1. HAMOODUR RAHMAN, C. J.--This appeal, by special leave, arises out of a judgment of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, allowing an appeal from an order of the District Judge, Gujrat, declaring under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, that the property sought to be taken over by the Administrator appointed under the said Ordinance by virtue of a notification issued on the 15th of March 1960, though a under the Muslim Law, was not "Waqf property" within the meaning of section 2(d) of the said Ordinance.
2. The property sought to be taken over by the aforementioned of notification was the shrine of Hazrat Shah Daula Sahib of Gujrat, Hamoodur the mosque situated in the precincts of the said shrine, income Rahtnan, CJ from the boxes kept at the shrine and offerings and subscriptions made to the shrine.
3. The petition under section 7 of the Ordinance was filed in a representative capacity by three persons, who described themselves as the Pirzadgan, Garhi Shah Daula, Gujrat and claimed to be the lineal descendants of the saint Hazrat Shah Daula Shah Sahib. According to them, the shrine was built in 1666 by Bhawan Shah, a son of Hazrat Shah Danla Sahib, from out of presents given to him by the followers of the holy saint, who came to offer homage at the shrine. They further alleged that no property or other assets were ever settled on the Dargah nor was there any dedication of any property by any one professing Islam for purposes recognised by Islam as religious, pious or charitable, no Mutawalli or Sajjada Nashin or Amin was ever appointed, but the Dargah or shrine was kept in repair by the lineal descendants of the holy saint from subscriptions received from friends.
4. These lineal descendants claimed descent from three surviving sons of the said Bhawan Shah. The descendants from each son formed a group, called a patti. There were thus three pattis known as Patti Qaim Shah, Patti Azid Bakhsh and Patti Karam Shah. The three petitioners represented each of these pattis respectively. The lineal descendants had also, it was said, divided amongst themselves the days of the year during which eachdescendant would be entitled to collect the offerings made or presents given at the shrine. Each descendant, who thus became entitled to collect the presents was called a Waridar and the number of days on which he was so entitled to collect was settled according to the Shariat.
5. The petitioners contended that the presents and the Charawah income thus received were always treated according to Shariat as their inheritance and even the days of the year allotted to a particular waridar, for, the collection of these presents were treated as a heritable estate from time immemorial. Such income was never used for any charitable purpose and it was well known to all who gave these presents that the waridar, whose turn it was to receive them, took them for his personal benefit. The maintenance of the shrine, the performance of annual ceremonies, as for example urs, etc., were also not made from out of this income but out of special collections made from waridars and other interested persons.
6. In these circumstances, the waridars claimed that neither the shrine nor the income from the shrine was Waqf property within the meaning of the Ordinance. They also challenged the vires of the Ordinance itself and sought a declaration that the properties sought to be taken over by the Administrator, other than the mosque, were not Waqf properties but the personal properties of the lineal descendants of Hazrat Shah Daula Sahib and that all presents made at the shrine and moneys put into the boxes maintained at the shrine were the personal properties of the Waridars.
7. In this petition nothing was said about the "Chuhas" or rat children. It appears that this institution of rat children had its origin in the lifetime of the holy saint himself. Persons, who were not gifted with any issue, sought the sain's intercession and it is said that the first child born due to such intercession was brainless, small headed, long haired and rat faced. Hence the name Chuha. The custom grew up to leave such a child as soon as it was weaned at the Khanqah of the holy saint as an offering to him. The Khanqah maintained such children and became an asylum for such handicapped children. After the death of the Saint a subsequent child was born rat faced if the parents after the birth of the first child neglected to fulfil their vow and offended the spirit of the Saint.
8. In the precincts of the Dargah there is also, it appears from the inspection note of the District Judge, a Mussafirkhana and some other rooms. The houses of the Pirzadgan are outside the wall enclosing the shrine and its inner courtyard which also contains some graves.
9. The same learned Judge, before whom this petition came to be moved, had earlier held, it appears, in another case concerning the shrine of Sain Karam Ilahi of Gujrat that the West Pakistan Waqf Properties Ordinance No, XXI of 1959 was ultra vires the powers of the Governor. During the pendency of an appeal in the High Court from the said order the then Martial Law Administrator, Zone 'B' issued Martial Law Order No, 82 on the 16th of February 1961, which inter alia provided that :- "Notwithstanding anything to the contrary contained in any order, injunction or judgment of any Court, the West Pakistan Waqf Properties Ordinance, 1959, will stand valid in all respects and will not be called in question on any ground or in any manner, in any Court, including the High Court and the Supreme Court."
10. On the basis of this Martial Law Order, the High Court in the case of Inayat Ullah v. M. A. Khan held that the Courts were precluded from questioning the competence of the Governor of West Pakistan to promulgate the impugned Ordinance. Thereafter, the learned District Judge proceeded on the assumption that the Ordinance was intra vires but held that the property sought to be taken over1 was not "Wakf property" within the meaning of the Ordinance.
11. In appeal from this order the High Court took the view that Martial Law, Zone 'B' Order No, 82 had not taken away the jurisdiction which vested in Courts to determine whether or not the West Pakistan Waqf Properties Ordinance XXI of 1959 and the West Pakistan Waqf Properties (Amendment)
12. Ordinance X of 1960 were valid laws. After considering the arguments advanced in support of the attack on the vires of the said Ordinances the High Court came to the conclusion that the Ordinances were not ultra vires. On merits also, the High Court differed from the learned District Judge. It found that both the shrine and the income from the shrine could be dedicated as a valid wakf of a public nature, even if it be assumed, though not admitted, that the appellants now before us were entitled to a part of the income from the shrine. The income from the boxes kept at the shrine was also held to be the offerings at the shrine itself and not personally to the waridars. The appeal of the Chief Administrator of Auqaf was, accordingly, allowed.
13. Leave was granted to the Pirzadgan, as a number of important questions of law of public importance arose for A consideration.
