' TARIQ JAVAID, J.---The petitioner has assailed the lease of land, which is a waqf property, managed and controlled by the respondent. No, 1 .
2. Learned counsel for the petitioner maintained that said land was bequeathed by the forefathers of the petitioners for Khankah Makhdoom Abdur Rashid Haqqani for charitable and religious purposes. It is further maintained that the demised land/property was being used as a playground for the School established on said property and that the donor had given the land to a religious trust which was for the benefit of Khankah. Subsequently it was put to the use of a School which was also a charitable purpose for the benefit of the inhabitants of the locality and the students. The purpose of the School being for general good was never objected by the beneficiaries of the trust.
3. The precise grievance of the petitioners is that a piece of land donated by the donor for religious trust was being leased out by the respondent No,1, collusively for the establishment of a petrol pump, to be installed by the lessee, thus, a piece of land, which is a religious trust was being put to a commercial use for the benefit of the lessee, which was not the object envisaged by the donor at the time of donation to the Khankah. It is maintained that until 1950 the land was in possession and control of the trustees of the Khankah. However, in 1950, the then District Council establish a High School on almost 38 Kanals, the land in dispute was proposed to be used for playground.
Subsequently, in 1961 the whole of the land along with Khankah was taken over by the Auqaf Department, the respondent No,
1. The School and the playground in Khasra No,74/2 and 9 always remained in the use of the school. It is alleged that the respondent No,4, in derogation of the purpose of waqf, invited proposals for leasing out 4 Kanals of the land from Khasra No,74.9-2 for construction of a petrol pump. It is argued that the respondents were not authorized to auction the land. It is also argued that the chunk of four Kanals has been carved out in a way that remaining land has lost its utility as a playground. The site plan is annexed with the petition.
4. Apart from the petitioners the inhabitants of the locality also protested the use of trust land for commercial purposes, as it was the only playground available to the students as well as residents of locality because a trust property was being put to commercial use for the benefit of the lessee who is said to be a former M.P.A. It is also argued that 4 Kanals of very valuable property has been, with mala fide intentions, leased out at a rent of Rs,4,000 to an influential politician. The main thrust of the arguments of the learned counsel for the petitioners was that though a trust property donated for religious purpose cannot be used for any other purpose yet its use for school and playground, still being a purpose for the benefit of general public is well justified, but its commercial use for the profitable business of an influential politician was illegal on the face of it.
5. The learned counsel appearing on behalf of the respondents did not factually controvert the petition. It is an admitted position that the disputed land is trust property, portion of a playground being used by the School children. The only exception alleged is that the proposed site for the petrol pump is outside the boundary wall of the playground. However, it is maintained that the proceeds of the lease money were to be used by the respondents for charitable purposes. It was also argued that to save the land from so-called Qabza Groups, the respondents deemed it necessary to lease out the land for petrol pump. It was also argued that the respondents were authorized under the law to lease out the trust properties and the same was being leased out with approval of the Chief Minister and that no illegality has been committed by the respondents, as under section 16 of the Waqf Properties Ordinance, 1979 hereinafter to be referred as the Ordinance.
The answering respondents had jurisdiction to lease out the waqf properties. It was further argued that the maintenance of waqf properties as well as running expenses of the hospitals and educational institutions and Jehaiz Committee are met from the income generated from the lease of waqf properties. It was also maintained that the said land was being leased out to save the same from the qabza groups and illegal occupants. According to the learned counsel for the respondents, none of the fundamental rights of the petitioner is breached by the said lease nor any deviation has been made from the purpose of the trust and the lease has been granted for the betterment of the property.
6. The learned counsel appearing on behalf of the respondent No,9, the lessee also advanced similar arguments and maintained that his ancestors have rendered meritorious service for the country, that the construction of a petrol pump is likely to generate jobs for the people living in the locality, which enhance the outlook of the city and that after lease of the trust property, he has spent huge amount to construct the petrol pump and as such he has a vested right to get the lease property. However, admittedly the petrol pump has not been installed as yet. Allegedly some earth work was being carried out which was stayed by the interlocutory order passed by this court.
7. Although possession of the School is denied by the respondents, it is an admitted position that the demised land measuring 4 Kanals is a part of the shrine of Makhdoom Abdur Rashid Haqani, a religious trust, this fact has not been seriously doubted as the same was being used as playground for the residents of the locality, though not exclusively by the School children.
8. According to Mullah a waqf property cannot be alienated. In this case a lease of 4 Kanals of valuable land has been granted to the respondent No,9 at a meagre rent of Rs,4,000 for a period of 30 years. The site plan also shows that the 4 Kanals being leased out to the respondent No,9 have been carved out in a way that the said respondent gets the best chunk, rendering the play land useless for its use as a playground.
