The Chief Administrator of Auqaf by means of a Notification No. 4025-Auqaf-60, dated 16-4-1960, published in the Extra--ordinary issue of the Gazette of West Pakistan of the same date at pages 1719-20 and issued under section 6 of the West Pakistan Waqf Properties Ordinance XXI of 1959 (hereinafter called the Ordinance), took over and assumed the administration, control, management and maintenance of the Waqf Properties attached to the Darbar of Hazrat Imam Sahib of Sialkot City as described in the Schedule annexed thereto. The Schedule contained 34 items of properties, the details of which are not necessary to be mentioned here except that Item No. 1 consisted of "shrine of Hazrat Imam Sahib Sialkot City bearing Municipal Property No. 7/27."
Towards the end of that Notification was an order of the Chief Administrator of Auqaf, West Pakistan, bearing No. 3(37)-Auqaf-60, whereby he appointed the City Magistrate, Sialkot as a Manager for the said properties giving him authority to (a) manage and maintain the Waqf Properties attached to the said shrine and (b) maintain the services and secure the performance of ceremonies at the said shrine and mosque in accordance with the orders and directions issued by him from time to tine. Against the aforesaid Notification, two applications were filed in the Court of the District Judge, Sialkot, under section 7 of the Ordinance. One was Case No. 13/1960 filed by Abdul Majid and others, and the other was Case No. 14/1960 filed by Muhammad Ibrahim and others. The petitioners impleaded two persons as defendants; defendant No. 1 being the Chief Administrator of Auqaf and defendant No. 2 was the City Klagistrate, Sialkot. It was averred in the petitions that the local Manager had, in pursuance of the aforesaid Notification, begun to collect offerings at the shrine notwithstanding the fact that the same had not been included in the Notification. It was further pleaded that these offerings were not Waqf but were the personal properties of the petitioners and others who had been deriving title thereto and interest therein by purchase and devolution from generation-to-generation by inheritance like their other personal properties. The petition went on to say that the petitioners and their predecessors-in-interest had been exercising right of ownership over the offerings and in several contested cases the offerings had been held as not pertaining to tine shrine but belonging to the petitioners in specific shares, The petitioners in Case No. 13/1960 claimed by 37- shares out of the total 192 shares of the offerings.
The petitioners in Case No. 14/1960, claimed 48/192 shares. It is pertinent to mention that during the pendency of these cases the Chief Administrator of Auqaf realised that he had omitted to mention the offerings in the Schedule of the properties taken over by him. Consequently, he issued another Notification bearing No. 9(13)-Auqaf-60 dated 23-5-1961, published in the Extraordinary Issue of the Gazette of West Pakistan dated 24-5-1961, at page 1397. This Notification reads as follows:- "OFFICE OF THE CHIEF ADMINISTRATOR OF AUQAF, WEST PAKISTAN NOTIFICATION No. 9(13)-Auqaf-60-I, A. H. Quraishi, C. S. P., Chief Adminis--trator of Auqaf, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance 1959, make the following amendment in Notification No. 4025-Auqaf-60, dated the 16th April 1960, namely :-- AMENDMENT After item No. 34 of the Schedule appended to the said notification, the following new item shall be added:- "35. Income from the box placed at the said shrine and offerings and subscriptions made to the shrine."
2. The above amendment will be deemed to be operative, with effect from the 16th April 1960.
West Pakistan."
After the issuance of the above Notification, the learned District Judge struck the following final issues in Case No. 13 of 1960:-
(1) Whether the offerings of the shrine of Hazrat Imam Sahib are Waqf property within the meaning of Ordinance XXI of 1 459? O. P. On respondent) (Objected to).
(2) Whether the offerings have not been included in the Notification, dated 16-4-1960? (O. P. On the petitioners).
(3) What is the effect of not specifically mentioning the offerings of the shrine in the Schedule? (O.
P. On the parties:)
(3-A) How does the Notification of 23-5-1961, affect the offerings at the shrine of Hazrat Imam Sahib and from what date? (O. P. R.)
(3-B) Is the Notification of 23-5-1961 illegal and ultra vires? (O. P. P.).
(4) ,Relief,
2. In Case No. 14, the following (amended) issues were similarly framed:-
(1) Whether the offerings at the shrine of Hazrat Imam Sahib A are not Waqf property within the meaning of West Pakistan Waqf Properties Ordinance, 1959 in view of Explanation 4 to Clause (d) of section 2 thereof (O. P. P.)
(2) Whether the offerings have been included in the Notification, dated 16-4-1960, and whether the inclusion thereof was not necessary and Administrator can take over and assume :he administration, control and management thereof? (O. P. R.)
(3) Have the petitioners any interest in or right to the offerings at the shrine and to what extent?
(3-A) How does the Notification of 23-5-61 affect the offerings at the shrine of Hazrat Imam Sahib and from what date? (O. P. R.)
(3-B) Is the Notification of 23-5-1961, illegal and ultra vires ? (O. P. P.)
(4) Whether the offerings at the shrine of Hazrat Imam Sahib are in the nature of reward, remuneration or presents to the petitioners or other persons interested therein for the services which they rendered and cannot therefore, be considered to be Waqf property (O. P. P.)
(5) Relief.
3. In Case No. 13 of 1960, Abdul Majid petitioner appeared as P. W. 1 and tendered four documents Exhs. P. 1 to P.
4. From the side of the respondent, Hafiz Muhammad Amin Imami, Chairman of the Managing Committee was produced as R. W.I ,and Khan Bahadur Assistant Manager of the dargah was produced as R. W.
