1. ' MUNAWAR ALI KHAN, J.-- This constitution petition has been filed by Administrator-General of Auqaf with the following prayer: "This Honourable Court may be pleased to declare that the petitioner and/or Auqaf Lands are not covered by the Land Reforms Laws, that the orders impugned herein are illegal and without lawful authority and the respondents, accordingly be restrained from implementing the said orders and/or from in any other manner or form attempting to or resuming the lands covered by the Auqaf Legislation."
2. The case of the petitioner in brief is that the petitioner is a corporation sole created by the Auqaf (Federal Control) Act 1976 (hereinafter referred to as 1976 Act). It is stated in the petition that for all the purposes the petitioner is a Government Department known as 'Waqf Department' and is governed and controlled by the Ministry of Religious and Minority Affairs, Government of Pakistan. It is further stated that from time to time the petitioner has taken over and assumed the administration, control, management and maintenance of a large number of Waqf properties. In 1972 M.L.R. 115 was promulgated fixing the ceilings of land holdings. In a meeting of the Federal Land Commis sion, constituted under the said M.L.R 115, held on 30-11-1974, a decision was taken that the M.L.R 115 was applicable to the Waqf properties and, therefore the Waqf Department was called upon to file declaration's under the said M.L.R.
115. The decision which was communicated by the letter dated 7-1-1975, was however subsequently modified and the latter decision was conveyed by letter dated 27-5-1975. It appears from the petition that the aforesaid decision of the Federal Land Commission was based on the advice of the Law Division, in whose opinion, the definition of 'person' as given in the Land Reforms Act 1977 (hereinafter referred to as 1977 Act) covers the Auqaf Department. Subsequently as per modified advice of the Law Division the ceiling on land holdings prescribed in section 3 of the 1977 Act, is applicable to all Waqfs individually whether they are under the control and management of the Auqaf Department or not, but will not apply to Auqaf Department as a whole. Accordingly the Auqaf Department was required to submit declarations under M.L.R 115 read with 1977 Act in respect of Waqf properties under the control and management of the said Department.
2. ' Mr.Wajihuddin Ahmed was heard in support of the petition and Mr.Abdui Sattar Shaikh Additional Advocate-General made submissions on behalf of the respondents.
3. ' The learned counsel for the petitioner raised the following contentions:-
(1) That a Waqf created by a Muslim is not a Trust and since Trust as distinguished from Waqf has been included in the definition of 'person', it follows that Waqf is not covered by the definition.
(2) That all Waqfs excepting the Waqf made for the benefit of Waqif himself or for his children are made in the name of Almighty Allah and the properties comprised in such waqfs vest in God, such properties cannot be made subject to the provisions of 1977 Act.
(3) That all the Waqf properties are under the control and management of the Auqaf Department which is a Government Department and, therefore, as is evident from the definition of 'person', these properties are excluded from the operation of the defintion.
4. ' As provided in section 3 of the 1977 Act no person shall, after commencement of the said Act, own or possess land in excess of the ceiling fixed therein. Obviously the intention of this provision of law is to curb the concentration of land in few hands and curtail the size of individual land holdings.
5. Those owning or possessing the land in excess of the fixed ceiling were not only required to file declaration but ultimately had to surrender the excess area under the 1977 Act. As has been stated above the Auqaf Department which has under its control and management the Waqf lands was required to file declaration in respect of the excess land. In this connection reference may be made to two letters: one dated 7-1-1975 from the Secretary Sind Land Commission addressed to the Chief Administrator, Auqaf, Government of Sind and the other dated 27-5-1975 from the Secretary, Sind Land Commission addressed to all the Deputy Comnlissioners in the Province, forwarding a copy thereof to Chief Administrator, Auqaf of Sind, Administrator Auqaf of Sind and Deputy Administrator, Auqaf, Hyderabad. In the first mentioned letter the decision of the Federal Land Commission taken in the meeting held on 30-11-1974 was conveyed in the following words: "The provisions of M.L.R. 115 did not apply to Evacuee Trusts because they were being dealt with under an International Agreement. It was however decided that the provisions of M.L.R 115 were applicable to the Waqf properties administered by Auqaf Department and the Chief Land Commissioners concerned were asked to invite declarations."
