MIRZA VIQAS RAUF , J. Though there is no similarity of facts in the instant appeal as well as F.A.O.No.153 of 2005 and F.A.O.No.427 of 2012, but since all these appeals give rise to common question of law, so are hereby decided through this single judgment.
2. Before adverting to the question of law ensuing from these appeals, it would be expedient to first have a factual resume as well.
3. Facts in brevity necessary for adjudication of instant appeal (F.A.O.No.152 of 2005) and F.A.O.No.153 of 2005 are that the appellant-department issued notification dated 17.08.1977, whereby it took over the Shrine of Baba Abbas Ali Shah and vide amended notification dated 25.12.2000, had taken over possession of agricultural land measuring 43 kanals situated at village Naroki Majha, alongwith residential plots measuring 3 kanals, 19 marlas and 194 square feet situated at Chak No.35 Bedian Tehsil Pattoki, District Kasur from the respondents. Being dissatisfied, the respondents filed a petition under Section 11 of the Punjab Waqf Properties Ordinance, 1979 (hereinafter referred as "Ordinance"), before the learned District Judge, Kasur , which was entrusted to a learned Additional District Judge, Kasur vide order dated 11.01.2002. The said petition was resisted by the appellant. The learned trial court after framing of necessary issues and recording evidence of both the parties, allowed the petition vide judgment dated 15.03.2005, which has been challenged by the appellant through the instant appeals.
In F.A.O.No.427 of 2015, the brief facts are that the appellants therein are owners of a house consisting of twelve rooms falling in Khasra No.2, Mandi Pattoki, adjacent to Shrine of Darbar Syed Abbas Hussain Shah, Pattoki. The respondents vide notification dated 17.08.1977 took over the possession of the said house. The appellants have alleged that on northern side of the said house, foundations of 10/11 rooms bearing Khasra No.1546 measuring 4 kanals, 3 marlas situated in Naroke Majha are still existing. Further , the respondents acquired treasury box, Mosque and courtyard etc. falling in Khasra No.1 Mandi Pattoki. The appellants moved an application under Section 11 of the Auqaf (Federal Control) Act, 1976, which was accepted by a learned Additional District Judge, Kasur vide order dated 21.09.1985, whereby , building of Darbar , Mosque, treasury box, Nazrana-jaat, courtyard and Langar-khana were declared as Waqf property , however , land falling under the said properties was not declared as such. It would not be out of place to mention here that by virtue of Section 26 of the "Ordinance", Auqaf (Federal Control) Act, 1976 was repealed and all things done or purported to have been done, action taken, liability or penalty incurred or proceeding commenced were saved thereunder . The appellants have also pleaded that the residential houses consisting of 12 rooms and foundations of 10/11 rooms situated on northern side of house bearing Khasra No.1546 measuring 4 kanals, 13 marlas situated in village Naroke Majha were not declared as Waqf property , rather the same were declared as ownership of the appellants. Being dissatisfied from the aforesaid order , the respondents filed an appeal (F.A.O.No.207 of 1985), however , the Provincial/Federal government was not impleaded as party and thus the appeal was dismissed by this Court vide order dated 21.11.2000. Even the respondents had not challenged the order of the learned Additional District Judge, Kasur regarding foundation of 10/11 rooms. The appellants have alleged that in July 2000, the respondents forcibly occupied 10/11 rooms and in this regard issued notification dated 27.06. 2000. It has been maintained by the appellants that by way of order dated 21.09.1985, foundations of 10/11 rooms, residential houses of the appellants were ousted from the jurisdiction of the respondents as such said notification dated 27.06.2000 is void, illegal and ineffective upon their rights and the same be declared as such. The said petition was seriously opposed by the respondents. The learned trial court after framing of issues and recording evidence of both the sides, dismissed the petition vide judgment dated 10.09.2012. Hence this appeal before this Court.
It is pertinent to mention here that in the first round of litigation, the petition was dismissed vide judgment dated 15.03.2005. The appellants feeling aggrieved preferred an appeal (R.F.A.No.157 of 2005) before this Court, which was allowed vide order dated 21.02.2012 and the matter was remanded with the direction to the learned Additional District Judge, Kasur to decide the same on merits afresh.
