This is a revision petition filed by the petitioners under section 27 of Land Reforms Act, 1977 praying for the issuance of a direction to the Dy. Land Commissioner, Sahiwal to implement his order dated 27-2-1978 and resume the excess land from respondents Nos.l to 3 and allot the same to the petitioners in accordance with law. But during the course of arguments the learned counsel for the petitioners made a verbal request that a direction be also issued to the Dy. Land Commissioner Sahiwal under section 18(4) of the Land Reforms Act, 1977.
2. The brief facts of the case are that on the application of the petitioners who are landless cultivators of lands attached with the shrine of Baba Farid situated in Tehsil Pakpattan, District Sahiwal, the Dy. Land Commissioner, Sahiwal, vide his order dated 27-2-1978 called upon respondent No.3 and directed him to submit his choice in respect of the area to be retained by him to the extent of 8000 PIUs. But he did not comply with the order and instead respondents Nos.l to 3 challenged the said order in the Lahore High Court, Lahore in Writ Petition No.1368-78 and, subsequently, withdrew the same which was disposed of accordingly by the Division Bench of the said Court on 2-6-1982. After disposal of this writ petition the learned Dy. Land Commissioner, Sahiwal again called upon respondents Nos.l to 3 to submit Form LR-1977(I) by 28-6-1982, in compliance with his previous order dated 27-2-1978. But the respondents got the proceedings filed on 8-7-1982 on the pretext of status quo order dated 30-3-1980 issued by the Federal Cabinet.
3. The petitioners submitted that they agitated their claim through Writ Petition No.1500 of 1984 in the honourable Lahore High Court, Multan Bench against respondents Nos.l to 3 who threatened their dispossession from the lands. But the same was dismissed on 8-7-1984 on the sole ground that their remedy to get land under Section 15 of the said Act would come into existence only when the excess land is surrendered by the respondents Nos.l to 3 under Section 7 of the said Act which they had not done so far. Their Leave to Appeal was also refused by the honourable Supreme Court on 13-9-1988 on the same ground. The petitioners have now submitted this petition that a direction under section 18(4) of the Act be issued to the Deputy Land Commissioner, Sahiwal for the implementation of his order dated 27-2-1978 and the excess land so resumed be granted to them under section 15 of the said Act free of charge.
4. Preliminary arguments of the counsel of the petitioners were heard on 16-4-1989 at Lahore. Mr. Riaz Kiani, Advocate, appeared on behalf of respondents Nos.l to 3 and accepted the notice on their behalf on the same date. The case was fixed for arguments on 15-6-1989 at Lahore. Counsels for petitioners and respondents Nos.l to 3 appeared in the Court while nemo represented respondent No.4. The Record Keeper of respondent No.5 was also present. Arguments of both the learned counsels were heard at length. During the arguments Mr. Riaz Kiani, Advocate, raised a preliminary objection and requested the Court to transfer this case to some other member of the F.L.C. For hearing as they did not expect fair deal at the hands of the Chairman, F.L.C., who according to them had earlier made a press statement that lands above the ceiling of 8000 PIUs will be resumed from the Auqaf Department and will be distributed among the sitting landless tenants free of any charge. This statement by the Chairman, F.L.C. Was quite in accordance with the provisions of Land Reforms Act II of 19'77. The question of bias against respondents Nos.l to 3 did not arise as they are Government functionaries and the Chairman had no personal animosity against them. Moreover the Court has only stated in the newspapers on 27-3-1989 the provisions regarding the waqf land. The apprehension of the respondents was ill-founded, hence rejected.
After hearing the arguments it was considered desirable to get written arguments by the counsels of both the parties, who were directed to submit the same by the next date of hearing i.e. 18-7- 1989.1 have gone through the written arguments submitted by both the parties. The counsel for the respondents raised certain points and sought dismissal of the petition on the following grounds:-
(i) That the Chairman, Federal Land Commission cannot resume the land in question in the presence of the status quo order issued by the Federal Cabinet;
(ii) That the status quo order of the Federal Cabinet is binding on the Chairman, Federal Land Commission;
(iii) That the wakf property vests in Almighty Allah. Usufruct of such property can only be utilized for the benefit of the mankind or for any purpose recognized by Islam as religious, pious or charitable; and
(iv) That in the definition of the word "person" under section 2 (7) of the Act, the. Words 'every trust Whether public or private' has been included and the word 'wake has not been added with it.