14. Learned counsel appearing in support of this appeal has first of all challenged the vires of the Ordinances themselves on the ground that the Governor of West Pakistan was not competent to promulgate them. His contention is that in so far as some of the provisions of the Ordinances were repugnant to the provisions of some existing Central Laws with respect to subjects in the Concurrent List of the Fifth Schedule to the Constitution of 1956, the Governor of the Province of West Pakistan had no power to legislate by Ordinance in the same occupied field except under the previous instructions of the President. Since neither Ordinance No, XXI of 1959 nor Ordinance No, X of 1960 had been made with such previous instructions, they were both incompetently made and, therefore, of no legal effect.
15. It is true that the preambles to the above two Ordinances do not mention that they are being promulgated after receiving the previous instructions of the President and section 6 of the 8 Ordinance of 1959 is ex facie repugnant to the provisions of section 22 of the Religious Endowments Act, 1863, for, this section itself provides as follows:-- "Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Administrator may, by notification, take over and assume the administration, control, management and maintenance of a wakf property."
16. Again, section 9 says that "notwithstanding anything to the contrary contained in any other enactment for the time being in force, the District Court or the High Court shall not, pending disposal of a petition filed under section 7 or an appeal filed under section 8, have the power to issue a temporary injunction or order restraining the Administrator from taking over or assuming the administration, control, management and maintenance of property in respect of which a notification has been issued under section 6".
17. Section 10 declares that "if there is no appeal the decision of the District Court or when there is an appeal, the decision in appeal shall be final."
18. Section 15 bars the jurisdiction of all civil and revenue Courts and any other authority to question the validity of anything done under the said Ordinance by or at the instance of the Administrator save as expressly provided in the Ordinance itself.
19. Section 16 provides that "every order made and every action taken under this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any document, decree or order of any Court, deed, enactment or any instrument having effect by virtue of any such enactment other than this Ordinance."
20. These provisions no doubt impinged upon the provisions of several other earlier central enactments and even some constitutional provisions, such as the right that a citizen had of coming to the Supreme Court from any order, decree or judgment of the High Court and even purported to nullify decisions of the Supreme Court, although the Constitution of 1956 itself by Article 163 provided that "the law declared by the Supreme Court shall be binding on all Courts in Pakistan" and "all executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." The Ordinance also, in so far as it purported to take away the jurisdiction of the High Courts under Article 170 of the said Constitution of 1956, encroached upon the constitutional right given to a citizen to invoke the writ jurisdiction.
21. It may be mentioned here that Ordinance No, X of 1960 only made some minor changes in the Ordinance of 1959, such as substituting the Chief Administrator for the Administrator, making provision for the appointment of a Deputy or Deputies to the Administrator and giving certain other additional powers to the Chief Administrator to call for returns from persons in charge of wakf properties, issue instructions and directions to them and to utilise the funds of a wakf property for any purpose recognised by Islam as religious, pious and charitable which the Chief Administrator may deem fit.
22. In this appeal, however, we are not concerned with the wider question relating to the validity of these provisions of the Ordinance, for, there can be no doubt that the provisions of the Ordinance, which purported to curtail the constitutional jurisdictions of the High Courts and the Supreme Court or were in conflict with any of the provisions of the Constitution itself, were clearly bad and invalid, for, a sub-constitutional legislation could not amend the Constitution itself. But from this it does not follow that the entire Ordinance must be invalidated, because, some of its provisions were incompetently made. It is only those provisions that can be struck down and not the entire Ordinance.
23. In this appeal the precise question that is before us is as to whether the power purported to be exercised by the Administration of Auqafs for taking over the administration of the shrine of Shah Daula Sahib by the notification issued on the 15th of March 1960, in exercise of powers given by section 6 of the Ordinance of 1959, was validly vested in the Administrator. In other words, we are here concerned only with the validity of section 6 of the said Ordinance which is ex facie repugnant to the provisions of section 22 of the Religious' Endowments Act, 1863.
24. At the time that the impugned Ordinance was made this country was being governed in accordance with the provisions of a supra constitutional measure, called the Laws (Continuance in Force) Order, 1958 (President's Order No, 1 of 1958). This provided that notwithstanding the abrogation of the Constitution of 1956 the country shall be governed as nearly as may be in accordance with that Constitution subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law. This Order continued ali Courts then in existence and vested them with the same powers and jurisdictions which they were exercising immediately before the Proclamation of Martial Law but, of course, subject to the provisions of the Order itself. It reiterated that the law declared by the Supreme Court shall be binding on all Courts in Pakistan but curtailed the power of the High Courts and the Supreme Court to issue writs. This power was henceforth to be confined to the issuance only of writs of habeas corpus, mandamus, quo warranto and certiorari.
25. So far as the Governors were concerned, Article 5 of this Order, to the extent it is relevant for our purposes, declared as follows :- "The powers of the Governor shall be those which he would have had the President directed him to assume on behalf of the President all the functions of the Government of the Province under the provisions of Article 193 of the late Constitution and such powers of making Ordinances as he would have had and within such limitations had Article 106 and clauses (1) and (3) of Article 102 of the late Constitution been still in force."
26. It would thus appear that at that time the Governor of a Province was not, under clause (1) of Article 102 of the Constitution of 1956, empowered to promulgate any Ordinance, if an Act of the Provincial Legislature containing similar provisions would, under that Constitution, have been invalid unless the legislation had received the assent of the President after being reserved for his consideration.
27. Again under Article 106 of that Constitution the scheme adopted was that Parliament or the Central Legislature was to have exclusive power to make laws with respect to any of the matters enumerated in the Federal List set out in the Fifth Schedule and the Provincial Legislature was to have exclusive power to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial List but with regard to the matters enumerated in the Concurrent List both the Parliament and the Provincial Legislature were to have the power to make laws but in the case of the Provincial Legislature this would be subject to the power of the Parliament to make laws with respect to any of the matters enumerated in the Federal List.