6. ' It appears that the above decision of the Federal Land Commission was modified in the Commission's meeting held on 28-4-1975 and the modified decision was conveyed as under: "It was decided that, in partial modification of the previous instructions, fresh instructions should be issued that every Waqf, except the evacuee trust and Waqf properties administered by the Auqaf Department was affected by the provisions of para. 8 of the Land Reforms Regulation, 1972."
7. ' The last letter dated 21-2-1978 which emanated from the Secretary Federal Land Commission and was addressed to Secretary, Punjab Land Commission, Lahore. Secretary, Sind Land Commission, Hyderabad and Secretary, Baluchistan Land Commission Quetta is to the following effect.
8. "Subject: Determination of land holding under the control of Muslim Auqaf Department.
9. Sir, ' I am directed to refer to the correspondence resting with this Commission's letter of even No. dated the 22nd December, 1977 and to state that the law Division have modified their earlier opinion and advised that the ceiling prescribed in section 3 of the Land Reforms Act, 1977 applied to all the Waqfs individually whether under the control and management of the Auqaf Department or not but will not apply to Auqaf Department as a whole. In other words, each Waqf whether under the management of the. Auqaf Department or not, if its holding is more than the prescribed ceiling, shall have to surrender area in excess of the prescribed limit.
10. ' The receipt of this letter may kindly be acknowledged."
11. 'It would appear that in the first letter it was made clear to the Auqaf Department that Waqf property under its control and management is covered by the limitations imposed on owning and possessing of land under the Land Reforms Regulation, 1972 and as such the said department was required to file declarations with regard to waqf land in excess of the fixed ceilings. However, in the last mentioned letter it was clarified that as advised by the Law Division the ceiling fixed in section 3 of the 1977 Act, which by that time had superseded M.L.R. 115 of 1972 and held the field, applied to all Waqfs individually whether or not under the control and management of Auqaf Department, but it did not apply to the Auqaf Department as a whole. In other words, it was further elaborated that holding of a Waqf if in exess of the prescribed limit, the excess area would have to be surrendered.
12. ' It would be noticed that 'person' owning or possessing land holding in excess of the prescribed ceiling is required to file declaration and surrender excess area. Therefore, the question that arises for our determination is as to who is the 'person' for the purpose of Waqf properties or alternatively whether individual waqfs comprising land holdings or Administrator-General who has the management and control of the waqf lands or even the Auqaf Department is 'person' within the meaning of the term. The word 'person' as defined in subsection (7) of section 2 of the 1977 Act means: "Person" includes a religious, educational or charitable institution, every trust whether public or private, a Hindu undivided family, a Company or association or body of individuals, and a co - operative or other seciety, but does not include a local authority, a university established by law, a joint stock company which is directly or indirectly held or controlled by Federal Government or a Provincial Government or by both or any other body in which the Government holds majority interest."
13. ' It was argued by the learned counsel for the petitioner that as required by section 7 of the 1976 Act it is the Administrator-General of the Auqaf Department who by notification in the official Gazette takes over and assumes the administration, control, management and maintenance of Waqf property and as such Waqf property is under his control and management. Therefore if at all declaration is to be filed in respect of Waqf properties under the control and management of Administrator-General, the same is to be filed by him. The question is whether the Administrator- General falls within the definition of "person" referred to above. For answering this question first of all it may, perhaps be useful to refer to the definition of "Waqf Property" as given in clause (f) of section 2 of the 1976 Act. It reads as under: "'Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, or charitable, but does not include property of any Waqf such as it is described in section 3 of the Muslaman 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."
14. ' It would appear from the above definition that if the Adminis trator-General takes over the control of any Waqf property which for the time being remains under his control and management, he adds it not on his own behalf nor for his own benefit but for the purposes of the Waqf. Moreover the property under his control and management vests in God. As has been pointed out above the idea of the land reforms contained in the 1977 Act is to cut the size of individual holdings so that excess area that is surrendered in consequence canB be distributed amongst the landless Haris. But the position of Waqf property is entirely different. It being property vesting in God and existing for religious or charitable purposes cannot be intended to be reduced in size. Since the Waqf property seeks to achieve purposes more or loss similar to these contemplated by the land reforms, it will hardly make any difference if the excess area of Waqf property is surrendered and distributed amongst Haris. Such change will amount to snatching of land from one hand catering for the needy and giving to other poor men. We are, therefore, of the considered view that the Administrator-General cannot be held to be a "person" possessing land within the meaning of section 3 of 1977 Act. Accordingly he is not covered by the definition of person. Even otherwise it does not appear to us just and proper to require declarations to be filed in respect o E the landholdings which vest in God and are property of Almightly Allah.
