as heritable as well as alienable. As observed in the case of Pir Rashidud Daula this property became waqf after the statutory inclusion of this item of property in the definition of waqf property in section 2(d), Explanation 4 of the Ordinance. From this it necessarily follows that the property cannot be taken to have been used as a waqf property before this date. The learned counsel for the respondents has rested his case upon the words (in section 13) "shall be used for the purpose for which has been used," but if there was no user of this property as waqf property, the respondents cannot rely upon the same. The respondents have placed a number of documents, Exhs. P. 1 to P. 13, on the record, from which is very clear that they have always claimed this income from the box and other offerings to be their personal property and never any waqf property. The respondents cannot be allowed to claim any share on the basis of such user.
15. This provision is also not helpful otherwise even if this is assumed to be waqf property prior to its statutory inclusion in the above notification. It is clear that section 13 would apply only to a property which has been treated as waqf and which has been used as such. But in the present case if the property has not been used as waqf property by the respondents, they cannot claim any benefit of the user of that property under section 13 since that user has never been a user of waqf property.
On the other hand, in the words of their Lordships of the Supreme Court in Pir Rashidud Daula's case such user is absolutely inconsistent with the essential concept of any waqf, whether public or private.
16. Even otherwise section 13 would apply to a user of a waqf property and not its misuser.
17. Moreover no such declaration about the interest of the petitioner in waqf property can be granted when the petitioners' case was based only on this property being their personal property and not upon its being waqf property. The petition to this effect was liable to be dismissed even it was found that item No, 35 was waqf property from time immemorial.
18. Learned counsel for the respondents submitted that the respondents were entitled to the offerings made to them in the khanqah if they are entitled to perform the rasumaats in that place.
This argument is without force. The respondents could not claim any offering made to the khanqah. They can at most lay claim only to the offerings made to them in their personal capacity.
But this question has now been resolved by the West Pakistan Waqf Properties (Punjab Amendment) Ordinance, 1971 by which the following proviso has been added:- "Provided that notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority, or in any proceeding pending before any Court or other authority, no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles referred to in Explanation 4 to clause (d) of section 2, or the services or ceremonies (rasoomat) mentioned in section 6."
' Consequently neither any declaration can be granted now regarding share in respect of income, offerings, subscriptions or collection in the box nor about the right of the mujawars to perform services or ceremonies (rasoomat).
19. The appeals are, therefore, allowed with costs, the order of the learned Single Judge is set aside and the order of the learned District Judge is maintained.