28. The said Constitution, by clause (1) of Article 110, also provided as follows :-- "110.-- (1) If any provision of an Act of a Provincial Legislature is repugnant to any provision of an Act of Parliament, which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the Act of Parliament, whether passed before or after the Act of the Provincial Legislature, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Legislature shall, to the extent of the repugnancy, be void.
(2) Where an Act of a Provincial Legislature with respect to any of the matters in the Concurrent List contains any provision repugnant to the provisions of an earlier Act of Parliament or an existing law with respect to that matter, then, if the Act of the Provincial Legislature, having been reserved for the consideration of the President, has received his assent, the Act of the Provincial Legislature shall prevail in the Province concerned, but nevertheless Parliament may at any time enact any law with respect to the same matter, amending or repealing the law so made by the Provincial Legislature."
29. It would be seen from the above that if any Provincial Law impinged upon any provision of an existing law with respect to any matter enumerated in the Concurrent List or any legislation which the Parliament was competent to enact, then the Provincial law would have to yield to the Central law or the existing law, as the case may be, to the extent of the repugnancy, unless it having been reserved for the consideration of the President had received his assent. In the latter event, the Provincial law, notwithstanding the repugnancy, would prevail in the Province concerned, although this would be without prejudice to the power of Parliament to enact any law with respect to the same matter at any time amending or repealing the law made by the Provincial Legislature.
30. The contention advanced on behalf of the appellants is that the provisions of the impugned Ordinance of 1959, in so far as they dealt with Wakfs and religious endowments, were repugnant to the provisions of the Muslim Personal Law (Shariat) Application Act XXVI of 1937, the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 and the Religious Endowments Act, 1863. which were all existing laws within the meaning of Article 218 of the said Constitution of 1956 and they were legislations on subjects which fell in the Concurrent List, Part I, item 1; namely, "matters in respect of which parties in judicial proceedings were immediately before the Constitution Day subject to their personal Law and trusts and official trustees."
31. Section 2 of the Shariat Act, 1937 declared as follows :- "2. Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law marriage, dissolution of marriage, including talaq, ila, zihar khul'a and niubara'at, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
32. This Act was, however, applicable to a person resident in a Province of India only if he had in a prescribed form filed before a prescribed authority declared that he desired to obtain the benefit of the provisions of section 2 quoted above. These provisions were made applicable to the Punjab by the West Punjab Muslim Personal Law (Shariat) Application Act No, IX of 1948 which received the assent of the Governor-General on the 15th March 1948. It substantially re-enacted the provisions of section 2 of the Act of 1937 and made them applicable to both testate and intestate succession as also to agricultural lands. It would thus appear that so far as the Punjab was concerned the Shariat Law was applied to all Muslims only under the provisions of a Provincial Act and not under the Central Act of 1937. There is, of course, nothing on the record to show that any of the appellants had, at any time, prior to 1948 opted to be governed by the Shariat Act of 1937. There was thus no question of any repugnancy with the Central Shariat Act of 1937. If the provisions of the Ordinance were, in any way, repugnant to any law, they were repugnant to the Provincial Shariat Act of 1948, but it is argued that since this Act was an existing law dealing with a subject in the concurrent list the Governor had no power to enact any law repugnant to its provisions, at the relevant time, without the previous instructions of the President.
33. So far as the Religious Endowments Act of 1863 is concerned, it must also be conceded that religious endowments are a species of trusts which is a generic description comprising all kinds of trusts including religious endowments. The preamble of this Act shows that it was designed to relieve the Boards of Revenue and the local agents in Bengal from duties imposed upon them by the Bengal Charitable Endowments, Public Buildings and Escheats Regulation (Bengal Regulation No, XIX of 1810) "for the due appropriation of the rents and produce of lands granted for the support of mosques, Hindu temples, colleges and other purposes; for the maintenance and repair of bridges, sarais, kattras and other public buildings; and for the custody and disposal of nazul property or escheats", so far as those duties embraced the superintendence of lands granted for the support of such institutions. It was not, therefore, a legislation in respect of trusts and trustees in general but only in respect of particular kinds of trusts which fell more appro-priately within the description of religious endowments.
34. Now the exclusive power to legislate in respect of religious Endowments and wakfs was given by the Constitution of 1956 to the Provincial Legislatures by items 65 and 69 of the Provincial List in the Fifth Schedule. These items read as follows :- "65.--Charities and charitable institutions; charitable and religious endowments.
35. 69.--Wakfs and mosques."
36. In the circumstances, it is contended with some force by the learned Advocate-General appearing on behalf of the respondent that after the Constitution of 1956 came into force religious endowments and wakfs were subjects of legislation within the exclusive competence of the Provincial Legislatures and, therefore, the Ordinance of 1959 could legitimately make amendments even in the existing laws or enact provisions which were repugnant to the provisions of the Acts of 1948 and 1863.
37. On behalf of the appellants, on the other hand it is argued that having regard to the scheme of the Constitution of 1956 it must be held that the legislative lists in the Fifth Schedule thereof had been arranged in a definite order of priority, namely, the Federal List, the Concurrent List and the Provincial List. Thus since Parliament alone had the power to legislate in respect of subjects contained in the Federal List, a Provincial Legislation, even if it incidentally touched upon an Act of the Federal Legislature in respect of any item in that List, would be ultra vires. Similarly, legislation on any item in the Concurrent List, if already dealt with by the Federal Legislature or an existing law, would be outside the legislative competence of the Provincial Legislature and of the Governor of the Province. Therefore, if the Religious Endowments Act was an Act in respect of trusts and trustees and if the West Punjab Muslim Personal Law (Shariat) Application Act of 1948 had provided that the rule of decision in respect of "religious usages or institutions including wakfs, trusts and trust property" shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims then no Provincial Ordinance could be made in respect of anything which came within the ambit of trusts and trust property or wakfs or religious institutions for laying down a different rule of decision or making any contrary provision without the previous instructions of the President, for, under Article 110 of the Constitution of 1956 the Provincial Legislature itself would have been competent to legislate in respect of such a subject only if the Bill was reserved for the consideration of the President and did actually receive his assent.