2. The respondent produced Exh. R. 1 which was a copy of the Gazette containing the subsequent Notification and Exh. R. W. 2/1 which was an account of income at the shrine for the period mentioned therein.
4. In Case No. 14 of 1960, Muhammad Ibrahim one of the petitioners appeared as his own witness and made a statement as P. W.
1. The petitioners therein produced a large number of documents ranging from Exhs. P. 1 to P. 13 which will be mentioned in the later part of this judgment. From the side of the respondent, Khan Bahadur appeared as R. W. 1 and 41afiz Muhammad Amin Imami as R.
W.2. The respondent produced Exh. R. W. 1/1, which was a copy of the account of the income of the shrine.
5. After attending to the relevant evidence in the case, the learned District Judge, keeping in view the issues framed in Case No. 14 of 1960, which were more comprehensive, held:-
(1) That offerings at the shrine did come within the definition of "Waqf" as contained in Explanation 4 to clause (d) of section 2 of the Ordinance.
(2) But as they were not mentioned in the Schedule of the properties taken over by means of Notification, dated 16-4-1960, therefore the Administrator of Auqaf could not have taken over the same.
(3) That it was established on record that prior to the taking over of the shrine, the petitioners had been sharing the offerings and that the same belonged to them according to the shares mentioned in their respective petitions. However, subsequent to the inclusion of the offerings in the later Notification of the Chief Administration of Auqaf, the said offerings had been taken over by him and the petitioners could get no share in the same.
(3-A) That the Notification dated 23-5-1961, effected the offerings onward from that date and offerings prior thereto were not covered by any of the Notifications.
(3-B) That the Notification, dated 23-5-1961, was not illegal in any manner except to the extent of its retrospective operation.
(4) The offerings at the shrine were appropriated by the petitioners as a reward for services rendered by them. There was difference between offerings at the shrine and private offerings to the petitioners. The learned District Judge held that private offerings by the petitioners, if any, were not to be affected.
6. After recording the above finding, the learned District Judge held that the petitioners were entitled to share the offerings prior to the notification dated 23-5-1961, to the extent of the shares mentioned in their respective petitions and that the said offerings were liable to be given to the petitioners for which the Chief' Administrator of Auqaf was liable to render accounts. As regards the offerings subsequent to the date hereinbefore mentioned, he granted no relief to the petitioners.
Both the cases were disposed of by the learned District Judge by means of one and the same judgment, dated 26-2-1962. Against the aforesaid judgment and order of the learned District Judge, three appeals have been filed in this Court. F. A. O. No. 47/62 has been filed by Abdul Majid and others who were petitioners in Case No. 13 of 1960 in the trial Court. F. A. O. No. 53 of 1962 has been filed by the Chief Administrator of Auqaf against the petitioners in Case No. 14/1960 and F. A.
O. No. 54 of 1962 has been filed by the Chief Administrator of Auqaf against the petitioners in Case No. 13/1960 in the Court below. This judgment will dispose of the aforesaid three appeals.
7. Arguing the appeals of the Auqaf Department, Mr. Aamar Raza learned Advocate referred to the definition of "Waqf property" as contained in section 2(d) of the West Pakistan Waqf Properties Ordinance XXI of 1959, which was the relevant statute at the time when the properties under examination were taken over. This definition, at tile relevant time, read as follows:- "Section 2(d).-`Waqf 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 of any Waqf such as is described in section 3 of the Mussalman Waqf 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.
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 property.
Explanation 2.-Property allotted in lieu or in exchange of Waqf property left in India shall be deemed to be Waqf Property.
Explanation 3.-Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property or from subscriptions raised for any purpose recognized by Islam as religious, pious or charitable shall be deemed to be Waqf property.
Explanation 4.-The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property.
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."
To this definition was added one more Explanation in the form of Explanation No. 6, when the Ordinance was recast in the form of West Pakistan Waqf Properties Ordinance XXVIII of 1961 with effect from 23-i0-1961. This Explanation reads as follows:- "Explanation 6.-Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Durgah, or other shrine shall be deemed to be Waqf property."
Since this Explanation came into force on the 23rd of October 1961, and was not in existence when the two impugned Notifications were issued, therefore, the cases shall have to be decided with reference to the law which existed at the time of the impugned Notification so as to see what or what was not taken over by the Chief Administrator of Auqaf. The newly added Explanation has been mentioned above simply to complete the historical survey of the Statutes.
8. Keeping the definition, reproduced above in view, learned counsel submitted that when a shrine was taken over by the Chief Administrator of Auqaf then it would be considered to have been taken over with all its incidents and appurtenances with the result that the taking over of the shrine should be assumed automatically to include the taking over of "income from the boxes placed at a shrine and offerings or subscriptions for charitable purposes, which, according to Explanation No. 4 (the Statute says) "shall be deemed to be Waqf property". In this way, it is argued that the second Notification, dated 24-5-1961, issued by the Chief Administrator of Auqaf was a simple duplication which did not materially affect the situation, inasmuch as, in the eye of law, the income from the boxes placed at the shrine should be considered to be already included in the earlier Notification.
The point though prima facie attractive, but on closer security does not appear to be correct for the following reasons :-
(a) The taking over section in the Statute is section 6 which reads as follows :- "Section 6. Chief Administrator may take over Waqf properly by notification.-Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a waqf property."
In the new Ordinance i.e., West Pakistan Waqf Properties Ordinance XXVIII of 1961, there is added an Explanation to the above section which reads as follows :- "Explanation.--For the purposes of this section, 'control' and 'management include control over the performance and management of religious, spiritual, cultural, and other services and ceremonies at or in a waqf property."
