SH. AZMAT SAEED, J..- This order shall dispose of. Writ Petition No. 13749/2006 and Writ Petition No. 14161/2008.
2. Brief facts necessary for adjudication of the lis at hand are that M/s. Noor Shah Filling Station (Reg.) through its Manager filed Writ Petition No. 13749/2006 inter alia against the Auqaf Department and its officers, who were impleaded as respondents Nos. 1 to 3. The Nazim Union Council Faizpur, Tehsil Ferozewala, District Sheikhupura was impleaded as respondent No. 4 and DPO Sheikhupura was impleaded as respondent No. 5. It was contended in the said writ petition that land measuring 11 Kanals, 2 Marlas situated in village Chahr, Tehsil Ferozewala District Sheikhupura. Darbar Noor Shah Wali vested in the Auqaf Department, It was contended that a public notice was published in various newspapers in December, 2004 for the holding of a public auction for the grant of lease of 8 Kanals out of the aforesaid land. The terms and conditions advertised were that the lease would be granted for purposes of establishing a petrol pump or for any other commercial purposes. The period of the lease was advertised as 10 years and the person offering the maximum goodwill would be granted the lease, It was contended that a public auction was held on 30.12.2004, in which allegedly several people participated. The petitioner i.e. Noor Shah Filling Station (Reg.) was the highest bidder, who offered the goodwill of Rs. 30,20,000/- and the said amount was duly deposited, vide receipt dated 30.12.2004. In addition thereto a monthly rent of Rs. 4,000/- was also agreed to between the parties. The said offer was in respect of 4 Kanals of land and it was accepted. Subsequently, a lease deed/agreement was executed by the Auqaf Department in favour of the petitioner which was duly registered with the Sub-Registrar, of Documents, Ferozewala on 20.9.2005. Prior thereto, it was contended that the possession of the land in dispute measuring 4 Kanals was handed over to the petitioner by the Auqaf Department on 2.5.2005. Pursuant to the grant of aforesaid lease, the petitioner claims to have obtained the requisite consents and permissions from the authorities concerned for establishing of a petrol station at the site in question, It was also contended that the monthly rent which was required to be paid in addition to the goodwill was duly paid regularly. Whereafter, the construction commenced at the site and it was alleged that a boundary wall was also constructed. The grievance of the petitioner was that respondent No. 4, who is Nazim, Union Council Faizpur, started to interfere in the said construction, In the above perspective, respondent No. 1 issued a letter dated 13.12.2006 directing the petitioner to suspend the work at the petrol station. Through the Constitutional petition i.e. Writ Petition No. 13749/2006 the said letter dated 13.12.2006 was challenged and it was prayed that the same be declared as illegal and without lawful effect, It was further prayed that respondents Nos. 1 to 4 be restrained from acting in violation of the law to the detriment of the legal rights of the petitioner.
3. The Auqaf Department i.e. Respondents Nos. 1 to 3 in Writ Petition No. 13749/2006 filed report and parawise comments, wherein the facts stated in the constitutional petition were admitted, In addition thereto, it was further contended that auction had taken place strictly in accordance with law and after obtaining requisite permission from the Provincial Government, It was also the case of the Auqaf Department that the property in dispute alongwith Darbar Noor Shah Wali was taken over by the Auqaf Department, vide notification dated 11.3.1986, and the Manager Auqaf, Sheikhupura Circle took over the control of the said property on 24.3.1986. A portion of 4 Kanals of the total land measuring 11 Kanals and 2 Marlas was identified for purposes of grant of lease through open auction pursuant to a scheme prepared by the Chief Administrator of Auqaf Department with the prior approval of the Government of Punjab through the Chief Minister of the Province, It was contended that auction was held and the petitioner, who was the highest bidder, was granted the leasehold rights through the lease deed/agreement, duly registered, It was further contended that some issues were raised by the local inhabitants. Consequently., the letter dated 13.12.2006 was issued for suspension of work which was subsequently withdrawn, vide order dated 17.1.2007. Two other facts were brought on record, firstly that the lease has since been extended to a period of 30 years and secondly, out of the total area of 11 Kanals and 2 Marlas, 4 Kanals has been leased out, another portion is inhabited and an area of VA Kanal is available for purpose of ceremony/Urs/Mela of the Darbar which is allegedly held for two days in a year, It was prayed that the Constitutional petition has in fact fructified as the impugned order/letter dated 13.12.2006 has been withdrawn, vide subsequent letter dated 17.1.2007 Respondent No. 4, in Writ Petition No. 13749/2006 set up the plea that in fact the petrol pump is being established in the Ehata of the Darbar which has hurt the religious sentiments of the people of the locality who held the said Darbar whereat the saint is buried in great reverence, It was further stated that the area which has been leased out is used for the performance of the rites and rituals, more particularly during the Urs of the saint, It was added that the land in dispute forms part of the Darbar itself and can only be used for the performance of the rites and rituals and not for any other purpose. Furthermore, the lease has been granted with mala fide intention for a ridiculously low consideration in violation of the rules and regulations applicable thereto.
