' In this Constitution petition the petitioners pray for a direction against respondent No,1 for providing them the due shares of the benefit out of the income of the Waqf property from the date of taking over upto date and should perform his functions strictly according to the terms and conditions of the 'Farman' in letter and spirit for which he was duty bound to do and also to look after the Waqf properties properly and save the same from being wasted. It has also been prayed that the Notification issued under section 4 of the Land Acquisition Act, bearing No, 755- LAC/DC/BWP, dated 30-12-1984 to the extent of Waqf property be struck down as having been issued illegally and without lawful authority and respondent No,1 be directed to stop paying usufruct to any person or institution other than those who is included in the list of beneficiaries as given by the dedicater himself.
2. The facts giving rise to this Constitutional petition concisely stated are that the land measuring 2,285 acres situated in villages Dera Izzat (876 acres), village Aghapur (790 acres), Hootwala (417 acres), Ranman (154 acres) and Nowshehra (48 acres) was owned by late Sir Sadiq Muhammad Khan Abbasi, Amir of Bahawalpur. He issued a Farman on 4-4-1958 through which Waqf was created in respect of said lands and the beneficiaries of this Waqf listed in this Farman were as follows:-- ' The petitioners claim to be one of the beneficiaries of this Waqf as members of the Abbasi Ruling family who had been drawing political pensions out of the income of the properties owned/controlled by late Amir of Bahawalpur, as such, their case was that they had acquired inalienable right according to the Injunctions of Islam in the income of the said waqf properties.
According to the petitioners so long as the said waqf properties were being controlled and managed by the Managers/employees deputed by the late Ruler, they had been provided with the share of usufruct regularly. On the promulgation of Land Reforms Regulation No,64 in the year of 1959 an order was passed by the Deputy Land Commissioner, Bahawalpur on 31-3-1961 according to which the said land was excluded from the personal holding of Amir of Bahawalpur and treated as waqf property. The creation of waqf through the said Farman was treated as valid. It appears that it was so done because under the said Martial Law Regulation only properties subject for waqf-ul-aulad were to be treated as personal holdings of the owners for determining the maximum sealing which he could retain and regarding the properties subject-matter of waqf of other nature the same was treated as a valid not resumable being not the holdings of the dedicater/owner.
3. Subsequently on 30-4-1966 the dedicater i.e. Amir of Bahawalpur executed a document which was described as a Trust Deed which was signed by S.A. Hashmi, Minister-in-Waiting to his Highness and Muhammad Nawaz Tareen his Household Secretary as witnesses in which certain matters were explained regarding the Farman earlier issued on 4-4-1958. No mention was made as the amount which was payable to the beneficiaries mentioned in the Farman as pensions.
4. The Chief Administrator of Auqaf under the West Pakistan Auqaf Properties Ordinance, through notification issued on 19-4-1972 took over the possession, control and management of this land as waqf propertiess and through subsequent decision, dated 26-4-1972 the names of the beneficiaries mentioned in the Farman were eliminated. In the year 1972 Land Reforms Law i.e. Martial Law Regulation No, 115 was enforced. Respondent No,4 acting as Deputy Land Commissioner through order, dated 13-3-1973 held that the land to the extent. of 71,835 P.I. Units was excess land and District Manager, Auqaf was allowed to exercise right of choice of retaining land to the extent of 12,000 P.I. Units the maximum ceiling fixed in the said MLR which he wanted to retain. The Deputy Manager gave choice to retain land equivalent to 12,000 P.I. Units in two villages, namely Aghapur and Hotwala. An appeal was filed against the said order of Deputy Land Commissioner which was rejected through order, dated 31-3-1973 by the Commissioner. An application was filed seeking review of the said order. The sanction was granted by the Commissioner through order, dated 4-4-1973, for review of the earlier orders, dated 13-3-1973 and 31-3-1973 but ultimately the review petition was dismissed. Through order, dated 31-5-1973 the D.L.C. resumed the excess land. Subsequently on 30-12-1984 through notification issued under section 4 of the Land Acquisition Act, bearing No, LAC/DC/BWP/775 through which some of the land was intended to be acquired for the purpose of extension of Cantonment Area of Bahawalpur alongwith other land not subject-matter of the waqf.
