' Facts necessary for the disposal of the present writ petition may be briefly stated. Agricultural land measuring 4,425 Kanals and 11 Marlas attached to Waqf Yasinee, Jhang, was leased out to the petitioners. Their highest bid at the rate of Rs, 32,125 per annum was accepted by the Chief Administrator Auqaf, West Pakistan. The lease was for a period of three years commencing from Kharif 1962 to Kharif 1965. Detailed terms relating to auction of the Waqf Property are available in Annexure `E' at page 87 of the present file. The petitioners, after the lease hold rights were auctioned in their favour, executed Ahed Nama (Annexure `D') in which the terms of the lease have been embodied. The possession of the demised land was given to the petitioners by the Manager, Auqaf District Jhang on 4th May, 1962 as is evident from Annexure 'C'. The petitioners paid a sum of Rs, 25,625 in all to the Auqaf Department. The demand notice for Rs, 70,750 was issued for its recovery as the arrears of Land Revenue from the petitioners.
2. The petitioners have filed the present writ petition under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 paying that the recovery of Rs, 70,750 as arrears of land revenue from them is without lawful authority and the demand and consequent recovery be declared to be illegal. It has been prayed that a direction in the nature of appropriate writ be issued to the respondents restraining them from making the said recovery, through coercive process.
3. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioners has contended that actual possession of the land was not given. Only constructive possession of the leased property was delivered to the petitioners under order, dated 28th May, 1962. The aforesaid Waqf land was in possession of the tenants for a long time prior to the lease.
The tenants in occupation were hostile to the Auqaf Administration and were actively helped by one Sh. Mumtaz one of the descendants of the original waqif. The said Sh. Mumtaz actively instigated the tenants not to deliver possession to the lessees, so much so, proceedings were initiated against the Chief Administrator of Auqaf by Sh. Mumtaz for declaring the waqf land to be non-trust property. In view of this attitude of Sh. Mumtaz and the tenants, the lessees experienced great difficulties in obtaining even constructive possession of the property. Several suits are stated to have been filed by the said tenants which involved the present persons in expensive litigation. It is stated that the authorities of the Auqaf Department did not help the petitioners to obtain crops from the tenants. Thereafter, due to political affiliation of the petitioners and their cousin brother who was elected to the electoral college, they were put to enormous hostility at the hands of District/Local Administration. This all went in favour of the tenants who became defiant and did not give the share of produce to the petitioners. On these and similar other grounds which have been fully detailed in the writ petition, the petitioners claimed that the demand made was wholly unjustified. It has also been contended that the respondent received rent of the houses and shops numbering about 55 included in the lease under reference from the beginning. The houses and shops yielded an yearly rent of Rs, 9,084 at the rate of Rs, 757 per month. A sum of Rs, 27,258 as rent has, therefore, been illegally realized by the Auqaf Department from the tenants which amount really was due to petitioners. Proceeding further, learned counsel for the petitioners has contended that the demand of Rs, 70,750 being realized as arrears of land revenue cannot be so recovered unless the liability has been properly determined in accordance with law by filing a civil suit, for there is no provision in the Waqf Property Ordinance, 1961 empowering the authorities working thereunder to determine the dues unilaterally. If the authorities under Waqf Ordinance are allowed to determine the liability in this manner, it will make them virtually a judge in their own cause.
4. Learned counsel for the Auqaf Department, Mr. Riaz Ahmad Kiani, has submitted that the land, subject-matter of lease, which vested in the Auqaf Department was given to the petitioners on payment of Rs, 32,125 per year. The lease period commenced from Kharif 1962 and ended with Kharif 1965. Actual possession as is evident from Annexures 'B' and 'C' was delivered to the petitioners. The terms of the lease are fully reflected in Annexure 'D'. It has been submitted that any dispute between the tenants and the petitioners was not the concern of the lessor namely, Auqaf Department. If there was a default in payment of rent by tenants as alleged by the petitioners, the petitioners were entitled and free to take recourse to Court of Law for getting the necessary relief.