38. We are, however, unable to accept this argument, for, we cannot overlook the fact that from the very nature of things it is inevitable that there will be some amount of overlapping of subjects in the lists, for, no clear-cut distinction between the scope and content of the various items enumerated in the lists is always possible if a purely literal meaning is given to the words employed to describe these items. In this respect one cannot fail to appreciate the wisdom of the observations of Sir Maurice Gwyer, C. S. in the case of Subramanyan Chettiar v. Muttuswami Goundan to the following effect :- "It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance determining whether it is legislation with respect to matters in this list or in that."
39. These observations were quoted with approval by the Judicial Committee of the Privy Council in the case of Prafulla Kumar Mukherjee and others v. Bank of Commerce Limited, Khulna and it was explained that in spite of the care taken to define as accurately as possible each one of the items enumerated in the three lists in the Government of India Act of 1935, overlapping of subject-matter could not be avoided even by the device adopted therein of having a Concurrent List, as was done also by the Constitution of 1956. Where such an overlapping does appear to have occurred, two questions have to be decided, namely; (i) as to what in pith and substance is the effect of the enactment of which complaint is being made and (ii) in what list is its true nature and character to be found.
40. To quote the Judicial Committee: "No doubt where they come in conflict List I has priority over Lists III and II and List III has priority over List II, but, the question still remains priority in what respect?
41. Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of the Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character? In their Lordships' opinion the latter is the true view."
42. Our own Federal Court also in the case of Muhammad Yusuf v. The Crown quoted with approval the following observations of the Judicial Committee in the case of the Citizen Insurance Company of Canada v. Parsons :- "In these cases it is the duty of the Courts, however, difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters falling within these classes of subjects exists in each Legislature, and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result, the two sections must be read together and the language of one interpreted, and, where necessary, modified by that of the other. In this way it may, in most cases, be found possible to arrive at a reasonable and practical construction of the language of the sections, so as to reconcile the respective powers they contain, and to give effect to all of them. In performing this difficult duty it will be a wise course for those on whom it is thrown, to decide each case which2 3 4 5 arises as best they cm, without entering more largely upon an interpretation of the statute than is necessary for a decision of the particular question in hand."
43. In a federal constitution, in which an elaborate division of legislative powers is attempted, it is inevitable that controversy should arise whether one or the other Legislature is encroaching on the other's legislative field, for, no matter how careful the draftsman or how exhaustive the legislative lists it is not possible to provide for all conceivable eventualities or to categories each subject of legislation under a specific label. It is for the resolution of such controversies that the Courts have evolved certain basic tests. A careful examination of the relevant decisions indicates that the main principles deducible from them are :-- (i)That legislation, the validity of which has to be tested, must be scrutinized in its entirety in order to determine its true character in pith and substance. (Great Saddelory Co. Ltd. v. The King AIR 1921 P C 148.
44. (ii)That after considering the legislation as a whole in pith and substance it has to be seen as to with respect to which topic or category of legislation in the various fields, it deals substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way. (Subrahmanyan Chettiar v. Muttuswami Gourdan AIR 1941 FC 47).
45. (iii)That none of the items in the lists is to be read in a narrow or restricted sense and each general word therein should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be com-prehended in it. (United Provinces v. Atiqa Begum AIR 1941 FC 16).
46. (iv)That where there appears to be apparent overlapping in respect of the subject-matter of the impugned legislation it must first be considered whether a fair reconciliation cannot be effected by giving to the language of the federal and concurrent lists a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it. (Governor-General-in- Council v. Province of Madras AIR 1945 P C 98).
47. (v)That a general power ought not to be so construed as to make a particular power conferred by the same Act and operating in the same field a nullity. (In re: C. P. Motor Spirit Act AIR 1939 FC 1).
48. Applying these tests to the Ordinances before us we find that they are in pith and substance legislation for taking over the management and control of certain kinds of wakfs relating to religious or charitable institutions for the better provision of the institutions themselves. They do not purport to interfere with private wakfs or trusts nor do they seek to divest the trustees and/or mutawallis or for that matter any private beneficiary of his rights, if any, in such wakfs or trusts.
49. Indeed if the distinction drawn by the Privy Council in the case of Vidya Varuthi v. Balusami , is kept in mind it may even be said that the Ordinances do not legislate in respect of trusts or trustees at all.
50. So far as "matters in respect of which parties in judicial proceedings were immediately before the Constitution Day subject to their personal law" are concerned it appears that from 1934 onwards the Provincial Legislatures in India had been legislating with regard to wakfs in Bengal, the United Provinces and Bombay vide the Bengal Wakf Act, 1934; the United Provinces Muslim Wakfs Act, 1936 and the Mussalman Wakf (Bombay Amendment) Act, 1935.
51. In any event applying the rule of reconciliation we would be justified in giving a restricted meaning to the words of item 1 of the Concurrent List so that they can reasonably relate to allied subjects other than those particular subjects or species of subjects mentioned in the Provincial List and, therefore, the general power of legislation given by the Concurrent List does not invalidate provincial legislation with regard to a particular item in I the same general field which was taken out of the general field and placed within the exclusive legislative competence of the Provinces, As from the date of the coming into force of the Constitution of 1956 wakfs and religious endowments became provincial subjects and existing laws with regard to them could no longer be treated as6 laws on a subject in the Concurrent List.
52. Apart from this we are also of the view that when a subject-matter of legislation is capable of falling under two items in two different lists, then, if there is an item in a particular list which deals specifically with that particular subject of legislation, it must follow that the legislation is within the competence of the Legislature which can deal with that specific item, notwithstanding the fact that there may be a more general item which can on a verbal interpretation cover the specific item also. The rule, according to us, should be that where there is an express item in a particular list, then that should be preferred. In our view, therefore, trusts and trustees and matters in respect of which parties are to be governed by their personal law in the Concurrent List would cover all kinds of trusts and/or subjects other than those mentioned in items 65 and 69 of the Provincial list, for, these matters from 1956, at any rate, came within the exclusive competence of the Provincial Legislature.