Comparing section 6 with the definition of "waqf property" as given in section 2(d), it appears as to what property is waqf is to be seen with reference to the definition clause, but which out of the said property has been taken over is to be seen from the actual notification issued by the Chief Administrator of Auqaf. The definition along with its Explanations makes the various types of properties as waqf properties but if the Notification issued is only about one kind of property it cannot be held to include another kind of property also. For each property taken over there has to be an express Notification and the scheme of the Ordinance does not contemplate any implied taking over or taking over by a process other than that of a Notification. If the argument of the learned counsel for the Auqaf Department is accepted that will tantamount to making inroads in the Statute which cannot be allowed. The point can be well-understood by keeping Explanations 2 and 3 in the forefront. If for example any property can be considered as a waqf property within the scope of the said two Explanations, then mere taking over of some property (in lien whereof or from the sale proceeds of which) a fresh property has been acquired, that will not automatically include the taking over of the so freshly acquired property and that job will have to be done or performed by means of an express Notification. If this can be true of Explanations 2 and 3, the same should be true of Explanation 4 as well.
(b) Section 6 says that the Chief Administrator of Auqaf may take over and assume the administration, control, manage--ment and maintenance of a Waqf property. The word "a" read with the word "may" suggests that it is within the discretion of the Chief Administrator of Auqaf to take over or not to take over any Waqf property. If, therefore, he takes over one Waqf property it cannot be assumed that he has taken over another kind of property also. The explanations attached to the definition of Waqf property are intended to enlarge the scope of Waqf property, but they are for the purpose of guiding the Chief Administrator of Auqaf that such and such property can also fall within his sphere of taking over. They are not intended to entrap the public at large that when there is no Notification about any express property, even then the Chief Administrator of Auqaf can interfere with the same in the garb of or by relying on "Explanations".
(c) Regarding income from boxes placed at a shrine there has been a good deal of controversy as to whether they constituted waqf or not and whether in spite of their being "Waqaf", the Khadims or persons serving or attached with the shrine could share in them. The broad principle that has been accepted in this respect is that each shrine or institution is to be regulated by its own practices, conventions and custom. I need not go into the history of the relevant case-law and for my purpose it is sufficient to hold that whatever the earlier position, now by Explanation 4, "the income from boxes placed at a shrine and offerings and subscriptions for charitable purposes shall also be deemed to be Waqf property." Obviously, this law is prospective and in a given case will be applicable for the purpose of taking a property over actually from the date when the Notification expressly stating so is issued. If the income from boxes under the earlier law could not automatically be considered as belonging to or forming part of a shrine and each case depended on its own facts, then even making it a "Waqf" by Explanation 4, could not mean that it went with the shrine and possibilities cannot be ruled out of situations where only one of them is taken over and not the other. All that the Explanation 4 states is that such and such income shall be a "Waqf property" but not that it shall form part of the shrine or be included in that. If the Legislature had intended to create any such fiction it could have so said. In the absence of any such indication, it is not possible to read into the statute things and results which have not been manifested by the Legislature.
(d) In the first notification, there were mentioned 34 items of property. In the second Notification, "income from the box placed at the said shrine and offerings and subscriptions made to the shrine", have been added as a 35th item in the earlier list. This process also shows that the second was a separate and independent action of taking over. Obviously, such an action could be operative from the date of its own notification and not with any retrospective effect.
(e) When Legislature desires a thing to be done in a particular manner then that should be done in that and that manner alone. In the Statutes, under consideration, a Waqf property can be taken over by and only by a Notification. If a property does not figure in any given notification, then I am not prepared to hold that it could still be considered as having been taken over. The Notification must be clear and un-ambiguous. From such a Notification flows the further authority of the Chief Administrator of Auqaf to deal with the property taken over and it gives a right to persons aggrieved to challenge the actions of the said officer. The view which I am taking will not mislead anybody and will be beneficial for all concerned as any other Interpretation will defeat the scheme of the Statutes concerned.
(f) The definition of "Waqf property" (already reproduced above) shows that it contemplates such property which is permanently dedicated by persons professing Islam for any purposes recognised by Islam as religious, pious or charitable. A question arises if in the boxes placed at any shrine, Non---Muslims also make contributions then what about them? Such donations and contributions not having been made by a Muslim will not fall within the main definition of "Waqf property" and even the Explanations will not come to their rescue. The same may be the position of any similar offerings or subscriptions. In order to alert persons, whose rights are to be affected by an act of taking over, it is, therefore, essential that when the Chief Administrator of Auqaf intends taking over these items as well (treating them as a Waqf property within the meaning of Explanation 4), he must formally do so by a regular and proper Notification.