4. In view of common legal proposition involved in these appeals, vide order dated 03.06.2020, Mr. Muhammad Shahzad Shaukat, Advocate was appointed as amicus curiae to render assistance to the Court.
5. The moot point which has been canvassed and addressed by the learned counsel for the parties and the amicus curiae is as to whether an "Additional District Judge" can be termed as "District Court" as per contemplation of Section 11 of the "Ordinance" and the effect of order/judgment rendered by the learned Additional District Judge in such proceedings.
6. Mr. Muhammad Muzaf far Samore, Advocate representing the Auqaf Department in all these appeals has taken a categoric stance that in terms of Section 11 of the "Ordinance", it is only the "District Judge", who is competent to adjudicate the petition. It is contended that the learned Additional District Judge figures nowhere in the hierarchy of the "Ordinance". He has also referred Sections 2(20) and 2(21) of the General Clauses Act 1956 in order to supplement his contentions.
7. Conversely , Mr. Zahid Saleem, Advocate for respondents No.1(a) to 1(d), 2, 4 to 6, 9 and 10 and appellants in F.A.O.No.427/2012 submitted that there is no distinction with regard to their jurisdictional functions inter-se the "District Judge" and the "Additional District Judge". It is contended with vehemence that powers and functions of the learned District Judge and the learned Additional District Judge are pari materia in terms of Section 11 of the "Ordinance". In order to supplement his contentions, he has relied upon ABDUL SAMAD versus MUHAMMAD ALI AND ANOTHER (PLD 1977 Lahore 687) and ADMINISTRA TOR, THAL DEVELOPMENT through EACO Bhakkar and others versus ALI MUHAMMAD ( 2012 SCMR 730 ).
8. While adding to the above submissions, Mr. Zahoor-ul-Haq, Advocate submitted that even by virtue of provisions contained in the Punjab Civil Courts Ordinance, 1962, there is no distinction between the "District Judge" and the "Additional District Judge" qua their judicial functions.
9. Syed Shadab Hussain Jafferi, learned Additional Advocate General Punjab, who is in attendance in pursuance of the notice issued to the Advocate General Punjab in terms of Order XXVIIA of the Code of Civil Procedure (V of 1908) submitted that the learned Additional District Judge is not synonymous to the District Court used in Section 11 of the "Ordinance".
10. Mr. Muhammad Shahzad Shaukat, Advocate being amicus curiae on the other hand submitted that though term "District Judge" is nowhere defined in the "Ordinance", but for the purpose of distinction in the status of a "District Judge" and "Additional District Judge", analogy can be drawn from Section 24 of the Code of Civil Procedure (V of 1908). He added that term "District Court" can only be interchangeable to "District Judge", but not an "Additional District Judge". It is contended on the strength of Sections 2(17)(20) and (21) of the General Clauses Act, 1956 that Section 11 of the "Ordinance" only recognizes the "District Judge", but not the "Additional District Judge". He has also referred HAJI ABDULLAH THROUGH HIS L.RS. versus MST. GOHAR SULTANA, ETC (NLR 1985 Civil 87) and Mst. AZIZ BEGUM versus Sheikh NUR MUHAMMAD (ADDITIONAL DISTRICT AND SESSIONS JUDGE, LYALLPUR) AND OTHERS (PLD 1962 (W .P.) Lahore 887).
11. Heard. Record perused.
12. For the purposes of proper management and administration of Waqf Properties in the Province of the Punjab, the "Ordinance" was promulgated in pursuance of the Proclamation of Fifth day of July, 1977, read with the Laws (Continuance in Force) Order (C.M.L.A. Order I of 1977) by the Governor of the Punjab, Waqf Property is defined in Section 2(e) of the "Ordinance", as under:- "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized 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 (VI of 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".
13. Section 7 of the "Ordinance" authorizes the Chief Administrator appointed by the Government in terms of Section 3 to take over and assume the administration, control, management and maint enance of waqf property through a notification. In terms of Section 11 of the "Ordinance" any person claiming any interest, in any waqf property in respect of which a notification under Section 7 has been issued, can bring a petition within thirty days of the publication of such notification before the District Court within whose jurisdiction the waqf property or any part thereof is situated seeking a declaration:--
(a) that the property is not waqf property;
(b) that the property is waqf property within the limits stated in the petition.