53. It remains now only to point out that most of the above discussion has now become academic in view of the fact that the Ordinances of 1959 and 1960 have now been repealed and re-enacted as the West Pakistan Wakf Properties Ordinance No, XXVIII of 1961. This latter Ordinance was made after the promulgation of the President's Order No, XVII of 1959, Legislative Powers (Amendment)
54. Order, 1959, which abolished the Provincial List and transferred all matters enumerated in that list in the Constitution of 1956 to the Concurrent List but since this latter Ordinance was made with the previous instructions of the President, it was competently made under clause (i) of Article 102 of the Constitution of 1956. There can be no question now regarding the vires of this Ordinance.
55. Learned counsel for the appellants has, however, sought to argue that this Ordinance could not be given retrospective effect from the 17th of April 1959, which was the date on which Ordinance No, XXI of 1959 itself came into effect. This argument overlooks the provisions of subsection (2) of section 22 of the Ordinance of 1961 itself which provides as follows:- "22(2).--Everything done or purported to have been done, action taken, liability or penalty incurred or proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made or order issued under any of the provisions of the enactments repealed under subsection (1), shall be deemed to have been validly done, taken, incurred, commenced, appointed, authorised, conferred, made or issued, and shall, if not inconsistent with the provisions of this Ordinance, be continued, and so far as may be, be deemed to have been done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance."
56. The Ordinance has, therefore, not only been given retrospective effect but it has also validated all that was done under the provisions of the previous Ordinance.
57. There is, in our opinion, no substance in either of the above contentions of the learned counsel for the appellants. This Court has already held in the case of Muhammad Yusuf v. Chief Settlement and Rehabilitation Commissioner that Article 2 of the Constitution of 1962 cannot be construed as conferring a fundamental right upon every citizen of Pakistan to the effect that no law shall be made by any established Legislature in Pakistan which expressly operates retrospectively or retroactively against his interests. The view that has prevailed in this Court is that a Legislature in Pakistan, whether Provincial or Central, is a sovereign Legislature within its own field and if it has power to legislate with regard to a particular subject, then it has power to legislate both prospectively and retrospectively subject, of course, to the provision that where a vested right is to be taken away that can only be done by express words or necessary intendment of the statute.
58. We have already come to the conclusion that the Ordinance of 1961 was competently made with the previous instructions of the President and if the President had himself agreed to the statute taking effect retrospectively it cannot be urged that the statute comes into operation only from the date of the Instructions. This is not a case of anybody doing anything indirectly which he could not do directly. The dictum laid down in the case of Gobinda Sellappah Nayar Kodkan Pillai v. Punchi7 Banda Mudanayake and others , relied upon by the learned counsel for the appellants, has no application in this case.
59. As already pointed out, the Ordinance of 1961 was not only made to take effect from April 1959, but section 22 of the Ordinance also validated everything done or previously done under the Ordinance of 1959 if it was, in no way, inconsistent with the provisions of the Ordinance of 1961. No such inconsistency has been pointed out. Therefore, the effect of subsection (2) of section 22 is that notwithstanding the repeal of the Ordinances of 1959 and 1960 the notification of 1960 for the taking over of the shrine issued by the Chief Administrator of Auqaf must be deemed to be a notification issued in accordance with the provisions of the Ordinance of 1961 and, therefore, is now immune from attack, as the Ordinance itself was competently made in accordance with law. In our view, the provisions of the Ordinance of 1959 relating to the taking over of the administration of wakfs, were not hit by the provisions of Articles 102 and 110 of the Constitution of 1956 and, therefore, no question of trying to legalise the above by retrospectively legislating with the previous instructions of the President arises in this case.
60. Since we are ' not concerned here with the validity of the other provisions of the Ordinance, we refrain from expressing any view one way or the other with regard to them The next contention of the learned counsel for the appellants is that even if the Ordinances were valid, the shrine and the income from the box maintained there were not "Wakf property" within the meaning of the Ordinance. Wakf property has been defined in section 2 of the Ordinance as follows :--
(d) `Wakf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property or any Wakf such as is described in section 3 of the Mussalman Wakf Validating Act, 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.
61. Explanation 1.--If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf.
62. Explanation 2.--Property allotted in lieu or in exchange of Wakf property left in India shall be deemed to be Wakf property.
63. Explanation 3.--Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Wakf property shall be deemed to be Wakf property.
64. Explanation 4.--The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property.
65. Explanation 5.--Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes.
66. Explanation 6.--Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Durgah, or other shrine shall be deemed to be Waqf property."
67. In the present case, there is no dispute that the Mosque attached to the shrine is a public Wakf but it is contended that no Wakf was or could be created of the shrine and the adjoining hujras.
68. Therefore, the Legislature cannot by giving an artificial definition bring a subject within the ambit of the definition, although it would otherwise not have been within it. A shrine, it is further urged, is not a religious institution at all, and in support of this contention reference is made to a decision or a learned Single Judge of the High Court of Lahore in the case of Wilayat Shah v. Sardara and others . There Cornelius, J. (as he then was) took the view that a Khanqah, which was no more than a pucca grave situated in a communal graveyard, which may have existed from before the Khanqah itself, was "essentially private property" in the sense of an "institution which is managed by members of the family of the founder so that the right of managing the property, the right of8 9 receiving offerings, the right of initiating and instructing disciples, the right of holding an urs, etc., devolve upon particular persons."