9. The next point argued by Mr. Aamar Raza was that Petition No. 13/60, pertaining to Appeal No. 54/60, filed by the respondents concerned, under section 7 of the Ordinance, was time-barred. He submitted that the period of limitation for filing such petitions was thirty days from the publication of the Notification of taking over. Basing his argument on his previous premises, he submitted that since the income from boxes and offerings should also be considered to have been taken over with effect from the date of the publication of the first Notification, dated 16-4-1960, therefore, the petition, which was filed in this case on 17-5-1960. Was time-barred by one day. The contention cannot be accepted ; because I have already held that the first Notification, dated 16-4-60, did not take over the income from boxes etc. The said items were taken over in the form of Item No. 35 which was added by means of the second notification to the list of the properties already taken over and, as such, the petition under discussion, could not be said to suffer from any bar of limitation. When confronted with this situation, learned counsel argued that in the second Notification of 23/24-5-1961, the Chief Administrator of Auqaf had described that Item No. 35 should be deemed to have been added into the previous Notification retrospectively with effect from 16-4- 1960. In other words, since the addition of Item No. 35 was directed to have a retrospective effect, therefore, it should be considered to have been taken over with effect from 16-4-60, and, as such, the period of limitation for challenging Item No. 35 should start from the retrospective date. I am afraid, the contention cannot be seriously attended to for various reasons. Retrospectively is the work of the Legislature and the Chief Administrator of Auqaf has no legislative power so as to give his notification a retrospective effect. The Chief Administrator of Auqaf has no jurisdiction to wipe off, destroy or curtail the statutory period of thirty days contained in section 7 of the Ordinance by saying that his Notification shall have a retrospective effect. Moreover, the period of thirty days, as laid down in section 7 of the Ordinance, runs from the date of the publication of the Notification and not from the date from which the Chief Administrator of Auqaf directs that his Notification should take effect. Mr. Aamar Raza has not shown as to when the Notification dated 16-4-1960 was actually publi--shed. He referred to the Gazette, dated 16-4-1960 and submitted that the date of the Gazette is the date of the publication of the Notification. Ordinarily, this may be so, but in cases of the present type and other similar situations where valuable rights are affected or penalties or obligations accrue, it is for the party trying to take away the rights or liabilities placed on others to prove as a matter of fact as to when did the publication actually take place because possibility cannot be ruled out that though a Gazette is given a particular date or is to be shown to be of a particular date, its actual publication as a matter of fact, may not have taken place on the same date or may have taken place a day or two or some period later. Such a possibility was taken note of in Balkrishna Anant Hirlekar v. Emperor (AIR 1931 Bom. 132). In that case, the local Government had a power under the relevant law to declare any association to be unlawful and after such declaration if any person remained a member of the said association, then he was liable to be convicted. A Gazette notification declaring an association as illegal was issued on 14th of October and thereafter during some part of the same day certain persons were prosecuted for having remained members of the said association. A question arose that since the prohibition to remain a member was to come into effect from the date of the publication of the Notification, at what particular time or date the notification was published 7 It was held that Govern--ment is not under any obligation to publish a Gazette of a particular date on that very date and that they, are quite at liberty to delay publication. It was further observed, whether they did or did not publish it on the 14th of October, was a matter which should have been proved by evidence and since there was no evidence whatsoever on the subject, the point could not be found in favour of the prosecution.
Applying the aforesaid ratio decidendi to the facts and the circumstances of the present case, no effect can be given to the objection of Mr. Aamar Raza, especially, when the objection of limitation was not raised in the Court below, nor does it figure in the grounds of appeal in this case, and also because of the factual aspect as highlighted above. It is a point which would need investigation and leading of evidence. Mr. Aamar Raza submit--ted that the petitioners concerned had filed an application forcondonation of delay under section 5 of the Limitation Act before the learned District Judge in which a different ground was taken. That is so, but then no objection was filed to that application and even otherwise no issue was claimed on limitation. Again the time spent in obtaining copy of the Notification may also be pressed into service by the respondents, because there is some evidence on page 104 of the file in the statement of Abdul Majid (P. W. 1) in his case, that he applied in the Government Printing Press for getting a copy of the Notification vide application Exh. P. 4 but was told that the same was not in stock. Moreover, if the Department itself issued Notification regarding Item No. 35 on 24-5-1961, how can it say that petition about it filed on 17-5-1950 was time-barred. It was rather much before time-an aspect about which no arguments were addressed before me. The Department cannot be allowed to play a double role in this case.
Looked at from whatever angle, the objection of limitation cannot be allowed to prevail.
10. Coming to the merits of the case, there is ample evidence on the record that the petitioners are eligible to share in the property in question to the extent claimed by them. It is also established on record that the shares of the petitioners are hereditary. They could be alienated by sale, gift or otherwise and could be mortgaged, pledged or attached in execution of civil Courts decrees and could be followed like any other property. In the case of Muhammad Ibrahim etc. v. The Chief Administrator of Auqaf, the petitioner Muhammad Ibrahim appeared as his own witness as P. W. 1 and explained that He produced Exh. P. 1 which is a copy of sale certificate dated 26-10-1936 (Exh. P. 2) which is a copy of auction bid in a case decided on 19-8-1871 (Exh. P.3) which is a copy of a judgment of a civil Court dated 8-5-1907 Exh. P. 4 which is a copy of an application of Ghulam Qadir dated 15-4-1950, Exh. P. 5, which is a copy of an application of Muhammad Ibrahim dated 10-6-1950, Exh. P. 6 which is a copy of a judgment in a case Ghulam Qadir v. Ibrahim dated 31-1-1951 Exh. P. 7, wdch is a copy of an amended plant dated 3-2-1951 in case entitled as Mian Inayat-Ullah and others v. Muhammad Abdullah and others, Exh. P. 8 which is a copy of a judgment of a civil Court dated 28-6-1951, Exh. P.
9 which is a copy of a judgment dated 23-2-1953, Exh. P. 10 which is a copy of a judgment dated 16- 1-1909, Exh. P. 11 which is a copy of a judgment dated 22-8-1908, Exh. P. 12 which is a copy of a copy of a judgment of civil Court, filed in a case entitled Taj Din v. Nishan Ali etc. Dated 3-6-1886, Exh. P.
