MOHAMMAD AZAM KHAN, CJ. --- The titled appeals by leave of the Court have been filed against a consolidated judgment of the High Court dated 12.2.2008, whereby civil appeals filed by the respondents have been accepted and notification issued by the Auqaf Department on 17.9.1998 has been declared to be issued without lawful authority. Since the appeals arise out of the same judgment, these are being disposed of together.
2. Appellant No. 1 issued a notification on 17.9.1998 while exercising powers under Section 6 of the Azad Jammu & Kashmir Waqf Properties Act, 1960 (to be referred as Act, 1960 hereinafter) amended in the year 1992, whereby it took the control of whole property relating to Darbar Aalia Peer Ganohi, survey Nos. 260 (old) 420 min, 244 min and 427/1 min (new) 240 (old), 424 min, 241 and 242 (old), 429 min (new), 343 (old) and 430 min (new). The respondents filed application under Section 7 of the Act, 1960 for cancellation of the said notification. After necessary proceedings the District Judge dismissed the application on 1.4.2005. Dissatisfied from the judgment of the District Judge, the respondents, herein, filed two separate appeals in the High Court. A learned single Judge of the High Court vide consolidated judgment dated 12.2.2008 accepted the appeals, set aside notification dated 17.9.1998 with the modification that notification will be operative only to the extent of khasra numbers in which said shrine is located. The appellants have filed the titled appeals by leave of the Court against the impugned judgment of the High Court dated 12.2.2008.
3. Mian Sultan Mehmood, Advocate, counsel for respondent, Walayat Hussain, raised a preliminary objection that the appellants have not competently filed the appeal. It was argued that the appeal has been filed without any lawful authority, without sanction of the Government and in violation of the mandatory legal requirements contained in the Rules of Business, 1985, the Law Department Manual and the instructions issued by the Government in this regard. He submitted that under Section 29 of the Law Department Manual and Rule 19 of the Rules of Business, an appeal can only be filed with the permission and sanction of the Government. The learned counsel argued that in para 13 of the Law Department Manual, if the head of the Department is of the opinion and after obtaining legal advice that an appeal is to be filed, he shall seek permission from the Government through Law Department and the Law Department shall grant permission to file the appeal. He further argued that litigation on behalf of the Government Departments can only be conducted with the consultation of the Law Department. The Chief Administrator Augaf has no authority to file appeal without Government sanction. He referred to the cases reported as Abdul Razzaq & 7 others v. Anwar Husain & 5 others [2005 SCR 194], Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan & 3 others [2010 SCR 17], Mumtaz Rasool Mir v. Tariq Mir & 6 others [2011 SCR 299] and Ehtesab Bureau v. Rashid Ahmed Katal & 4 others [2011 SCR 512].
5. In the cases reported as Abdul Razzaq & 7 others v. Anwar Husain & 5 others [2005 SCR 194], Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan & 3 others [2010 SCR 17], Mumtaz Rasool Mir v. Tariq Mir & 6 others [2011 SCR 299] and Ehtesab Bureau v. Rashid Ahmed Katal & 4 others [2011 SCR 512], the rule of law laid down by this Court is that all the proceedings taken by or against or affecting the Government have to be initiated by the Law Department with the approval and sanction of the Government. It was further observed by this Court that under para 29 of the Azad Jammu & Kashmir Law Department Manual, 1984, the appeal or the petition for leave to appeal can only validly be instituted if it is presented by a person competent to institute it. The Government can issue a direction for instiitution of the appeal. Any Department cannot file the appeal without proper sanction.
6. Mr. Abdul Majeed Mallick, Advocate, counsel for the respondent in the appeal titled Chief Administrator Auqaf & others v. Karam Hussain & others argued that without Government sanction, the appeal by a Government Department is not competent in the light of provisions of the Law Department Manual and the Rules of Business, 1985. Hence the appeals filed by the appellant being without the Government sanction merit dismissal.