69. With due respect I am constrained to observe that a Khanqah and a Dargah are not the same kind of institutions. As has M been pointed out by Amir Ali in his Book on Mohammadan Law, Vol. I, Chapter X, "public and quasi-public Wakfs", Khanqahs sprung up in India in the following manner :- "A Darwesh or a person who, by leading a pious life, has won the esteem and veneration of the neighbourhood, or a Sufi of a particular sanctity has settled down in some locality. So long as he has not attained sufficient importance, his place of abode is called a Takia. But when he is a man of importance or has attained sufficient eminence, it is designated as Astana. His pious life and religious ministrations attract public notice, disciples gather round him, and a place is constructed for their lodgement. And the humble Takia grows into a Khanqah. After the death of the holy personage the spot where he is buried becomes a shrine and an object of pilgrimage not only for his disciples but for people of distant parts, both Mohammadans and Hindus, and is designated either as a Dargah or Astana or Rouza."
70. (Vide also Khawaja Md. Hamid v. Mian Mahmud and others , A Khankah is thus a place where religious devotees are lodged and fed during the period they are congregated there for religious Instructions and devotional exercises. Ameer All includes these as well as Rouzahs and Dargahs in the same category of subjects of Wakf as Mosques and Imambaras in which "the rich and the poor, the affluent and the indigent, are equally entitled to participate". These, it would appear, thus stand on the same footing as mosques, Mussalas (prayer grounds), graveyards and Imambaras.
71. Accordingly, if such an institution is intended to be visited by any member of the public, who feels attracted towards joining in the instructions or devotional exercises, or to perform pilgrimages to such a place, then the institution would become a public Wakf in the same way as a mosque would become a public Wakf, if once it is established that prayers are habitually offered therein by the public with Azan and Ikamat. If a Pies tomb or Dargah is thus accessible to the public at large without any restriction then proof of such user would establish the nature of the institution. It may also be mentioned here that it is customary at a shrine to observe the annual `Urs' ceremonies of the Saint, celebrate the birth-day of the Holy Prophet (peace be upon him), perform other rites and ceremonies, have recitations from the Holy Quran, offer fateha and also recite 1Va'ats or Qawwalis in some shrines. this does not, however, mean that there cannot be a private shrine where only the members of a particular family or sect are entitled to congregate or to offer fateha but this will depend on the proof of its user or upon the interpretation of the terms of the dedication, if any.
72. There can be no doubt that a shrine may be a valid object of Wakf, for, the offering of fateha at the tomb of one's ancestor or a saint is permissible, vide Piran v. Abdul Karim and Khawaja Md. Hamid v. Mian Mahmud and others. In the latter case there was no formal dedication or any direct evidence of the creation of a Wakf but the Judicial Committee held that since "the tomb and its adjuncts have been used and recognized for upwards of half a century as a place of pilgrimage and as the home and centre of the religious and educational community founded by the saint" it would be reasonable "to infer a dedication".
73. The evidence in the present case shows that Hazrat Shah Daula Sahib was himself a very benevolent and charitable person and had in his own lifetime attained such eminence that a large number of disciples had gathered around him. A Khanqah thus came into being in his lifetime for the lodgement of his disciples and others who came to receive religious instructions from the holy saint (vide quotations in trial Court's judgment from "Khazinatul-Asfia", "Karamat Namah" and Ellistt's Chronicles of Gujrat). Some of them were even lodged and fed there. Since his demise also the evidence is uniform that the Sajjadanashins (originally there were) or Pirzadgan (as they are now called) had been maintaining the same practice and the members of the public, without any distinction of sect or religion, have been visiting his shrine and participating in its religious10 11 ceremonies. So far as the shrine and the mosque are concerned, there can, therefore, be no manner of doubt that they could be valid objects of Wakf even according to the Shariat Law and the manner of their user, in the present case, from time immemorial would seem to indicate that they were treated as religious institutions to which the members of the public at large, rich or poor, affluent or indigent, had equal access without any restriction whatsoever in the same manner as they would have had access to any other place of public worship or pilgrimage.
74. The next contention that since there is no evidence of dedication in the present case there is no Wakf, is clearly untenable, for, if it is accepted, as indeed it is, that the shrine has been in exis tence, from 1666, then the unrestricted public user of the place for more than 300 years is, in our opinion, quite sufficient to presume a dedication. The law, no doubt, looks to the intention of the dedicator but where he is dead and has left behind no document or written word from which his intention may be gathered it would be permissible to look to his conduct, the conduct of his successors-in- interest, the nature of the object sought to be achieved and the kind of institution set up for that purpose and the manner of its user since. If a man builds a mosque on his own land and permits the public to use it as a place of worship and it continues to be used as such even after his death for a sufficiently long time, then the only inference possible is that he intended to dedicate this land for the purposes of a mosque. To establish a Wakf it is not necessary to use any particular kind of words or to adopt any particular form of transaction. If the founder of the institution suffers the members of a particular community or the public at large to use a premises without interruption for a religious or pious or charitable purpose for any sufficient length of time, then under the Shariat Law dedication will be presumed. As in the case of mosque a saint's tomb or shrine may also become a Wakf by immemorial user; vide Said Maher Hussain v. Haji Ali Muhammad . In this case too there was a mosque close to the tomb. It was referred to in a deed of 1736. There was no evidence as to whether it was built before or after the death of the saint but the Bombay High Court held that "it must be presumed that rouza and mosque have been duly dedicated and have become Wakf by user, and the presump-tion may fairly be extended to the other buildings and the land enclosed within the compound wall which may be regarded as appurtenant to the rouza".
75. The position appears to be much the same in the present case. The mosque and the dargah are situated within the same compound and the uniform evidence of all witnesses is that for over 300 years prayers are being offered by the Muslim public in the mosque and devotees have been visiting the shrine, offering fatehas, praying, invoking the intercession of the saint and participating in the ceremonies and other religious functions performed there without any hindrance. Pilgrims have also, it is said, been staying in some of the hujras situated within the compound while some other hujras have been in use for purposes connected with the ceremonies performed at the shrine. Cannot in these circumstances the same inferences be drawn as in the Bombay case ? It seems to us that where the shrine is of a Saint, Pir, or other venerated holy person and it has from time immemorial been treated as a place of pilgrimage by devotees who are accustomed to perform or participate in religious ceremonies performed there then it will be difficult to resist the inference that the place has been dedicated for such a purpose.