4. During the pendency of the aforesaid Constitutional petition i.e. Writ Petition No. 13749/2006, the Naib Nazim of Union Council Faizpur and another filed a Constitutional petition i.e. Writ petition No. 14161/2008 challenging the grant of lease to Noor Shah Filling Station by the Auqaf Department, who were impleaded as respondents. It was contended in the said Constitutional petition that the property in dispute had been transferred/gifted to the Darbar by one Sardar for a particular purpose and the respondent- Auqaf Department has no right in law to allow the property to be used for any purpose other than the one identified in the dedication, It was also contended that the lease was granted illegally and has been extended for a period of 30 years in violation of the law.
Mala fides were alleged against the respondents and it was prayed that the said lease be declared without lawful authority and the property should not be permitted to be used for establishing a petrol station.
5. The aforesaid Constitutional petition was resisted, It was inter alia contended that the same is barred by laches. The Auqaf Department as well as the lessee thereof reiterated that the grant of lease was strictly in accordance with law and the best interest of the Darbar, as the income would be generated from it which would be used for the upkeep of the Darbar. It is added that the petition is mala fide and has been filed in defence of the encroachers who were illegally occupying the adjacent land of the Waqf property without paying a penny to the Auqaf Department, It was denied that the property had been transferred to the Darbar for a particular purpose.
6. Pursuant to a direction from this Court, the Auqaf Department placed on record the copies of the summary dated 1.11.2004 purported to have been approved by the Chief Minister of Punjab on 24.11,2004 as well as report of the Dean/Chief Administrator of Auqaf Department dated 16.8.2005 purported to have been approved by the then Chief Minister of Punjab on 19.8.2005. Similarly, the documents of transfer of the land in dispute to the Darbar by Sardar were also directed to be placed on record and in this behalf a copy of the sale-deed dated 13.8.1958 has been placed on record.
7. The counsels for the parties have been heard and record perused.
8. In pith and substance, it is the case of the petitioner in Writ Petition No. 13749/2006 as well as of the Auqaf Department that the land in dispute is a Waqf property and by operation of law its administration, control, management and maintenance has been taken over by and vests in the Chief Administrator Auqaf pursuant to a notification issued in this behalf. And by virtue of Section 15 of the Punjab Waqf Properties Ordinance, 1979, the Chief Administrator Auqaf is empowered and enjoined to prepare a scheme for the administration and development of the Waqf property and in exercise of such powers, a scheme was prepared, whereby it was proposed to auction the leasehold rights of the land in dispute for the purpose of establishing a petrol station. Such scheme was duly approved by the Government of the Punjab. Pursuant to the said scheme, a public auction was held, in which the petitioner in Writ Petition No. 13749/2006 was the highest bidder who has paid and tendered the agreed consideration, It is also contended on their behalf that the land in dispute was not dedicated for a particular purpose and the establishment of a petrol station thereat would not interfere with the performance of rites and rituals at the Darbar. It is contended that the action has been taken by the Auqaf Department in accordance with law and in the best interest of the property, so as, on one hand, to generate funds for the upkeep of the Darbar and on the other to save the property from being preyed upon by encroachers as has happened with the adjoining Waqf property, It is also contended that the resistance is mala fide and motivated by a desire to encroach upon the property.