7. Ch. Muhammad Mumtaz, Advocate, counsel for the appellants, argued that under Section 3(3) of the Act, 1960, the Administrator Auqaf is a corporation and in the light of said provision he is competent to file the appeal.
8. The present appeal has been filed by the Chief Administrator Auqaf. The Act, 1960 is a special law. Section 3 of the Act deals with the appointment of Administrator of Waqf Properties, which is reproduced as under:--- "3. Appointment of Administrator of Waqfs.--
(1) Government shall appoint an Administrator of Waqfs for the Azad Jammu and Kashmir Territory.
(2) No person shall be appointed as Administrator unless he is a Muslim and possesses such qualifications as may be prescribed by Government.
(3) The Administrator shall be a corporation sole by the name of the Administrator of Waqfs Azad Jammu and Kashmir Territory and sh3il have perpetual succession and an official seal, and may sue and be sued in his corporate name.
(4) The Administrator shall be subject to the general control of Government."
A perusal of sub-section (3) of Section 3 of the Azad Jammu & Kashmir Waqf Properties Act, 1960, reproduced above, makes it abundantly clear that the Administrator shall be a Corporation by the name of Administrator of Waqfs Azad Jammu & Kashmir territory and shall have perpetual succession, official seal and may suo and be sued in his corporate name. The provisions of Waqf Properties Act make it clear that all the property shall vest in the Administrator, who is defined as Corporation. The word "Corporation" according to Webster's Comprehensive Dictionary means "an artificial person created by law, consisting of one or more natural persons united in one body under such grants as secure a succession of the body, and empowered to act in a certain capacity or to transact business of some designated form or nature like a natural person." The Administrator under Section 3(3) of the Act, 1960 is a Corporation and he can sue or be sued in his corporate name. Under the said provision, he has power to defend any suit, appeal or application filed against him and has power to initiate proceedings including the suit, application, appeal etc. In his name. The provisions of Law Department Manual are not applicable in the case filed under the Act, 1960. The Administrator is fully empowered to institute proceedings including petition for leave to appeal and appeal.
The corporation is a legal body constituted by law and is a juristic person having independent and distinct entity of its on. In the case reported as United Bank of India v. Naresh Kumar & others [AIR 1997 Supreme Court 3], it was observed as under:- "10. It cannot be disputed that a company like the appellant can sue and be sued in its on name.
Under Order 6, Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29, Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6, Rule 14 together with Order 29, Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power-of-attorney having been executed a person referred to in Rule 1 of Order 29, can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and dehors Order 29, Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6, Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleading on behalf of the company, for example, by the Board of Directors passing a resolution to that effect or by a power- of-attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a Corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The Court can on the basis of the evidence on record, and after taking all the circumstances of the case, especially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer."
In the case reported as Noor Textile Mills Ltd., Shorkot through Syed Jamaat All Shah, Managing Director & another v. Jamil Akhtar Naseeb, Textile Consultant, Faisalabad [2001 CLC 1065], it was observed as under:- ......... It is axiomatic that a limited concern is a juristic person having independent and distinct entity of its on. It need not be sued through anybody. Simple description of a limited company is enough."
In the case reported as United Bank Ltd. v. Shahryar Textile Mills Ltd. & 3 others [1996 CLC 106], it was observed as under:--- .... It will, thus, be seen that the directors of the plaintiff are empowered to exercise all the powers of the company which includes the power to file a suit. They are further empowered to authorize any Manager or officer of the company to perform all or any of the powers and authorities of the directors, and to delegate any of the powers to any Manager or officer of the plaintiff. The power- of-attorney has obviously been given in exercise of powers granted to the Directors by the Articles of Association."