13, which is a copy of the Gazette Notification dated 16-4-1960, whereby the property in question was taken over by the Chief Administrator of Auqaf. From the side of the Auqaf Department, R. W. 1 Khan Bahadur Assistant Manager Auqaf R. W.
2. Hafiz Muhammad Amin made statements. The Department also produced Exh. R. W. 1/1, which is a chart of income for the period January 1961 to 31-1-1962. In the case of Abdul Majld v. The Chief Administrator of Auqaf, Abdul Majid himself appeared as P. W. 1 ani produced Exh. P. 1 a copy of the 1972 judgment of Munsif, Sadar Sialkot, dated 8-5-1907, Exh. P. 2 copy of the judgment of the learned District Judge, dated 31-1-1951 and Exh. P. 3 copy of the Gazette Notification dated 16-4-1960 have been produced. From the side of the Department, Hafiz Muhammad Amin appeared as R. W. 1 and Khan Bahadur Assistant Manager, Auqaf as R. W.
2. The schedule of the income was also produced for the period commencing from January 1961 to 31-1-1962 as R. W. 2/1. The documentary evidence referred to above shows that the petitioners or their predecessors had been receiving a share from the income of the boxes and the offerings and subscriptions etc., according to the shares mentioned in their respective petitions.
They also prove that the said shares could be sold, mortgaged, pledged, gifted away or otherwise alienated and were attached in execution of Court sales which could not have been done unless the nature of the shares was that of a "beneficiary" and not merely reward for services which one may or may not have rendered. In that view of the matter, it can safely be held that the pet-- itioners had potential beneficial interest in the property involved in the case and merely because the same has become waqf or its management has been taken over by the Chief Administrator of Auqaf, it does not mean that the said potential or beneficial interest of the petitioners has been wiped off.
11. This factual aspect of the matter was not seriously contested by the learned counsel for the Auqaf Department, especially, when there had been led no evidence by the said Departments in rebuttal in the Court below. Their learned counsel, however, argued that as a result of Explanation 4 ibid, since income from boxes placed at a shrine and offerings of subscriptions for charitable purposes are to be deemed to be waqf property, therefore, even if they may be held as not having been formally taken over by the Chief Administrator of Auqaf, so far as the petitioners are concerned, they cannot lay hands on that property any more because the said property is also now waqf and not their personal property as such. This argu--ment has no force for two reasons.
The first is that if there was no Notification of the Chief Administrator of Auqaf for taking over the property, he had no business to take over the same and deprive the persons who used to appropriate it. Only a person with a better title could deprive the petitioners of their vested rights of sharing the property in question. The action of the Chief Administrator of Auqaf in this respect was thus without lawful authority and the petitioners are entitled to a declaration of their rights in that behalf. The second reply which could be given to the argument of the learned counsel is that all that Explanation 4 says is that such and such property shall also be deemed to be waqf, but this does not affect the rights of persons who used to be the beneficiaries of the said income. Take for example a case where there is a stipulation that from the income of certain waqfs, a particular stipend or a share is to be given to Anjuman Himayat-i-Islam. If, by legal fiction certain income is declared to be a part of that waqf that hardly affects the rights of those who previously used to be its beneficiaries. When money is put in a box at a shrine, it may imply that it is to be appropriated inter alia, by persons, who for centuries have remained attached with that shrine and have been suffered by user of time immemorial to be the beneficiaries of the income of that shrine. Waqf for servants, Mujawars and Sajjada--nashins is a valid waqf. Similarly, if the so-called servants or Mujawars are otherwise spiritually attached to the shrine as, for example, they are the descendants of a spiritual head himself, then a waqf for the descendants of such a spiritual head is a valid waqf.
Reading Explanation 4 in this light, it means that D income from boxes placed at a shrine shall be deemed to be waqf, namely, as a dedication for any purpose recognized by Islam as religious, pious or charitable. Now, if the old beneficiaries continue to be beneficiaries, will this amount to derogating from the concept of waqf and will their sharing in the income be a purpose which can be called as un-Islamic from the point of view of religion, piety and charity, vis-a-vis, the donors of that money. Since, payment to such like beneficiaries was not un-Islamic earlier, Explanation 4 does not make it un-Islamic in future. Rather section 13, which is a key for interpreting the matter, reads as follows :- "Section 13. Use of Waqf property arid application of income therefrom.- Subject to the provisions of this Ordinance, a Waqf property shall be used for the purpose for which ft was dedicated or has been used or for any purpose recognised by Islam as religious, pious or charitable, as the Chief Adminis--trator may deem fit.
A close scrutiny of this section will show that old uses of Waqf property are not to be discontinued and old beneficiaries are not to be dropped due to a mere fact of taking over of a Waqf property.
Similarly section 11 reads as follows :- "Section 11. Chief Administrator to prepare scheme for the administration of Waqf property.-(1) The Chief Administrator shall as respects the Waqf property in respect of. Which a Notification under section 6 has been issued and the gross annual income from which exceeds rupees five thousand, and in other cases may, settle a scheme for the administration of such a Waqf property.
(2) In the settlement of a scheme the Chief Administrator shall give effect to such wishes of the person dedicating as can be ascertained and to which effect can be reasonably given."
13. This may be read with rules 4 and 5 of the West Pakistan Waqf Properties (Administration) Rules, 1960. They read as follows :- "Rule 4. Scheme for the management of Waqf property.-(1) The Manager shall prepare, for settlement by the Chief Administrator, a scheme for the administration of the Waqf property in his charge. The scheme shall be designed to give effect to such wishes of the person dedicating as can be ascertained and to which effect can reasonably be given, .In the absence of evidence of express dedication, the Waqf property shall be required to be used for the purpose for which it has been used or for any purpose recognised by Islam as religious, pious or charitable.