9. While it is the case of the Nazim, who is respondent No. 4 in Writ Petition No. 13749/2006 and the Naib Nazim of the area, who is petitioner in Writ Petition No. 14161/2008, that the land in question forms part of the Ehata of the Darbar which has been dedicated for and is used for the performance of religious rites and rituals at the Darbar by the devotees, It is further contended that the Chief Administrator Auqaf has no absolute right to deal with the property at his own sweet will and that too in violation of the dedication and immemorial use thereof, In fact it can only be used for a purpose recognized as religious, pious or charitable and setting up of a petrol station is not such a purpose. Even otherwise, the property in dispute at best could only be leased for a maximum period of 3 years. Furthermore, the land has been auctioned for a pittance and the period of the lease has been illegally extended from 10 years to 30 years in violation of the law. In support of his contentions, the learned counsel has relied upon the judgments reported as (i)
Muhammad Sadiq and fifteen others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and others (PLD 1972 Lahore 780), (ii) Sheikh Inayat Ullah and others v. M.A. Khan and others (PLD 1964 SC 126), (iii) Chief Administrator of Auqaf, Punjab, Lahore v. Mian Abdul Majid and seven others (1980 CLC 651).
10. There can be no escape from the fact that the land in question is a Waqf property and, therefore, belongs to Allah Almighty. The matter is to be dealt with under the Punjab Waqf- Properties Ordinance, 1979. The Chief Administrator Auqaf is vested with the administration, control, management and maintenance thereof by virtue of Section 7 of the Ordinance, 1979. The extent of the powers and jurisdiction of the Chief Administrator Auqaf and his subordinates is to be determined under the .Ordinance of 1979 and the rules framed thereunder. This Court in its judgment reported as Muhammad Sadiq and fifteen others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and others (PLD 1972 Lahore 780), while interpreting the provisions of the West Pakistan Waqf Properties Ordinance, 1961, whose provisions are not dissimilar to the Ordinance 1979, held as follows:- "The Auqaf Chief is at best a Mutwalli interested in the income of the property."
The powers of the Chief Administrator Auqaf qua dealing with the Auqaf property are set-forth in Section 15 of the Punjab Waqf Properties Ordinance, 1979, which reads as follows:- "Chief Administrator to prepare scheme for the administration and development of Waqf property:
(1) The Chief Administrator shall as respects the Waqf property in respect of which a notification under section 7 has been issued and the gross annual income from which exceeds five thousand rupees and in other cases may, settle a scheme for the administration and development of such Waqf property.
(2) In the settlement of a scheme the Chief Administrator shall give effect to such wishes of the person dedicating as can be ascertained, and to which effect can be reasonably given."
Section 16 confers the powers of sale of the Waqf property subject to the terms and conditions mentioned therein.
Section 17 of the Ordinance, 1979 is also of significance. The same reads as follows:- "Use of Waqf property and application of income therefrom:- Subject to the provision of this 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 Chief Administrator may deem fit."
11. It appears that pursuant to the powers conferred upon the Governor of the Punjab by virtue of Section 25 of the Punjab Waqf Properties Ordinance, 1979, Punjab Waqf Properties (Administration)
Rules, 2002 have been promulgated and lease of properties has been dealt with under Rule 7 thereof and the relevant portion of the said Rule 7 reads as follows:- "Lease of Waqf properties:- (1) Unless otherwise specifically provided in the scheme settled under rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme:-
(i) Where the lease relates to land:
(a) the period of lease shall be one year and shall not exceed three years with the following break up:-
(aa) first year's money to be determined in the open auction;
(bb) second year 20% increase; and
(cc) third year 20% increase.
The lease shall be extendable, subject to the approval of the Chief Administrator Auqaf for further two years with the following rate of lease money:- First year 10% Second year 10% Provided that the Chief Administrator of Auqaf may grant a lease for any longer period if in his opinion such action is necessary in the best interest of the Waqf property."
12. Section 17 of the Punjab Waqf Properties Ordinance, 1973 is legally identical to Section 11 of the West Pakistan Waqf Properties Ordinance, 1961 and the latter provision has been interpreted by the Hon'ble Supreme Court of Pakistan in its judgment reported as Sheikh Inayat Ullah and others v.