9. Under sections 15 and 16 of the Ordinance the Chief Administrator has the jurisdiction to prepare a scheme for the administration of a waqf property. However, the same cannot be leased out for more than three years. In Naeem Ahmad v. Chief Administrator Auqaf 2004 CLC 599 a lease beyond period of 3 years was held to be illegal. His Lordship Ch. Ijaz Ahmad, J, in par No,13 of the judgment observed as under:- "(13) In view of the aforesaid judgments, rules, regulations and provisions of Punjab Waqf Properties Ordinance, 1979, the lease which was granted beyond the period of three years, is not in consonance with the provisions of law and rules and regulations, therefore, it tantamounts to a sale of the property in question, which is not permissible in the eyes of law. The property in question is situated in commercial area and the land which is adjacent to the land in question has higher price. Respondent No,1 had given the land in question on lease at very meagre rate i,e, Rs,1 and 2 per Marla, which is not justified in any canon of justice. This fact alone is sufficient that the Authority has leased out the property in question in violation of mandatory provisions of section 16, Punjab Waqf Properties Ordinance, 1979, without applying its independent mind.
(14) It is the State functionaries who are expected to act fairly and exercise jurisdiction in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise, meaning thereby discretion must be exercised by the Authority without any malice in good faith after its satisfaction within parameters of law. In the present controversy, respondent No,1 has not exercised discretion in accordance with law; therefore, auction of the respondents is without lawful authority. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in Shaukat Ali v. Government of Pakistan PLD 1997 SC 342 and Chairman Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd PLD 1991 SC
14. The contention of the learned counsel of respondents that petition under section 11 of the Punjab Waqf Properties Ordinance, 1997 filed by the petitioner before the learned District Judge concerned, has no relevancy qua the present controversy in this writ petition, therefore, the contention of the learned counsel of the respondents has no force. It is pertinent to mention here that statutory opinion must be an honest opinion or conviction, based on tangible material capable of sustaining such opinion and not an ex parte opinion or colourful exercise of statutory power as the law laid down by the Full Bench of the Court in Kh. Muhamad Sharif's case PLD 1988 Lah. 725 and Store Rolling Mills case PLD 1974 Note 129 p.189 = Kar. 1974 PTD 200."
10. Similarly in Malik Aslam Pervaiz v. Province of Punjab and others 1994 MLD 1986 it was held that a long term lease in fact amounts to sale and as such was not permissible under the law. It was observed that:-- "As observed in Muhammad Sadiq and 15 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and another PLD 1972 Lah. 780, according to the Muslim Jurists, Wakf property is like the property of an orphan and its management cannot be allowed. It needs also to be stated that the dedicator had dedicated the property to Allah Almighty and not for the benefit of the Chief Administrator or employees of the Department. So far as the Muslim Law is concerned, it appears to be well-settled and all the Muslim Jurists are agreed that an appropriation of the property which virtually amounts to sale or transfer cannot be allowed. In Hedaya by Charles Hamilton at page 335, it is stated that "under an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, according to all lawyers; the transfer is unlawful, because of a saying of the Prophet: ' Bestow the Actual Land itself in charity, in such a manner that it shall no longer be saleable or inheritable.
' An appropriation, therefore, is incapable of sale or transfer, upon becoming valid and absolute.
Reference may also be made to Digest of Mohammedan Law by Neil B.E.Baillie, 1957 Edn., P.607, wherein it has been stated that "it is not lawful to let a Wakf except for the rent of similar property". It has, further been opined that where the Superintendent of Wakf lets the property to a Wakf at an inadequate rent, the lease is unlawful."
11. The provisions of section 16 of the Punjab Waqf Properties Ordinance, 1979 were considered by the Hon'able Supreme Court in the case of Allama Maqsood Ahmed v. Government of Punjab 2005 SCMR 816. His Lordship, Iftikhar Muhammad Chaudhry the Hon'able Chief Justice of Pakistan, was of the opinion that though the Chief Administrator Auqaf has the authority to lease out trust properties yet those could not be leased out for more than 3 years. It was observed as follows:-- "A perusal of above section abundantly makes it clear that except the Government, no one else can prepare a scheme of the purpose of sale or from such property or to avoid damage to such property etc. According to section 2 clause (c) of the Ordinance, 1979, "Government" means "the Government of Punjab". As per section 3 of the Ordinance, 1979, the Chief Administrator of Auqaf is to be appointed by the Government for the Province of Punjab and by way of passing an order, the Waqf properties will vest in him. A perusal of subsection (3) of section 3 indicates that office of Chief Administrator is an independent entity having perpetual succession and an official seal. This provision has been incorporated with the sole object to protect the property which has been vested in him by means of order of the Provincial Government. According to subsection (4), the Chief Administrator shall be subject to the general control of Government. Thus, if it is held that, if for the time being, the Chief Administrator was also enjoying the powers of the Secretary to the Government, Auqaf Department Punjab, he had an obligation to take sanction for the purpose of selling or disposing of the property or otherwise.