Rule 1 of Order XXIX, C.P.C., postulates that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the Secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the same. Since the Azad Jammu & Kashmir Waqf Properties Act, 1960 is a special law and under Section 3(3) the Administrator Auqaf is declared to be a Corporation, who has power to sue and be sued under perpetual succession, the provisions of the Law Manual and requirements of the Government sanction for prosecution are not attracted. The objection is repelled. The appeals have competently been filed.
9. Ch. Muhammad Mumtaz, advocate, counsel for the appellants, argued that the judgment of the High Court is against law and not maintainable. The application before the District Judge was filed beyond the period of limitation. The law lays down that the application shall be filed within a period of 30 days from notification. The point was thoroughly argued before the High Court but the Court failed to consider the same. The learned counsel submitted that in the previous round of litigation, when the property was took over by the Administrator Auqaf, the respondents challenged the same. Their application was dismissed and the appeal before the High Court was also dismissed.
The Supreme Court declared that the appellants are mere 'mutawali ' of the shrine and not in possession of land in exercise of their personal right. After the finding of the apex Court, the matter has attained finality. The matter cannot be reopened by the respondents, herein. The learned Judge in the High Court has not considered the judgment of apex Court whereby the respondents have been declared only 'mutawali' and not the owners, therefore, the judgment of the High Court is not maintainable. The learned counsel submitted that the respondents are not owners in the village, therefore, they are not entitled to have a share in the shamilat deh land. The learned counsel further argued that it is proved from the record that the property is Waqf property. He requested for setting aside the judgment of the High Court.
10. While controverting the arguments of the counsel for the appellants, Mr. Abdul Majeed Mallick, Advocate, senior counsel, argued that the judgment of the High Court is perfectly legal. The answering respondents are in possession of land in dispute in their on right being co-owners in the village and not in their capacity as "mohtamim" of the shrine. The High Court has passed the judgment in a legal manner. In the previous round of litigation this Court has accepted the version of defendants and the judgment has been passed in their favour. The learned counsel referred to and relied upon the record-of-right pertaining to year 1957- 58 for proving that the respondents are owners in the village. The learned counsel lastly argued that the judgment between the parties has already become conclusive in the previous round of litigation and it cannot be reopened.
11. Mian Sultan Mehmood, Advocate, counsel for the respondent Walayat Hussain, argued that the judgment of the High Court is perfectly legal. The appeal merits dismissal. The learned counsel submitted that the appeal to the extent of Walayat Hussain has abated. His legal heirs were not brought on the record within time. The Additional Registrar has observed the same. Shares are not ascertainable. The appeal merits dismissal in toto. The learned counsel argued that the application before the District Judge was filed within the period of limitation. The notification was not served upon the aggrieved persons. If a notification is not served upon the aggrieved person, the limitation will start running from the date of knowledge. When the appellants tried to take the possession of the property, then the respondents attained the knowledge of notification. They immediately filed application under Section 7 of the Act, 1960. The learned counsel referred to and relied upon the case reported as Muhammad lshaq v. Chief Administrator Auqaf Punjab [PLD 1977 SC 639]. The respondents are owners in the proprietary body of village, they are entitled to share in shamilat deh which has been taken over by the Administrator.
12. In rebuttal, Ch. Muhammad Mumtaz, Advocate, counsel for the appellants, submitted that the matter has finally been settled between the parties by this Court in the previous round of litigation vide judgment dated 8.11.1987 while declaring them as 'mutawali' and now they cannot claim being owners of the land.
13. We have heard the learned counsel for the parties and perused the record.
The Administrator Waqf Properties while exercising powers under Section 6 of the Act, 1960 took over the control of the shrine known as Darbar Aalia Pir Ganohi and all the properties connected with it including survey Nos. 260 (old) 420 min, 244 min and 427/1 min (new) 240 (old), 424 min, 241 and 242 (old), 429 min (new), 343 (old) and 430 min (new). The respondents challenged the said notification by filing an application under Section 7 of the Act, 1960 on the ground that the land is shamilat deh of village Ganohi. They are owners in the village and are in possession of shamilat deh land as of right. They are in possession of the property, in this capacity. They also alleged that previously respondents have issued notification which was challenged by them by way of filing application. The High Court and the Supreme Court have decided the case in their favour vide judgment dated 10.11.1985 and 8.11.1987. Fresh notification cannot be issued in presence of final judgment of the Supreme Court. District Judge dismissed the application. A learned Single Judge in the High Court accepted the appeal while relying upon the judgment of the High Court dated 10.11.1985 and observed that this judgment of the High Court has been maintained by the Supreme Court.