15. ' Apart from above we agree with the learned counsel for the petitioner that Waqf is not a Trust as they both are different concepts having different attributes. In support of this proposition reliance has been placed on Alhaj Agha Ghulam Hosain Sherazee v. Province of East Pakistan PLD 1967 Dacca 1. In this case both Waqf and Trust are found to be different concepts with different attributes.
16. ' In another case reported as Mst. Saira and 11 others v. Settlement Authorities PLD 1973 Lah. 327, their Lordships of Lahore High Court after comparing the attributes of trust with those of Waqf came to the conclusion that Waqf is not a trust. Judging the definition of the word "person" in the light of above authorities, We find that "trust" has been specifically included in the definition, whereas "Waqf" has been omitted from it. In our opinion the omission appears to be deliberate because "waqf" is not intended to be covered by the definition. It may also be pertinent to refer to the observations made by Federal Shariat Court with regard to Waqf property in the case reported as Hafiz Muhammad Ameen etc. v. Islamic Republic of Pakistan and others PLD 1981 F SC 23. The observations are as under: "In the above state of law, Sunni as well as Shia, it could never be permissible to the State to resume a Wakf for the purpose of selling the Waqf property in utter disregard of the object of Waqf to individuals and thus convert divine property into personal property of a class of persons. No doubt some Jurists have recognised in the State right to resume even Wakf property in case of dire need, but in such a case the State has to keep alive the object of Waqf by providing alternate means to keep the Waqf in perpetuity. The right to acquire Waqf property without compensation or on payment of compensation has not been conceded to the State. The Waqf belongs to God Almighty. Then who is to receive, except the successor Waqf, compensation on his behalf. A Waqf in Islam is a perpetual endowment and has to be utilised in strict accord with the object of Waqf declared by the Waqif. The Islamic law on Wakoof is so stringent that when some water is dedicated for drinking purposes and no water is available beside it for ablution, no one is allowed to use the Wakf water in ablution for saying prayers. Such person must say his prayers after performing 'Tayammam'.
17. ' The definition of 'person' in the impugned provision of law to the extent of including therein a Muslim trust, whether 'public or private' is for the reasons stated above, repugant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah. Any other provision in the impugned Laws empowering the acquisition of Muslim Wakf for the purpose of settling the Wakf property upon a person or a class of persons would also be repugnant to the Injunctions of Islam. I would, therefore, allow this petition."
18. ' It was however submitted by the learned Additional Advocate-General that as a Waqf is created for religious or charitable purposes, it is a religious or charitable institution and as such it falls within the definition of 'person' even though it may not be a trust. We are not impressed by this argument. We have already held that 'Waqf' which is different from trust in characteristics does not fall within the definition of 'person' and the omission appears to be intentional. This firstly because that Waqf property vests in God. Secondly in view of observa tions made by Federal Shariat Court in the above reported case, the Waqf property cannot be acquired for the purpose of settling the same on any person or class of persons. We, therefore, do not subscribe to the idea that Waqf by virtue of being a religious or charitable institution is a "person" within the meaning of the term as defined in 1977 Act.
19. ' If the intention was to cover Waqf properties like trust properties, express mention to that effect should have been made in the definition of "person". Nothing prevented the Legislature from doing so. The omission of Waqf from the definition is not without significance.
20. ' In view of above discussion we hold that Waqf which is not for the benefit of Waqif or his children but is for the religious or charitable purposes is not a "person" within the meaning of the word defined in the 1977 Act. We also hold that Administrator-General of Auqaf Department who is in control and management of Waqf properties does not fall within the said definition. Accordingly neither Administrator-General nor he Auqaf Department can be required to file declaration with regard to excess land holdings comprised in the Waqfs. In result we allow the petition with no order as to costs.