M.A. Khan and others (PLD 1964 SC 126) in the following terms:- "Our attention was also invited to sub-section (2) of the Section 11 of the Ordinance and it was sought to be inferred therefrom that the Chief Administrator had power to disregard wishes of the dedicator of a Waqf property, if he so thought fit. This sub-section, however, seems designed to ensure that the wishes of the dedicator of a Waqf, may be honoured as far as they can be reasonably given effect to. Some dedicators may have laid down conditions for the user of a Waqf property, which may become impossible of implementation, due to change of circumstances or otherwise and this sub-section is apparently inserted in the Ordinance, to meet such a situation, It cannot be pressed into service to support the contention that ' the Chief Administrator has plenary powers in the matter and can assume a dictatorial role"
13. Section 13 of the West Pakistan Waqf Properties Ordinance, 1961 is legally identical to Section 17 of the Punjab Waqf Properties Ordinance, 1979, reproduced above, and the said provision has been.
Interpreted by a Division Bench of this Court in its judgment reported as Chief Administrator of Auqaf, Punjab, Lahore v. Mian Abdul Majid and seven others (1980 CLC 651) in the following terms:-- - "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.
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.
Even otherwise Section 13 would apply to a user of a Waqf property and not its misuse."
14. A perusal of the aforesaid provision of the law as interpreted by the Hon'ble Supreme Court and this Court, referred to above, it is clear and obvious that the status of the Chief Administrator Auqaf and his subordinates is that of a Mutwalli, whose authority is circumscribed by the provision of the law i.e. The Punjab Waqf Properties Ordinance, 1979 and the rules framed thereunder. The Chief Administrator Auqaf is vested with the administration, control, management and maintenance of the Waqf properties and is authorized to prepare a scheme for the administration and development of such Waqf properties, but such authority is neither absolute nor unfettered. The discretion in this behalf is strictly structured by law and is always justifiable. The Chief Administrator is required to give effect to the wishes of a person dedicating the Waqf to the extent that such wishes can be ascertained and reasonably be given effect to. Similarly, subject to the provision of the Ordinance 1979, the Waqf property is to be used for the purpose for which it was dedicated or has been used provided such use is recognized by Islam as religious, pious or charitable and has not been overtaken by time and change in circumstances, In short, the first option must necessarily be to prepare a scheme in a manner that the property is used for the purpose for which it was dedicated or for the purpose for which it was used prior to its being taken over by the Auqaf Department. Only where such wishes of the dedicators are not ascertainable or impossible to give effect thereto, the Waqf property may be used for any purpose recognized by Islam as religious, pious or charitable. Similarly, if the property is being used for a particular purpose and the same is recognized as religious, pious or charitable by Islam, every effort must necessarily be made to ensure that it is continued to be used for that purpose.
15. In the instant case, the land in dispute was sold to the Darbar through its then Mutwalli, vide sale-deed dated 12.8.1958, copy whereof is on the record, It is not a case of dedication or creation to Waqf for a particular purpose, but it is in fact a property acquired by Waqf through its funds, hence there is no specified purpose for which this property was dedicated, which needs to be ascertained or given effect to. At this juncture, it may be pertinent to mention that the law 'recognizes the creation of Waqf where the property dedicated is not in itself directly to be used for a purpose recognized by Islam as religious, pious or charitable (such as establishment of mosque, Khanqah, public graveyard etc.) but the purpose is that the income generated therefrom be used for a religious, pious or charitable (such as the maintenance of Khanqah or a mosque, burning lamps at a mosque, payment of arms to the poor etc.)- The aforesaid becomes even more obviously as not only immovable property but also moveable property such as stock, shares and cash can also form subject-matter of a Waqf.
16. Whether the land in dispute was being used for a particular purpose recognized as religious, pious or charitable, needs to be examined, It is the case of respondent No. 4 in Writ Petition No. 13749/2006 as well as the petitioners in Writ Petition No. 14161/2008 that the land in question forms part of the Ehata of the Darbar and is used for purpose of rites and rituals during the annual Urs.