14. First of all, we would like to resolve the question of limitation. The record shows that the notification was issued on 17.9.1998 and the application was filed on 12.12.1998. The application under Section 7 of the Act, 1960 can competently be filed within thirty days of the notification. It was argued by Mr. Abdul Majeed Mallick, advocate, that in the case reported as Muhammad lshaq v.
Chief Administrator Auqaf Punjab [PLD 1977 SC 639], it was held that the limitation shall start running against a person when the notification is brought to the notice of general public by a formal mode. It was observed by the Supreme Court as under:- "Apart from the decided cases, it is common sense that the clause "within 30 days of the publication of such notification" in Section 7 of the Ordinance means that an application contesting the legality of the notification should be filed within 30 days of the time when the notification is brought to the notice of the general public by a normal mode. In the instant case this could not have happened till 23.10.1969 when the Gazette was first delivered to the book depot in the printing press. To hold otherwise would be contrary to justice and good conscience as it would ascribe an intent to the legislature to deprive a citizen of valuable property rights by merely printing a notification and not giving it proper publication. After printing the notification must be passed on to the sales depot and displayed prominently at suitable public places. We are further of the view that a notification under Section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator of Auqaf has declared, to be Waqf."
15. In the similar circumstances in the previous round of litigation, the High Court declared the application within limitation from the date when the order was communicated to the applicants.
The order of the High Court was challenged by way of a petition for leave to appeal in this Court by the Administrator Auqaf which was dismissed while following the view expressed by the Supreme Court in the case reported as Muhammad Ishaq v. Chief Administrator Auqaf Punjab [PLD 1977 SC 639]. The applicants before the District Judge specifically alleged that they attained the knowledge of notification when the Department took the possession of property a week before. The application was filed within time.
1A. It was argued by the counsel for the respondent, Walayat Hussain, that the appeal has abated on the ground that in the application filed on 22.10.2009 all the legal representatives of Walayat Hussain have not been arrayed as party. The Additional Registrar, Branch Registry Mirpur has observed that the first application for arraying legal representatives of Walayat Hussain was within time. On objection that all the legal heirs have not been entered in the application, another application was filed which was beyond the period of limitation; i.e., 71 days after the limitation.
Under Order XV, Rule 8 of the Azad Jammu & Kashmir Supreme Court Rules, 1978. The application for arraying legal representatives of a party is to be filed within 90 days. The application for arraying all the legal representatives of Walayat Hussain has not been filed within 90 days. There is no concept of automatic abatement of appeal in the Supreme Court. The Court for sufficient reasons may extend the time.
17. We have perused the statement of Khizar Mehmood, an employee of the Auqaf Department who is deputed by the Department to pursue the case in this Court. When he got knowledge of death of Walayat Hussain, he inquired about the legal heirs of the deceased. He went two times to village Ganohi. He was not personally known to the legal heirs of deceased, therefore, he inquired from one of his relatives to collect information about legal heirs of Walayat Hussain and filed application. The subsequent application was filed when the counsel for the respondent filed objections that all the legal heirs have not been brought on record, whereupon Manager Auqaf deputed at shrine was informed to inquire about all the legal heirs and after information collect by the Manager, new application was filed. The reason explained by the witness, Khizar Mehmood, furnishes sufficient cause for condonation of delay. If the parties are private and residing at same place, then it can easily be said that the parties know each other and their legal representatives but Walayat Hussain is a private person and particulars of legal heirs cannot be known to an employee of the Department. The concerned employee tried to ascertain the knowledge. Whatever the knowledge he could obtain, he filed application within the period of limitation and on objection being filed by the counsel for the respondents, the Department again made an inquiry through Manager of the shrine and after obtaining the knowledge about all the legal representatives, the application was filed which is sufficient ground for condonation of delay. The delay is condoned.