(2) --------------------------------------------------- .
(3) Where the Waqf property is a shrine, the scheme shall make provision for:
(a) the conduct and regulation of the established rites and ceremonies in accordance with the tenets of the saint or sect concerned ; and
(b) the proper custody of the cash boxes placed at the shrines or ether religious institution and the income therefrom."
(1) The Manager shall submit the scheme prepared by him to the Administrator who shall forward it with his recommenda--tions to the Chief Administrator.
(2) The Chief Administrator may settle or may refuse to settle or may return for reconsideration any scheme submitted to him under sub-rule (1) or may call for such further details or information about the scheme or may direct such further examination of the scheme as he may consider necessary."
14. All the material reproduced above shows that the purpose for which previously the income was being used is not to be dropped altogether. I am prepared to concede that there may be necessary variations in the quantum of various stipends and benefits of beneficiaries due to changed circumstances, if any, but they are not to be wiped off altogether. Learned counsel for the Chief Administrator of Auqaf submitted that the income by the so-called beneficiaries was shared by them because of their rendering services to the waqf concerned, and the moment the waqf was taken over, all such servants, khadims and Mujawars etc., were dropped, as the management was then to be done by the Chief Administrator of Auqaf and the previously attached persons could no longer claim any attachment with the waqf or its income. I do not think that this is a correct interpretation of the relevant statute. The "purpose" of the waqf has been and is to be preserved as has been shown from. The provisions of law reproduced above, and all that the Chief Administrator of Auqaf takes over, is "the administration, control, management and maintenance of a Waqf property". He is not to interfere with the user of that property, nor himself decide as to whether that user was Islamic or un-Islamic, In this behalf, T may refer to an extract from a judgment of the Supreme Court in Inayatullah v. M. A. Khan (PLD 1964 SC 126) where at page 133 it was held as follows :- "The question, however, is whether the Chief Administrator or his nominee can impose such a ban on user which had existed before the Waqf property was taken over under the Ordinance. The question whether such a user was under the law of Islam, a legitimate user of the property in question or not might be capable of decision in the proper forum, namely, the Courts of general civil jurisdiction. It would, however, be too much to say that a similar power existed in the case of the Chief Administrator under the Ordinance, to decide such religious issues. On the contrary, the language employed in section 13 itself suggests that it is the duty of the Chief Administrator to carry on the user of the Waqf property for the purpose for which it was dedicated or for which it had been used. In certain respects under the last clause of this section, he might even be competent to permit the user of the Waqf property for any other purpose, "recognised by Islam as religious, pious or charitable, but that does not imply a power to upset practice claimed to be of a religious character established in the past."
15. That was a case of a practice of holding Khatam Ghausia in a mosque and it was held that such a Khatam could not be discontinued after taking over. Though the point involved there was of a different use, but the passage quoted above is general in nature and since it interprets and declares law, it is applicable to any other kind of use of Waqf property also. Again, if each waqf is to go by its own incidents, practices and rules customary or otherwise, then these incidents are to be preserved and are not to be destroyed by the Chief Administrator of Auqaf. Similarly, it is highly doubtful if the act of taking over was intended to work as a dismissal or turning out of the century- old servants of a shrine lock, stock and barrel. If not all, some of them, more deserving and well- known for piety etc., will have to be associated with the matters of the shrine. If such persons are kept away or if in any given scheme there is no scope for them or if the stipends of any beneficiary or a class of beneficiaries are arbitrarily stopped, the Chief Administrator of Auqaf cannot claim immunity, as in proper proceedings instituted for the administration of a waqf, he may be required to do that, which it is his duty to do. Learned counsel for the Auqaf Department argued that the Chief Administrator of Auqaf, after taking over was sole incharge of the waqf affairs as the Waqf property exclusively vested in him and that his actions could not be questioned in any Court of law.
It was submitted that he could drop any of the objects of waqf or beneficiaries or class of beneficiaries. The contention is not correct. There is nothing to show in the relevant Ordinance that Waqf Property vests in the Chief Administrator of Auqaf and as a matter of fact it cannot be so because Waqf property vests only in God. The Chief Administrator of Auqaf, as his name suggests, is merely a sort of Manager or a Mutawalli. He may be sued under section 92 of the Civil Procedure Code for the reliefs mentioned therein and in a proper, case a Court of competent jurisdiction may issue necessary directions to him regarding the administration of waqf and other matters indicated in the said section. For facility of reference the said section is reproduced below :- "Section 92. Public charities.-(1) In the case of any alleged breach of any express or constructive trust created for public pur--poses of a charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-
(a) removing any trustee ;
(b) appointing a new trustee ;
(c) vesting any property in a trustee ;
(d) directing accounts and inquiries ;
(e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust ;
(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged ;
(g) settling a scheme ; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in subsection (I) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection."
Section 3(3) of the West Pakistan Waqf Properties Ordinance states that :- "3(3). The Chief Administrator shall be a corporation sole by the name of the Chief Administrator of Waifs, West Pakistan, and shall have perpetual succession and an official seal, and may sue and be sued in his corporate name."