14. The moot question raised herein is relatable to the term "District Court" used in Section 11 of the "Ordinance". It is an admitted position on all hands that "District Court" is nowhere defined in the "Ordinance" itself. Section 2(21) of the West Pakistan General Clauses Act, 1956 however defines the terms "District Court" as under:- "District Court" shall mean the principal Civil Court of original civil jurisdiction of a district; but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction". whereas Section 2(20) of the Act ibid provides the definition of "District Judge" in the following words:- "District Judge" shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include the High Court in the exercise of its ordinary or extraordinary original civil jurisdiction".
It is thus apparent from the above that a "District Judge" is the Judge of a Principal Civil Court of original jurisdiction, but Section 2(20) does not include the "Additional District Judge" as a Judge of Principal civil court of original jurisdiction alongwith District Judge. This omission seems to be meaningful and purpose oriented when Section 2(17) is examined in this context. Section 2(17) defines the "Commissioner" as under:-- "Commissioner" shall mean the chief officer of the revenue and general administration of a division ; [and shall include an Additional Commissioner of such division]".
The inclusion of "Additional Commissioner" in the realm of "Commissioner" and simultaneously exclusion of "Additional District Judge" from the definition of "District Judge" under Section 2(20) seems to be intentional on the part of legislature.
15. The term "District Court" has also been defined in various Law Dictionaries as under:- Black' s Law Dictionary Tenth Edition 1. A trial court having general jurisdiction within its judicial district.
2. A local court, usu. staf fed by lay magistrates, within jurisdiction over petty crimes.
Merriam-W ebste r's Collegiate Dictionary Eleventh EditionA trial court that has jurisdiction over certain cases within a specified judicial district.
The Chambers Dictionary 12 EditionThe federal court for a district in the USA; the lowest grade of Scottish criminal court.
16. To this effect, when the Punjab Civil Courts Ordinance, 1962 (hereinafter referred as "Ordinance 1962") is examined, it is observed that various classes of Courts have been defined in Section 3 of the Ordinance ibid in the following way:--
(a) the Court of the District Judge;th
(b) the Court of the Additional District Judge; and
(c) the Court of the Civil Judge; Section 3 thus draws a distinction between the Court of "District Judge" and the "Additional District Judge".
17. The appointment of a District Judges is to be made in terms of Section 5 of the "Ordinance, 1962" by the Government in consultation with the High Court, whereas, appointment of Additiona l District Judges is to be governed by Section 6 of the Ordinance ibid. Though by virtue of sub-section (2) of Section 6, an Additional District Judge shall discharge such functions of a District Judge as the District Judge may assign to him and in the discharge of those functions, he shall exercise the same powers as the District Judge, but it does not mean that in this way an Additional District Judge can assume the status of "District Court" as per contemplation of Section 1 1 of the "Ordinance".
18. While forming above view, I can feel strength from Section 24 of "C.P.C", wherein the Courts of Additional and Assistant Judges have been deemed to be subordinate to the District Court. For ready reference and convenience, Section 24 is reproduced below:-- "General power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer , either re-try it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this Section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes."
(underlying supplied for emphasis)
19. So far the judgment in the case of Abdul Samad (supra) relied upon heavily by the learned counsel for the respondents is concerned, suffice to observe that the principles laid therein are relatable to the powers of the "District Judge" and further assignment thereof in terms of Section 115 of the Code of Civil Procedure (V of 1908), which in the present case is not applicable on account of the fact that the proceedings herein stem out from the "Ordinance, whereby in terms of Section 11, the petition has to be placed before the "District Court". In this context, case of HAJI ABDULLAH THROUGH HIS L.RS. versus MST. GOHAR SULTANA, ETC. (NLR 1985 Civil 87) is quite relevant. The relevant extract from the same is reproduced below:- "Mr. Abdul Ghafoor Mangi the learned A.A.G. as well as Mr. Abdul Hameed learned counsel for the appellant have contended that the learned Additional District Judge has no jurisdiction to proceed with the petition.
