This appeal is directed against order dated 30-4-1970, passed by learned District Judge, Lahore dismissing two applications moved by the appellants under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, seeking a declaration that the properties attached to Badshahi Mosque, Lahore detailed in Notification dated 23-6-1961 issued under section 6 of the said Ordinance through which the Chief Administrator of Auqaf took over the said properties, vested in the appellants and be made over to the appellants for proper use on the mosque in accordance with the wishes of Waqif and a direction was also sought to the Chief Administrator Auqaf that the properties in question be managed in consultation and under the advice of appellants in a suitable manner as provided in Section 11 (2) of the said Ordinance because the appellants held the mosque very dear of them, considering the interest of the mosque above their own interest and were prepared to cooperate with the Auqaf Department.
2. Through the second petition they sought a declaration that the properties mentioned in Notification No. 3 (564) Auqaf-61 dated 26-4-1962 in pursuance of which Badshahi Mosque itself alongwith other properties listed in the schedule thereof was taken over, was a Waqf property within the limits stated in the petition.
3. These two petitions were contested by the respondent and the learned District Judge, Lahore through the impugned order dated 30-4-1970 dismissed both the petitions.
4. The case of the appellants mainly rested on the plea that on the completion of the Badshahi Mosque, the appellants' ancestor Maulana Syed Noor Muhammad, was by a royal mandate made its first Imam and Mutawalli therefore, this Imamat and Mutawalliship of the mosque were to remain with his descendants. According to them in 1890 the management of the Mosque was made over to the Anjuman-i-Islamia Punjab, Lahore through its founder Nawab Sir Nawazish A.I Khan Qazilbash, on the express condition that the said Anjuman would serve under the directions and with the permission of hereditary Mutawalli-cum-Imam Family of the appellants and would also arrange the performance of the three centuries old Dastarbandi ceremony on the occasion of both Eids. It was claimed that the Tauliyat and Imamat of Mosque and all properties yielding income for the purpose of maintenance of the Mosque vested, by the order of the founder, automatically in the appellants and the said income could not be received or spent by anyone else including the respondent. They also claimed that as successors of Maulana Noor Muhammad, they being the perpetual and hereditary Imam and Mutawalli of the Mosque, were entitled under the law to hold these offices according to the wishes of the dedicator and the long-standing traditions.
5. The appellant No. 1 who argued the appeal himself contended that the very West Pakistan Waqf Properties Ordinance, 1959 and subsequent legislation, on the subject were ultra vires of Islamic injunctions therefore the said notification issued under the provisions of the said Ordinance are illegal and void. He also maintained that as Mutawalli of the Mosque by succession according to intention of the dedicator they were entitled to receive the income of the properties attached with the Mosque and spend it according to the intention of the dedicator and they are also entitled to arrange for performance of their Dastarbandi Ceremony on the occasion of both the Eids, which right was being denied to them by the respondents. He further argued that by virtue of application of the Ancient Monuments Preservation Act, 1904 to the properties in question, the act of taking over the same by respondent was illegal and had rendered the respondent a trespasser.
According to him the said act was a Central Law therefore, no action could have been taken under the West Pakistan Ordinance which is a Provincial law and must yield to the Central Law. He also complained that as successors of the Mutawalli the appellants are also entitled to be associated as all the functions and ceremonies including the matters regarding reception of foreign dignatories visiting the Mosque.
6. I have considered the arguments of the appellants and find no force in them. Once under section 6 of the said Ordinance a notification was issued through which the Chief Administrator Auqaf took over and assumed the administration control, management and maintenance of a Waqf Property over--all administration of the property vests in him and no Mutawalli could claim that he continued to hold the administrative control, management and maintenance of such property. The act of recovery of income of taken over Waqf property and its spending mainly is an incident of administration of Auqaf. It was not denied that the properties governed by both the notifications were Waqf Properties to which the said Ordinance was applicable. Under Section 7 of the Ordinance, the declaration could only be sought by any person in respect of an interest in the Waqf property and the nature of the declaration envisaged by the said section is as follows:- (a)That the property is not Waqf property; (b)That the property is Waqf property within the limits stated in the petition.
7. The alleged rights of holding Ceremonies in the Mosque like Dastarbandi or that the appellants were vested with rights as Mutawalli to administer, receive and spend the income of the Waqf property were neither such rights which can be held to be an interest in the Waqf property itself as these matters relate to management of Waqf property nor the said rights could be held to be any limits attached to the Waqf property as such. The right to hold Dastarbandi Ceremonies of the appellants as Mutawalli through succession is a right which was attached to the office of Mutawalli itself which having extinguished on the issuance of notification under section 6 of the Ordinance therefor, it was rightly held that there was no independent right to hold such ceremonies. This is apart from the fact that there was no evidence produced by the appellants regarding any agreement with the Anjuman-i-Islamia Punjab in pursuance to which the appellants claimed right to hold Dastarbandi Ceremony.
8. In order to support his submission for Dastarbandi Ceremonies the appellants placed reliance on judgment reported as Sh. Inayat Ullah and others v. M.A.Khan and others (P.L.D. 1964 S.C. 126) which is not applicable to the facts and circumstances of this case. That was a case in which Khatam Sharif Ghausia Alia was stopped by the Chief Administrator of Auqaf and it was held that it would be permitted to be held in accordance with the past practice subject to its regulation as to time etc.
9. As to the argument that the Ordinance, itself is ultra vires of Islamic Law the remedy of the appellants is either to approach the Federal Shariat Court or the Shariat Bench of the High Court under the Shariat Ordinance and vires of law itself under which the appellants moved the Court, cannot be allowed to be called in question. Likewise, Monuments Preservation Act, 1904 is a law which has been enacted for the preservation of the ancient monuments, for the exercise of control over traffic in antiquities and over excavation in certain cases etc and it is not provided in the said act that the Department of Archaeology would take over control over the property as a trustee. The department under the said Act is concerned with the property for a limited purpose mentioned in the said Act and no provision of the said Act is in conflict or inconsistent. With the provisions of the Ordinance, therefore, the argument has no substance.
10. I have gone through the judgment of the learned District Judge and find no illegality therein. The findings recorded by the learned District Judge are perfectly in accordance with law and the material brought on the record. The appellants have not been able to persuade me that such findings are vitiated by misreading or non consideration of the evidence. The appeal fails, which is hereby dismissed with no order as to costs.
H.B.T./N-210/L