This shows that Chief Administrator of Auqaf is not all so powerful by himself. In his own turn, he is under section 3(4) subject to the general control of the Government. He is required to maintain accounts under section 14 etc. I need not enlarge the discussion any further and confining myself to the point in hand, will hold that Explanation 4 is no bar to the grant of relief to the petitioners with regard to the income involved herein because it has not been shown to me that allowing the petitioners to share in the property will be un-Islamic from the point of view of religion, piety and charity and will be derogatory to the concept of the property being waqf. It was argued that the petitioners at the most were Mutwallis or Mujawars of the shrine and the moment the Chief Administrator of Auqaf takes over and resumes the administration, control, management and maintenance of a shrine, this ipso facto has the effect of removing the previous Mutwallis or Mujawars. I do not agree Taking over of an institution is one thing but removal of the staff is an altogether different thing. "Taking over" can work even by the retention of the old staff as well, and the process of taking over means a sort of supra supervision and control over the persons already incharge of these institu--tions. Learned counsel for the Department relied upon Haji Ghulam Rasul and others v. Chief Administrator of Auqaf (PLD 1966 Lab. 978) for the purpose of showing that Mujawars or servants as such have no interest in a Waqf property. The ruling cited is not applicable inasmuch as there the claim as "beneficiary" was not considered and the decision was confined merely to claim as Mujawars and servants simpliciter. Again there is a difference between Mujawars, simplicitors and Mujawars who also perform religious and spiritual functions in a waqf institution. The latter occupy a religious office in the institution concerned and it is not within the ambit of the West Pakistan Waqf Properties Ordi--nance to destroy those offices or to throw out the said Mujawars without any fault or defect in them as a whole or in any one of them individually as the case may be. The distinction between Mujawars simpliciters and Mujawars occupying religious offices and performing spiritual and religious function in an institution of waqf has been maintained throughout in series of cases, where for example question arose as to whether a female can be appointed as a Mujawar or not. It was held that where this office embraced performance of religious, functions, duties and ceremonies there a female was not eligible for appointment. See for example Hussain Beebee v. Hussain Sherif and another ((1868-69) 4 Mad. H C R 23), Mujavar Ibrambibi v. Mujavar Hussain Sherif and another (I L R 3 Mad. 95), Munawar Begum Sahibu v. Mir Mahapalli Sahib and 2 others (I L R 41 Mad. 1033), and Hussain Haji Subhan Mujavar and others v. Sayed Khairuddin Kutubuddin (AIR 1939 Bom. 487), decided with reference to Shahar Banoo v. Aga Mahomed Jaffer Bindaneem and others (34 1 A 46 (P C)). This was affirmed in Abdul Aziz v. Mahomed Ibrahim Ghatkar! (AIR 1941 Bom. 238). It may further be mentioned that the view the Tyabji, J. In Zoolika Bibi and another v. Syed Zynul Abedin (1904) 6 Bom. L R 1058) as to what are religious and spiritual offices and functions was taken exception to in Mst. Azimunnisa Begum v.
Sirdar Ali Khan and others (AIR 1927 Bom. 387) and it was held that the matter must rest upon the beliefs of the people. This is the view of our Supreme Court also in Sheikh Inayat Ullah and others v.
M. A. Khan and others. For which ceremonies and functions are religious and spiritual see Biba Jan v. Kalb Husain and others (I L R 31 All. 136), Ismail Ali Khan and others v. Mst. Hamid! Begum and others (AIR 1921 Pat. 125), Haji Abdul Rahim v. Haji Hamid Moosa and others (5 Bom. L R 1010), Abdulsakur Haji Rahi-matulla and others v. Abubakkar Haji Abba and others (AIR 1930 Born. 191), Muhukana And Raolanadham Chettiar v. Vava Levval Marakayar and others (I.L.R. 34-Mad .12.) affirmed in Ramanandan Chettiar v. Vava Levvat Marakayar and others (I L R 40:Mad. 116) and Mohammed Shafi v. Muhammad Abdul Aziz and others (AIR 1927 All. 255), A waqf has three ingredients, namely, the waqif the beneficiaries and the Mutawalli. The interest of beneficiary is a valuable interest and is property in tile juristic sense of that term. When the petitioners said that such and such share in the property in dispute belongs to them it did not mean that the property was not waqf but that they had a beneficial interest to a particular extent vested in them which was their property. Waqf property is one thing but a beneficial interest in that property is another thing. Both exist side-by-side. The beneficial interest which belongs to a beneficiary is not Waqf property in its own turn. At this stage, it may be mentioned that in Muhammadan Law, division of property is in this way, that corpus is one thing but beneficial interests in that corpus are species by themselves. The corpus vests, in a waqf, in God, but beneficial interest vests in benefi--ciaries.
Explanation 4 makes corpus as a waqf but does not say who are the beneficiaries of that corpus.
That matter has to be determined according to the practices, customs and conventions of any waqf institution on its own facts, features and circumstances. Merely because a waqf is taken over by the Chief Administrator of Auqaf, it does not mean that the waqf is destroyed or beneficial interest of the beneficiaries therein becomes extinct. Had that been the situation, the Legislature would have so provided, as for example, was done in the case of waqf-alal-aulad of agricultural land under paragraph 10 of the West Pakistan Land Reforms Regulation No. 64, where all beneficial interest were brought to an end by distributing the lama among the beneficiaries in the manner indicated therein. In the West Pakistan Waqf Properties Ordinance, there is no such thing and merely by taking over a Waqf property, beneficial interests of century-old beneficiaries cannot be put an end to.