76. The next question that arises for consideration is whether the income collected by the Pirzadgan from out of the offerings made at the shrine can be treated as wakf, because, it is not strictly speaking income arising out of the user of the corpus of the property, but consists of donations voluntarily made by devotees or pilgrims visiting the shrine. It is urged that in order to constitute a wakf of such income there must be something to show that the donors of these donations not only intended them to be used for religious, pious or charitable purposes but, in order to bring them within the ambit of the Ordinances, to also show that these donors were all Muslims. There is, in this case, no direct evidence of the intention of the donors nor is there any deed of dedication to assist us in determining as to who were entitled to these offerings. The Pirzadgan, of course, claim that if12 we have to go by user, then the consistent evidence is that from time immemorial they had been utilising the offerings, which were made both by Muslims and non-Muslims, as their personal property and as their rightful inheritance.
77. In support of this contention reliance has been placed on the decision of the Privy Council in the case of Syed Altaf Hussain and others v. Diwan All Rasul All Khan and others relating to the Dargah Sharif at Ajmer. In this decision the Judicial Committee accepted "the practice which has been followed by the successive Diwans and Khadims in respect of the distribution of the offerings" in this shrine and held that the offerings at this shrine were divisible into three categories ; namely,
(i) offerings intended for use at the shrine itself, such as Chadars, Kabar Posh, gold and silver utensils, etc., (ii) cash offerings in boxes and (iii) offerings in small coins and articles less than eight annas in value. The Judicial Committee held that the first category of gifts belonged to the shrine and were wakf property. The second category belonged to the Sajjada Nashin as a concomitant of the right attaching to the office according to the practice followed at the said shrine and the last group went to the Khadims.
78. In the next case of Ahmad Ashraf and others v. Murtaza Ashraf and others it appears that the Oudh Chief Court also held that the right to receive offerings was a right which vested in the Sajjada Nashin and they became his personal property but this was on the basis of Mr. A. F. Millet's report on the settlement of Fyzabad District which seemed to indicate that one of the villages was a personal present to the founder Shah Makhdoom Saheb, whose dargah was situated there, by one Darpan Nath and the other village was taken possession of by force by one of his descendants from another Hindu. Similarly relying on Mr. Millet's report it was also held that the charhawa at the shrine went to the makhdoom zadagan according to the practice followed at this shrine.
79. Learned counsel maintains that the Shariat Law is also to the same effect and the nazar and niaz offered at a shrine is intended for the descendants of the saint and for the khadims of the shrine. It forms their personal property. We have been handed over a compilation of the views of some 55 Ulemas of the Ahal-e- Sunnat Jamaat to show us that according to the Ulemas also all the nazar and niaz which is daily offered at a Dargah, is to be divided between the descendants of the saint enshrined there and the khadims of the shrine, so far so that even if any property is dedicated for the maintenance of the shrine itself the descendants of the saint and the khadims at his shrine will also be entitled to be maintained out of it if the daily offerings be not sufficient.
80. Tyabji, however, in his book on Muslim Law (4th Edn.), at page 541, opines that "Nazrana or offerings given at a shrine or dargah either in a ghalla (offering box) or otherwise, may become consecrated to God, or impressed with a trust, in which case they must be used for religious or pious purposes.
81. The reason given in support of this view is that "the offerings are often made in the belief that there is religious merit in making them" and that "they are generally invited by representations (express or implied) that they will be utilized for religious or charitable purposes".
82. It seems to us, however, that so far as this sub-continent is concerned, this question is governed largely by the usage or custom followed at each shrine, although the practice has, more or less uniformly, been for the Sajjada Nashins to maintain themselves out of the income of the shrine whether they be from offerings or from property dedicated for the maintenance of the shrine. The basic principle, however, is that the offering is made to the holy saint buried at the shrine as a homage of the devotion of the offer and this is done in the belief that if the offering is accepted, the offer will be rewarded by the saint, who will intercede on his behalf with Allah and will pray for his salvation and deliverance. The nazar is generally also made in respect of some fulfilled prayer as a thanks-giving. It is also said that nazar made to a saint in his lifetime is universally accepted as being his personal property. The mere fact that he is dead does not, therefore, it is contended, alter the nature of the gift or nazar, for, the offerings are made in the generally accepted belief that13 14 saints live even after physical death. If such nazars became his property when offered before death they would continue to be his property even when made after death and can be taken by his descendants or those who perform services at his shrine. There may also well be cases in which personal gifts are made to the descendants of the saint by devotees. In the latter event such gifts will of course be their personal property. No general rule, it appears, therefore, can be laid down, for, it will depend upon the practice followed at a particular shrine. It is equally possible that there may be a shrine where the sajjada nashin takes nothing and all the offerings are spent either for the maintenance of the shrine or for other religious, pious or charitable purposes, such as the recitation of the Holy Quran, the performance of the annual Urs, distribution of alms and distribution of fond from the Langar Khana. In such cases where the income from offerings has been spent, from time immemorial purely for charitable purposes it may well, be presumed that a Wakf was created even of the income.
83. The position of the Khadims would, in our opinion, be somewhat different, for, as the word itself signifies, they are servitors and they would normally only be entitled to tips or rewards for service rendered. If they do not perform any service, then they would perhaps not be entitled to any tips nor would those who do not perform services be entitled to share in the tips merely by the accident of birth, even though the right to render such service at a shrine may be limited to a particular family or clan.
84. It will not, in our view, therefore, be correct to lay down, as a general proposition, that there can never be a valid Wale in respect of the monies collected at a shrine, for, it is not R correct that wakf of cash is opposed to the canons of Islamic Law. The decision in the case of Abdul Hamid Qureshi v.