Therefore the wakf, whether it may be public or private, cannot be deemed to be "person" for the purpose of the Act. Reliance was placed on PLD 1973 Lahore 327 and also 1985 CLC 700.
5. Counsel for the petitioners controverted the aforesaid pleas raised by the counsel for the respondents and submitted that there was no status quo order regarding the amendment of definition of "person" given in section 2 (7) of the Act, nor there was any such order prohibiting the Federal Land Commission or any authority subordinate to it to do their lawful duty under the Act. He also submitted that if section 2 (7) and section 17 (c) are read together the wakf, whether public or private, very much comes under the definition of "person" and respondents cannot keep more than an area equivalent to 8000 PIUs. The counsel further emphasised that grant of excess land under section 15 of the Act to the landless tenants on free of any payment of rent, without divesting the ownership rights in the wakf, is the best use of the property for the mankind and is quite in accordance with the injunctions of Islam as religious, pious and charitable. Reliance was placed on PLD 1981 FSC 23.
6. 1 have carefully considered the arguments of both the counsels of the parties, and have also gone through the written arguments. The main objection of the learned counsel for the respondents is that the Federal Cabinet has granted the status quo order on account of conflicting opinions given by the Federal Shariat Court in PLD 1981 FSC 23 and the Council of Islamic Ideology.
Therefore, the Federal Land Commission cannot proceed in the matter. The decision of the Federal Cabinet is as follows:- ---The Cabinet decided that the consideration of the amendments in section 17 of the Land Reforms Act, 1977, proposed in summary dated 26th March, 1980 submitted by the Cabinet Division may be deferred and the status quo may be maintained in this behalf for the present."
7. A perusal of the decision of Federal Cabinet would clearly show that it has been wrongly interpreted to mean that there was any prohibition in dealing with the wakf property under Act II of 1977. The matter before the Cabinet was for the amendment of section 17 of the Act which deals with utilization of earlier resumed lands including the wakf land in addition to its use given under section 15 ibid. Provisions of section 17 would come into play only if the resumed land under section 9 of the Act is not granted to the sitting tenants and if the Provincial Government with the approval of the Federal Government thinks it for the public interest to utilize the same in the manner given in section 17 of the Act. The decision of the Cabinet shows that the legal position of section 17 was left as it was and no amendment was approved. The decision of the Cabinet means only that the executive should stay their hands off from this matter so far as amendment of section 17 was concerned. The words `status quo' used in the Cabinet decision never meant to allow the Auqaf Department to continue to hold the wakf property in derogation of the Act as asserted by the counsel for the respondents. Needless to say that there was any proposal for amendment of definition of "person" or exclusion of wakf whether private or public from the ambit of Act II of 1977.
8. Powers of the Federal Government are clearly stated in section 27 of the Act and no such matter was before the Federal Government as given in section 17 at the time of Cabinet decision. The powers exercisable under section 27 (2) cannot be exercised ex parte. Moreover, an executive order cannot take precedent over the judicial order as it has been held by the honourable High Court in 1982 CLC 1026. In this view of the matter the judicial order of the Deputy Land Commissioner Sahiwal dated 27-2-1978 is quite lawful and the Federal Land Commission is well within its powers to get it implemented under section 18 (4) of the Act. The status quo order issued by the Federal Cabinet does not debar the Federal Land Commission to do its lawful duties, but also having kept intact the provisions of section 17 of the Act makes it obligatory upon it to implement the Land Reforms in its letter and spirit.