16. The view which I have taken can be supported from another point of view and that is that by Proclamation of the Chief Martial Law Administrator dated 25-3-1969 (herein--after called the Proclamation) the whole of Pakistan was placed under Martial Law. In paragraph 5 of the Proclamation, it was written :- "Notwithstanding the abrogation of the Constitution and subject to Regulations or Orders' made by the Chief Martial Law Administrator-
(a) all laws including Ordinances, Martial Law Regulations, Orders, rules, bye-laws, regulations, notifications and other instruments, in. Force immediately before the abrogation of the Constitution shall continue in force."
The provision reproduced above will show that the continua--tion of old laws was subject to the Regulations or Orders to be issued by the Chief Martial Law Administrator. In the Provisional ofConstitution Order, dated the 4th of April 1:969, it was stated in Article 2 that :- "2. Save as otherwise provided in this Order, the Provisions of this Order shall be in addition to and not in derogation of the Proclamation and shall be read and construed accordingly."
"3(3) Paragraphs 2, 4, 5, 6, 7, 8, 9, 13, 14, 15 and 17 of the Fundamental Rights set out in Chapter 1 of Part II of the said Constitution shall stand abrogated and all proceedings pending in any Court, in so far as they are for the enforcement of those Rights shall abate."
This means that the following Fundamental Rights (by process of elimination) were saved by the Provisional Constitution Order, namely :- In the instant case, we are concerned with Fundamental Right No. 10, which reads as follows :- 10.-Freedom to profess religion and to manage religious institutions.
Subject to law, public order and morality-
(a) every citizen has the right to profess, practice and propa--gate any religion ; and
(b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions,"
Clause (b) reproduced above shows that every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions. This right is to be exercised subject to law, public order and morality. The West Pakistan Waqf Properties Ordinance, 1961, which is the prevalent Statute on the subject, definitely interferes with that right, if it wipes off and completely prohibits any religious denomination and sect to maintain or manage its religious institutions. Probably, it was inter aria for this reason that this Ordinance was specifically placed at Item No. 2 of Part V of the Fourth Schedule of the Constitution and protected by Article 6(3) (ii) and was made immune from challenge on the ground of violating any fundamental rights. Now, however, the law-giving provision is Paragraph 5 of the Proclamation and all laws are subject to Orders of the Chief Martial Law Administrator and President. The Provisional Constitution Order of the Chief Martial Law Administrator and President has itself given Fundamental Right No. 10 and it has not granted immunity to any law of the kind as was contained in Article 6(3) (ii) of the late Constitution. The grant of Fundamental Rights, hereinbefore mentioned, is a new and fresh grant by the present President and Chief Martial Law Administrator and his order and grant cannot be made subordinate to the provisions contained in the late Constitution which he abrogated. His grant is above that Constitution and not subordinate to it. The Article containing this grant is unequivocal, unambiguous and unconditional. I cannot read restrictions and limitations into the said grant of the present President and the Chief Martial Law Administrator. In other words, any existing law and as a matter of fact even future law which comes into conflict with the Fundamental Rights granted by the Provisional Constitution Order will be void. In this way, in order to save the West Pakistan Waqf Properties Ordinance, 1961, it has to be held that the taking over of the management by the Chief Administrator of Auqaf is of a supervisory character and is not intended to destroy the vested rights of all those who already used to manage the waqf or share in its income as beneficiaries etc. Any other interpretation will bring a serious attack on the validity of the Ordinance. That waqf is a religious institution is well established as held in Jibendrar Kishore Achharyya Chaudhary and 58 others v. The Province of East Pakistan (PLD 1957 3 C (Pak.) 9). The persons or any particular family which may have been managing a waqf can well be called a religious denomination or a sect of its own type. If they as an institution had been managing the waqf or receiving benefits from its income as a beneficiary as well, then Fundamental Right No. 10 preserves their rights to them. If the Statute is .Interpreted in the light of this aspect of the matter, the view, that in spite of taking over of a waqf, the rights of persons "permanently attached" with that waqf, as Mujawars or beneficiaries, are not destroyed, is a just and proper view. Again, one should not be obsessed as to with what name the previous beneficiaries were called. Due to their humble nature or otherwise, they might have been called a Khadims, Mujawars or servants of a shrine, but if all of them were not performing the duties and functions of Khadims and Mujawars or servants but still had been sharing the income as a beneficiary for centuries and centuries, then regardless of their nomenclature, they can be called as established beneficiaries) and merely because now the administration, management and supervision of the shrine is taken over by the Chief Adminis-- trator of Auqaf that should not affect the rights of the aforesaid established beneficiaries.
17. The upshot of the above discussion is that Appeals Nos. F. A. O. 53 and 54 of 1962 are rejected and Appeal No. 47 of 1962 is accepted and it is held that the appellants therein are entitled to share in the property in question so far as income accrued before taking over is concerned up to the extent of the shares claimed by them but so far as the income after taking over is concerned, the same is their basic share but can be varied by the Chief Administrator of Auqaf keeping in view the changed circumstances, if any, which share he shall have to fix in accordance with law. The parties shall bear their own costs.
Fundamental Right No. 1 :dealing with Security of person; Fundamental Right No. 3 :dealing with Prohibition of Slavery and forced labour ; Fundamental Right No. 10 :dealing with Freedom to pro--fess religion and to manage religious institutions ; Fundamental Right No. 11 :dealing with Safeguards against taxation for purposes of any particular religion ; Fundamental Right No. 12 :dealing with Safeguards as to educational institution in respect of religion etc. ; Fundamental Right No. 16 :dealing with Non-discrimina--tion in respect of access to public places ; Fundamental Right No. 18 :dealing with the Preservation of culture, script and language; and