On the other hand Mr. M.M.K.A. Zai learn ed counsel for the respondent No.1 has contended that the Additional District Judge has jurisdiction.
Before going on to consider the question involved it would be convenient to reproduce section 11 of Sind Waqf Properties Ordinance, 1979 which reads as under:- "Section 1 1 x x x x x x"
The District Court is a court of general civil jurisdiction for all purposes and under the Sind Waqf Properties Ordinance the District Court is assigned the task of making inquiries into the petitions instituted u/s. 11 of the same Ordinance. Mr. Zai has contended that no court tribunal as such had been created at all and that, on a proper construction of section 11 it ought to be held that the jurisdiction had been conferred on District Court and Additional District Court who continued accordingly to act as such.
Section 11 of the Ordinance provides that a petition be filed to the District Judge within whose jurisdiction the Waqf property or any part thereof is situated. The Ordinance does not provide any powe r to the District Court for transfer of a petition. This Ordinance is a special Ordinance and Civil Procedure Code is not applicable to the Ordinance. In this view of the matter , the order of transfer of the petition to the Additional District Judge, Kotri is bad in law and I order accordingly . Since the petition has not been decided it shall be deemed to be pending before the District Judge, Dadu."
Reference in this context can also be made to Mst. AZIZ BEGUM versus Sheikh NUR MUHAMMAD (ADDITIONAL DISTRICT AND SESSIONS JUDGE, LYALLPUR) AND OTHERS (PLD 1962 (W.P.) Lahore 887), wherein in somewhat similar circumstances, a Full Bench of this Court held as under:- "16. The respondents relied on the following authorities.
Behari Lal Bulaki Ram v. Kundan Lal and another (1) is a case under the Companies Act. On appeal, an objection was raised that the Additional District Judge who had passed the order under section 179 of the Companies Act had no jurisdiction and it was contended that all the orders in the winding up of companies must be made by District Judges.
The relevant part of section 3 of the Companies Act reads as under:- "(1) The Court having jurisdiction under this Act shall be the High Court having jurisdiction in the place at which the registered office of the company is situate: Provided that the Central Government may, by notification in the Official Gazette and subject to such restrictions and conditions as it thinks fit, empower any District Court to exercise all or any of the jurisdiction by this Court conferred upon the Court, and in that case such District Court shall, as regards the jurisdiction so conferred, be the Court in respect of all companies having their registered offices in the district".
The "District Court" has been defined in section 2(6) of the Companies Act to mean the principal Civil Court of original jurisdiction in a district, but does not include a High Court in the exercise of its ordinary original civil jurisdiction. Section 24 of the Punjab Courts Act provides that the Court of the District Judge shall be deemed to be the District Court or principal Civil Court of original jurisdiction in the district. This section and section 21 of the Punjab Courts Act have been reproduced earlier . "Additional Judge" is a part of the District Court. This would clearly show that the Privy Council case, relied upon by the learned counsel for the respondents, has no bearing on the facts of the present case.
17. .......................
18. After carefully considering the langua ge of the Ordinance, the notifications, and the arguments of learned counsel , I am of the opinion that an "Additional District Judge" is not competent to hear appeals against orders of a "Controller" under the Ordinance."
(underlying supplied for emphasis)
20. The nutshell of above discussion is that the term "District Court" used in Section 11 of the "Ordinance" is only relatable to "District Judge". An "Additional District Judge" is alien to the provisions contained in the "Ordinance" and as such powers and functions vested under Section 11 of the "Ordinance" of a "District Court" cannot be bestowed upon him. It is only the "District Judge", who is competent to adjudicate upon the petition under Section 1 1 of the "Ordinance".
21. Resultantly , all these appeals are allowed while declaring the impugned judgments as having been passed without any lawful authority and jurisdiction. As s sequel thereof, petitions under Section 11 of the "Ordinance" shall be deemed to be pending before the learned District Judge, Kasur , who shall decide the same, after holding de-novo proceedings strictly in accordance with law expeditiously and preferably within three months from the date of receipt of instant judgment.
22. The parties shall appear before the learned District Judge, Kasur on 1 1.03.2021.
23. In view of importance of the matter , office is directed to circulate this judgment to all the learned District Judges in the Punjab.