9. So far as the point raised about the wakf property is concerned it is true that the ownership of wakf property vests in Almighty Allah but its usufruct can be used for the benefit of mankind or for any purpose recognized by Islam as religious, pious or charitable. The framers of law had this point in mind at the time of enactment of Land Reforms Act 1977. Chapter V deals with the utilization of surrendered land. Section 15 permits only granting of land free of charge to the tenants while section 16 puts further bar on the said grantee so much that he would not be allowed to alienate the grant land for a period of 20 years nor he would be in a position to sub-let the same even after 25 years. In my opinion there cannot be any other better use of this property than by allotting the same to the poor landless tillers of the soil so that they may earn their livelihood out of it and feed and bring up poor and downtrodden children to make them respectable citizens of the society.
According to the injunctions of the Holy Qur'an God has created every human being respectable on account of his being human. "(Indeed We have honoured the children of Adam)". It is further ordered in the Holy Qur'an at so many places that the needy person has a right in the property of believers. He can get it as of right.
10. Section 2 (7) read with section 17 (c) of the Act makes it clear that the framers of law included the wakf in the definition of "person" and the same was to be dealt with accordingly. Moreover under Article 253 (a) of the Constitution of the Islamic Republic of Pakistan, the Parliament is authorised to prescribe the minimum limit as to property or any class thereof which may be owned, held, possessed or controlled by any person. Article 260 ibid defines "person" including any body politic or corporate. Expression "body politic" or "corporate" includes, even an artificial or juristic person. Wakf being a juristic person is, therefore, included in definition of person as given in Article 260 ibid. The Full Bench of Federal Shariat Court in its decision reported in PLD 1981 FSC page 23 has specifically held as follows:-- "Land Reforms Act (II of 1977) read with Constitution of Pakistan (1973), Articles 203-D, 253 (2) & 260--Waqf--Repugnancy with injunctions of Islam--Declaration--Word "person" defined in Article 260 including any body politic or corporate--Expression body politic or corporate--Includes even an artificial or juristic person--Waqf being a juristic person, hence, held included in definition of "person" as given in Article 260, ceiling placed on Waqf property validated by Article 253 and Land Reforms Regulation, 1972 and Land Reforms Act, 1977 immune from challenge to such extent.
11. This follows therefore that the wakf was a person within the meaning of "person" as defined in section 2 (7) of the Land Reforms Act and as clarified vide 1 letters dated 5-1-1978 and 1-3-1978 which are Annexures `A' & `B' with the petition and the same has not been amended or varied so far.
12. It seems that the provisions of section 17 (c) of the Act were not brought to the noticeof the honourable High Court in the case relied upon by the counsel for the respondents 1985 CLC 700.
Moreover, in that authority the use of surrendered land if granted to the landless tillers of the soil has not been held against the benefit of mankind or for not any purpose recognized by Islam as religious, pious and charitable. Thus taking the excess wakf land from the control of the respondents and granting it to the petitioners was quite in accordance with law and provisions of the Constitution of the Islamic Republic of Pakistan and quite in accordance with the injunctions of Qur'an and Sunnah. During the arguments the counsel for the respondents was confronted with the situation by this Court that how 72 sq. Of land attached with the shrine has been released to the Sajjada Nasheen last year for his personal use and was it a charitable, pious or religious purpose, and how the excess land cannot be given to the poor tenants under the Land Reforms Act, 1977? He had no answer but to say that it was done under the executive orders of the government and the same would follow for the tenants if the Government so directs. It is pertinent to note that respondents Nos.l to 3 have been illegally recovering rent from the petitioners from 27-2-1978 onwards for the lands above the limit of 8000 PIUs to which they had no title whatsoever. In view of the above I accept this petition and direct the Dy. Land Commissioner Sahiwal to implement his order dated 27-2-1978. The Dy. Land Commissioner Sahiwal is further directed to leave area equivalent to 8000 PIUs to the respondents in a compact block if the respondents fail to notify their choice of area equivalent to 8000 PIUs within 15 days of the announcement of this order and distribute the resumed land under section 15 of the Act to the sitting tenants who may have been recorded as tenants either on produce or rent basis. The implementation of this order be made at priority basis within two months as this matter is lingering on for over twelve long years.
13. Announced in the presence of the parties. Copy of this order may be sent to DLC Sahiwal for implementation. I leave the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.