As regards the fact that certain houses and shops were also included in the lease, the learned counsel has pointed out that only agricultural land measuring 4,525 Kanals and 11 Marlas attached with Waqf Yasinee was given on lease and no houses and shops were included therein. This is evident from Annexure 'D', copy of Ahed Nama placed on file. Besides, Rehan Khan alongwith Raja, petitioner No, 2, filed a civil suit for rendition of accounts against the Chief Administrator, Auqaf, Central Zone, Lahore, claiming adjustment of rent said to have been received by the Chief Administrator, Auqaf on account of rent of houses and shops from the tenants. The said suit, after contest, was dismissed on 27th June, 1966 by the learned Senior Civil Judge, Jhang. It was held in discussion under issue No, 2, that the houses and shops, the rent whereof was claimed by the petitioners, were not included in the lease. However, the learned Senior Civil Judge, after observing that the Court had no jurisdiction, returned the plaint under Order VII, rule 10 of the Code of Civil Procedure for presentation to the proper forum. Appeal against the said decision was dismissed on 16th January, 1968 by Mr. Saeed Ahmad, learned Additional District Judge, Lyallpur (now Faisalabad), Camp at Jhang. The plaintiffs in the suit who are petitioners in the present writ petition, did not agitate the matter any further. The lease does not expressly describe houses and shops to be included in it. Civil Courts too founded as a fact that houses and shops were not included therein. There is no A evidence to hold that shops and houses, 55 in number, were also given on lease to the petitioners. Therefore, the stand of the petitioners that they are entitled to receive the rent in respect of these houses and shops is obviously untenable. The petitioners, therefore, cannot claim any adjustment on this ground. As regards the contention that the amount cannot be recovered as arrears of land revenue unless it is first determined by a civil Court in a suit properly filed by the Auqaf Department or that no determination could have been made unless the petitioners were formally associated in the said process, despite vehement arguments raised by the learned counsel for the petitioners, I do not feel persuaded to agree with him. The waqf land was given on lease to the petitioners at the rate of Rs, 32,125 per annum, which fact was fully known to them. The period of lease was for three years commencing from Kharif 1962 to Kharif 1965. The total amount of premium, therefore, calculated at the rate of Rs, 32,125 per annum came to Rs, 96,375. Out of it, only a sum of Rs, 25,625 had been paid leaving a balance of Rs, 70,750 for which recovery as arrears of land revenue is being made. The amount so payable is fully known to the petitioners. No inquiry at all was needed to find out as to the amount due from the petitioners to the respondent Waqf. The amount of rent and lease money in respect of Waqf Property can be recovered as arrears of land revenue. Section 15 of the Waqf Properties Ordinance, 1961 reads as under :- "Rent and lease-monies in respect of Waqf property may be recovered as arrears of Land- revenue.-Any sum due as rent or lease money in respect of property, administration whereof has been taken over and assumed by the Chief Administrator, if not paid within thirty days of its having become due, may be recovered as arrears of land-revenue."
5. Learned counsel for the petitioners has lastly contended that in March/April, 1965 while the lease in favour of the petitioners was still subsisting the respondent in clear violation of the rules through private agreement granted the lease of land comprised in petitioners' lease to the tenants which showed clear mala fides. However, looking at the reply of the respondents Waqf, it becomes clear from para. 17 of the written statement that after expiry of lease in Kharif 1965, the land again was put to auction and the tenants being the highest bidders were given fresh lease.
6. It was not necessary for the Auqaf Department to file a suit for recovery of lease money/rent against the petitioners because the lease money has been fixed already in the lease agreement.
No accounting was needed. The statute gives them power to recover the rent and lease money in respect of Waqf Property if not paid within 30 days of its having become due, as arrears of land revenue. The recovery of Rs, 70,750 due from the petitioners to the Auqaf Department cannot, therefore, be seriously objected to. The petitioners are possessed of an alternate remedy under the law. In case they dispute their liability to pay the lease money after making deposit of the amount under protest can file a civil suit to get their alleged grievances redressed. Under section 78 of the Punjab Land Revenue Act, 1887, person denying his liability for the arrears or any part thereof, after paying the amount was allowed to file a Civil Suit for recovery of the amount so paid. In section 91 of the West Pakistan Land Revenue Act, 1967, identical provisions are made. The petitioner, therefore, is not without a remedy. He cannot be allowed to evade his liability to pay lease money to the Auqaf Department in exercise of equitable writ jurisdiction.
7. For the foregoing reasons, finding no merit in the present writ petition, I dismiss it leaving the parties to bear their own costs.