While, on the other hand, it is the case of the petitioner in Writ Petition No. 13749/2006 that the land is not part of the Ehata of the Darbar and the Urs in fact takes place over a much larger area which is privately owned and the establishment of the petrol station will not interfere in the performance of any such annual rites and rituals. Interestingly the Auqaf Department in its reply have avoided this issue.
17. Adverting now to the contentions of the learned counsel that respondent No. 4 in Writ Petition No. 13749/2006 and the petitioners in Writ Petition No. 14161/2008 that the property could not be leased out for a period of more than 1 year or at best 3 years. Suffice it to say that Rule 7 of the Punjab Waqf Properties (Administration Rules, 2002), prescribes that ordinarily such lease of Waqf property should not exceed 3 years which provision is in consonance with the classical Islamic Law with reference to powers of a Mutwalli to lease the property. However, a proviso has been added whereby the Chief Administrator Auqaf may grant a lease for a longer period if in his opinion such action is necessitated by the best interest of the Waqf property. That proviso obviously requires conscience application of mind and determination and disclosure of reasons as to why the lease in a particular case is being granted for a longer period of time, In the instant case, in the summary dated 1.11.2004 prepared by the Chief Administrator Auqaf and submitted to the Chief Minister of the Punjab, it has been stated that more funds would be generated from lease of the land in question for the purpose of establishing a petrol station than its lease on an annual basis.
Furthermore, such exercise would save the property from encroachments. There can be no escape from the fact that if the land in question is leased out for an annual basis, the funds realized therefrom would be a mere fraction of the consideration that can be obtained for a longer lease for a commercial purpose. Perhaps the proviso has been enacted to cater for such a situation necessitated by changing status to the adjoining land to a Waqf property and its urbanization.
Thus, in principle, there can be no cavil with the argument that Waqf land can be, for reasons to be recorded, leased out for a period longer than 3 years by the Chief Administrator Auqaf, obviously with the prior approval of the Government of Punjab. Financial advantage can obviously be a reason for grant of such a lease.
18. However, it has been noticed that in the summary dated 1.11.2004 issued by the then Chief Administrator Auqaf, thirteen properties have been earmarked for lease for a period of 10 years for establishment of petrol stations. The instant property is placed at No. 12. It has been noticed, that the only consideration mentioned in the summary is a financial advantage and saving the property from encroachments. There is no reference to the wish, of the dedicator at all anymore than a reference to the use if any to which the property has been put which may be recognized by Islam as religious, pious or charitable. Obviously, the Chief Administrator Auqaf has issued the summary without taking into consideration the provisions of Section 15(2) and Section 17 of the Punjab Waqf Properties Ordinance, 1979, which is regrettable, It has also been noticed that after the auction had been held on the 30th of December, 2004, the period of lease was subsequently extended to 30 years upon a note of the Chief Administrator Auqaf dated 16.8.2005 which was approved by the then Chief Minister of the Punjab on 19.8.2005. This course of action is rather strange as in the advertisement only a 10 years lease was offered. Had a 30 years lease been offered, there is a possibility that other participants of the public auction may have offered a higher consideration.
19. The Auqaf Department has attempted to set up the plea of laches with respect to Writ Petition No. 14161/2008; There is no question of laches with respect to Writ Petition No. 13749/2006 wherein appropriate orders can always be passed by this Court. Furthermore, in view of the fiduciary relationship it does not behave of the Auqaf Department to set up such a plea as a defence for its dereliction of duty in respect of property vesting in Allah Almighty.
20. In view of the above, this Court considers it appropriate that the matter be referred back to the Chief Administrator Auqaf so that he can re-visit the issue, conduct the inquiry so as to determine whether the land, subject- matter of the instant litigation, has been used since time immemorial for a purpose recognized as religious, pious or charitable and whether or not the establishment of a petrol station shall interfere with the performance of the rites and rituals at the Darbar in question. The Chief Administrator should also examine the judiciousness and legality of extension of the lease period after the auction had been held. The Chief. Administrator Auqaf shall compile his recommendations and obviously shall re-submit the same to the Government of the Punjab for approval. These petitions are disposed of with the above observations leaving the parties to bear their own costs.