The legal heirs of deceased Walayat Hussain are impleaded as party in the line of respondents.
18. Both the parties have relied upon the previous round of litigation. The appellants claim that the final judgment is in their favour while the respondent's claim otherwise. The facts in the previous round of litigation were that the Administrator Auqaf issued notification whereby he took over and assumed the administration, control and management of the shrine Dargah Pir Shahab including properties attached with it as well as the income and offerings of the shrine, this notification was challenged by the respondents through application under Section 7 of the Act, 1960, which was dismissed. On appeal the High Court set aside the judgment of the District Judge and if was declared that, the notification in question shall be deemed to be applicable only to the shrine Pir Shahab and not beyond that. The relevant portion of the judgment of the High Court dated 10.10.1985, reads as under:- "The reasons listed above lead to the conclusion that the finding of the learned District Judge is misconceived and ill-founded and the same is, therefore, set aside. The appeal is allowed in the manner that the notification in question shall be deemed to be applicable only to the shrine Pir Shahab and not beyond that. The action of the Administrator Auqaf beyond the shrine is ineffective, inoperative and without jurisdiction. Costs shall follow the event."
The respondents challenged the judgment by filing a petition for leave to appeal in this Court. The appeal was dismissed on 8.11.1987, while declaring that the appellants were holding the possession of shrine and were managing the affairs of the same. As 'mutawali' and not on the basis of their personal right. The relevant observation in the judgment is reproduced as under:- "We have given our due consideration to the arguments advanced at the Bar. According to the explanation I to Section 2 of the aforesaid Act, if a property has been used from time immemorial for any purpose recognized by Islam are religious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf. According to explanation 3 of the aforesaid provision the income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be 'Waqf Property'.
A perusal of the record shows that the appellants were holding the possession of the shrine and were managing the affairs of the same as 'Mutawalies' and not in their personal right. A reference may be made to the copies of the revenue record Ex.PA, PB and PC, wherein it is clearly recorded that the shrine is 'being managed' by the appellants. Obviously, the appellants and their forefathers had been only 'Mutawalies' of the property and were not holding the same or managing the affairs of the shrine in exercise of any personal right. There is overwhelming documentary evidence in form of the revenue record that the shrine was a Waqf property in view of explanation 3 to Secticn.
2 of the aforesaid Act. We find no force in the contention of the learned counsel for the appellants that the appellants had been in possession of the shrine in exercise of their personal right and as such the notification is violative of law."
19. A careful perusal of the above reveals that the High Court declared that the notification is applicable only to the shrine Pir Shahab and not beyond that. This Court while dismissing the appeal observed that the present respondents are holding possession and were managing the affairs of shrine as 'mutawali' and not in their personal right. The matter has been decided by the Court in categorical terms that the respondents are only mutawali, they have not no personal right in the property in dispute.
20. This Court has recorded findings against the applicants, respondents herein. Under Section 42(b) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, any decision of the Supreme Court is binding on all other Courts in Azad Jammu & Kashmir and a party cannot be allowed to agitate the matter decided by the Supreme Court on the basis of same record in fresh proceedings. When it has already been declared by this Court that the respondents are not holding the possession of the shrine in their personal right, they are holding the possession as mutawali, they are estopped to claim that they are in possession of the land in the capacity of owners in village.
The result of the above discussion is that the appeals are accepted. The judgment of the High Court is set aside. Resultantly the applications before District Judge are also dismissed.