85. Ch. Fateh Muhammad Sheifta , which has been referred to by the learned counsel for the appellants, does not support the proposition that there can be no valid Wakf of cash. In fact, the view held in that case was that "a practice does exist of making wakfs of cash and that even according to the rule enunciated by Imam Muhammad whose opinion is admittedly to be preferred to Imam Abu Hanifa and Abu Yusuf, such wakf should be declared valid".
86. Amir Ali in his book on Mohammadan Law, First Volume, Chapter X, section 6, has dealt with this subject more exhaustively and has pointed out that the wakf of dirhams (money) is quite valid, for, wakfs can be created of any property which is capable of being possessed or being reduced to possession.
87. Even according to Shariat Law, therefore, the income received from offerings at a shrine could be a valid subject- matter of wakf but in the present case the alternative contention advanced on behalf of the appellants is that having regard to the practice of the Pirzadgan in the case of the income from offerings received at this particular shrine the income from the boxes was personal heritable property, and if in the absence of any evidence of dedication we are to be guided by user only, then the consistent evidence of user here clearly negatived the existence of any wakf with regard to this income. The income from the boxes was not, therefore, wakf property at all.
88. Learned counsel has drawn our attention to the evidence in this case to show that the Pirzadgan or the Waridars had, from time immemorial, been appropriating the income from the shrine for their own use and had out of such income acquired properties which they were selling and mortgaging as if they were their own properties. There is no doubt that the evidence of user in this case shows that from time immemorial the descendants of Hazrat Shah Daula Sahib treated this income as their personal property and appointed terms for receiving this income by each of the male lines from the surviving descendants of Bhawan Shah, the only son of the holy saint. There is also evidence to show that the properties which presumably were created out of this income had been from time to time sold, mortgaged and mutated in their names. Does this, however, make this income a private property or Wakf Alal Aulad ? Learned counsel for the respondent has contended that mere misappropriation of wakf funds, for, however, long that might have been done, would not15 disprove the existence of the wakf itself. We have, however, in the absence of any evidence of dedication to look to the nature of the fund at its inception and the manner of its utilization in order to determine its true character. There is no evidence of the intention with which any particular donor or devotee or pilgrim made his offerings. In fact the evidence is that all expenses for "urs" and other ceremonies were met by the Pirzadgan and all offerings at the shrine were throughout treated as the personal and heritable income of the respective waridras. 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 as wakf. The consistent practice in this institution was to treat them 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 wakf, 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 wakf. In this view of the matter no question also arises of these being private or mixed wakfs within the meaning of section 3 of the Mussalman Wakf Validating Act, 1913, which have been excluded from the definition of a wakf under the impugned Ordinances. If it is a wakf then it is wakf created by operation of law which is not excluded from the mischief of the Ordinance.
89. The question, however, still remains to be considered as to whether such income from offerings at a shrine could be turned into wakfs by a statutory provision as has been done by Explanation 4 appended to section 2(d) of the Ordinance of 1961. If a wakf could under the Shariat Law be made of property of this nature, as we have earlier pointed out, then we can see no valid objection to the Legislature impressing them with such a character and depriving those who were hitherbofore appropriating them as their personal income or property. The Legislature had undoubtedly power to do this, particularly, where the intention of the donor was not clear although basically the offerings were made for a religious or charitable purpose. From the date of the coming into force of the Ordinance, therefore, this income has become wakf property which can be taken over by the Administrator.
90. In saying this, however, we must make it clear that this would not entitle the Administrator to ask for any account of the offerings made before the date of his notification or take over the properties, if any, acquired out of them. Nor would this entitle the Administrator to prevent any pilgrim or devotee making any personal nazar to any Pirzadgan, if he wishes to do so. The Administrator will only be entitled to collect whatever is put into boxes placed at the shrine and only such other offerings and subscriptions which are made expressly for charitable purposes. The onus will be upon him in the latter case to prove the intention of the donor. The Administrator will also not be entitled to prevent the Pirzadgan from entering the shrine through their private door or passage.
91. In this connection we would also like to point out that the taking over of the management of a wakf institution under the Ordinance of 1961 does not entitle the Administrator to put an end to the practices hitherto fore followed or observed at the institution taken over. As was held by this Court in the case of Inayatullah v. M. A. Khan , the Ordinance gives no power "to impose a ban on a user which had existed before the wakf property was taken over". Under the Ordinance "it is the duty of the Chief Administrator to carry on the user of the wakf property for the purpose for which it was dedicated or for which it had been used". He has no "power to upset practices claimed to be of a religious character established in the past" unless he can show that the observance of such a practice would amount to a misuse of the property "according to all sects of Islam". Thus if it has been the established practice at this shrine for the Pirzadgan to perform the annual urs or to16 introduce devotees at the shrine for the purposes of "Salam" or to perform any other religious function then we hope that the Administrator will not prevent them from performing or participating in such functions in the same manner as they used to do in the past even though he may not bear the expenses thereof. We sincerely hope that a modus vivendi will be soon evolved in which the Pir-zadgan will co-operate with the Administrator in producing an atmosphere of harmony and willing participation in all ceremonies.
92. With these observations, however, we are of the opinion that this appeal must fail for the reasons given above. It is, accordingly, dismissed but we make no order as to costs, as the questions of law which arose for consideration were not free from doubt. PLD 1961 Lah. 536 1940 FC R 188 AIR 1947 P C 60 PLD 1956 FC 395 (1881) 7 A C 96 (1921) 48 I A 302 PLD 1968 SC 101 PLD 1953 P C 51 PLD 1949 Lah. 249 AIR 1922 P C 384=50 I A 92 I L R 19 Cal. 203 AIR 1934 Boni. 257 AIR 1938 P C 71 AIR 1935 Oudh 299 PLD 1958 Lah. 824 PLD 1964 SC 126