' Since in the instant case, the Government of Punjab has not floated the housing scheme to accommodate the employees of the Auqaf Department, therefore, merely for the reason that in certain documents, referred to by the learned counsel for petitioner (s), the work "Provincial Government" or "Chief Administrator" have been used, it does not mean that the Chief Administrator with the powers of Secretary can dispose of the Waqf Property, against nominal rentals. Besides it according to Rule 7 of the Rules, 1960, the Chief Administrator Auqaf while floating the scheme of the Government property can grant lease only for a period of three years, whereas in the instant case such discretion has not been exercised properly because there is lot of difference between the lease period of three years and 99 years, therefore, such a discretion has also not been exercised by the Chief Administrator Auqaf Department according to law.
' Thus, -under these circumstances, learned Single Judge in Chamber of the High Court as well as I.C.A. Bench, on having taken into consideration all attending circumstances of the case have rightly concluded that even if this property would have been allotted by preparing a scheme by the Government, even in 1987, it would have fetched chunk of money for the purpose of administering the institution like mosque etc. For which the property was dedicated by the owners of the land at the relevant time.
12. The preponderance of above said authorities amply shows that the grant of 30 years lease of a valuable land, suitable for petrol pump, to the respondent No,9 at a meager rental of Rs,4,000 per month seems to be a colourable exercise of jurisdiction by the respondents, Nos.1 to 4 as well as by the then Chief Minister of Punjab, who sanctioned the lease despite of objections from the Finance Department regarding fixation of extremely low rents.
13. However, apart from the above there is yet another aspect of the case which shows that the said lease was not justified. The petitioners who claimed to be the successor-in-interest of the donor maintained that the said land was donated by their predecessor-in interest only for the religious purpose to the Khankah. Therefore, under the law it is imperative that the land be used for a religious purpose or to a purpose which is akin to the religious purpose like construction of School or use of the same as a playground for the School children as well as for the residents of the locality. The objection raised by the petitioner has force. Without going into the question whether the donor was their predecessor-in -interest or not, to my mind they have raised a very important issue.
14. Admittedly, the land was donated to the Khankah for religious purpose. Almost 38 Kanals out of which some of the land has already been used for construction of School without any objection from any quarter. Since the land has been donated for religious purpose, the only possible alternate use of the land is educational purpose. The land is admittedly being used by the School children as well as residents of locality for games and educational purposes. In Sahibzada Mansoor Ahmad v. Chief Administrator Auqaf 1993 MLD 2529 it was held that the Chief Administrator Auqaf was not vested with the power to change the purpose for which wakf was created. At page 2537 it was observe: "Since the land was dedicated for charitable, religious and pious purposes land was waqf property, therefore, the acquisition of the same under the Land Acquisition Act, for extension of area of Cantonment or any other purpose through Notification No, LAC/DC/BWP/755 dated 30-12-1984 was void and ineffective as regards the land subject matter of waqf."
15. Similarly in Manzoor Bhatti v. Executive Officer Cantonment Board PLD 2002 Lah. 412 it was held that a place reserved for public purpose could not be altered to a commercial purpose. It was held that it was a fundamental right of a citizen, guaranteed by the Constitution, to enjoy the recreation from parks, gardens and green belts established for the benefit of residents of locality. The leading judgment on question whether a recreational place reserved for public could lawfully be converted into a commercial enterprise was given by the. Hon'ble Chief Justice of Pakistan in the case of Moulvi Iqbal Haider v. CDA PLD 2006 SC 364. In para No,31 of the judgment his. Lordship was pleased to hold that:-- "Now we will examine whether in view of the given facts and circumstances of the case, any of the fundamental rights guaranteed to the citizens of Pakistan have been denied. Islamabad, being a capital city, attracts representation from all over Pakistan in different capacities. Thus it is their right to enjoy access to the places of entertainment like Jubilee Park, etc. Under Article, 26 of the Constitution. The same is the position of the inhabitants of the area where the Park is situated. As it has been stated herein above that necessary documents have been withheld by the C.D.A., from the court for which, observations have been made herein above. Thus, it is held that Jubilee Park was earmarked in the original scheme of Sector F-7, as it was meant for low income groups who are deprived of the benefits of having their own private gardens, comparing to higher income groups, therefore converting such parks for commercial activity with the collaboration of multinational companies, would deny the rights guaranteed to them."
16. The dicta laid down in the judgments cited above amply shows that the trust property could not lawfully be given to the respondent No,9 at throw away rentals for establishment of a petrol pump.
It is also held that the trust land can only be used for the purpose for which the land was donated, which was admittedly a religious purpose. However, the only exception to the said purpose is that it can be used for educational purpose, as both of the purposes are for public good. It is also held that the grant of lease for 30 years is ultra vires and void ab initio, as such it is hereby struck down.
This petition is allowed with no order as to costs.