5. According to the petitioners as asserted in this writ petition all these proceedings, acts, policies and schemes relating to appropriation of the income of the waqf property on behalf of the respondents already done or to be done were without lawful authority and not in consonance with the wishes of the dedicators. They have also challenged the act of Auqaf Department regarding elimination of their names from the list of beneficiaries after the management and control of the properties were taken over as also the right or power of dedlcater to affect any change regarding the purposes for which the waqf was originally created and to exclude the names of any of the beneficiaries or change its terms, as such, the subsequent Trust Deed, dated 30-4-1966 according to the petitioners did not have the effect of adversely affecting the original waqf created through Farman, dated 4-4-1958 and the rights flowing therefrom.
6. We have heard learned counsel for the petitioners, learned Assistant Advocate-General who has appeared on behalf of respondents Nos.2 to 4 and learned counsel for Auqaf Department. Mr. Ahmad Hassan Khan, Advocate, learned counsel for the writ petitioners in connected Writ Petitions No,210/83 and 120/93 who are tenants has also been heard on his request as the said writ petitioners were likely to be affected by the judgment to be delivered in this writ petition.
7. Learned Assistant Advocate-General as also Mr. Ahmad Hassan Khan, Advocate, submitted that according to the judgment reported as Siraj Din v. Sultan and others PLD 1990 SC p.95 the declaration. regarding repugnancy of certain provisions of M.L.R. 115 to the Injunctions of Islam is operative from the date fixed in the said judgment and the decisions made prior thereto are not affected. The said declaration and its operation is only limited to the determination of question of validity of impugned orders on the touchstone of Injunctions of Islam whereas it does not debar the petitioners from challenging the validity of impugned orders on the touchstone of the law i.e. M.L.R.
115 itself and the jurisdiction of this Court under Article 199 is not ousted to determine the validity of orders and acts passed and performed by the statutory functionaries on the touchstone of law under which the same were passed and taken.
' Under paragraph 8 of M.L.R. 115 it is provided that save as otherwise provided in this Regulation, no person shall, at any time, own or in any capacity possess land in excess of one hundred and fifty acres of irrigated land or three hundred acres of unirrigated land. It is manifest from this provision of law that even the possession of land by any person in any capacity other than as owner beyond the sealing fixed therein is not permissible and such person in possession of land in excess of the ceiling is within the mischief of this Regulation. This being so, the Chief Administrator of Auqaf who was possessing the land in dispute for the purposes of management and control. Since 19-4-1972 was a person to whom this Regulation was applicable and unless he was excepted or saved from the provisions of the said Regulation was required to file declaration under the said Regulation and surrender excess land falling beyond the sealing fixed in Paragraph 8.
9. The question which arises for determination is as to whether the Chief Administrator of Auqaf fell within the purview of expression "person" as used in para. 8 of the Regulation. The term "person" has been defined in para 2(7) of the Regulation. This definition since has material bearing upon the decision of the question raised in this writ petition the decision of which centres around the interpretation of the said definition, therefore, the same is reproduced below in extenso:- Para. 2(7) "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 cooperative or other society, but does not include a Local authority a university established by law, a body incorporated by a Central or Provincial law or an educational institution (a livestock farm or cooperative farming society exempted by Federal Government) from the operation of this Regulation."
' It is manifest from bare reading of this definition that a body incorporated by a Central or Provincial law has been excluded from the ambit of definition of person, as such, under para. 8 anybody incorporated by any of such laws shall be deemed to have been exempted from filing any declaration and saved from the mischief of the prohibition of possessing land in excess of the sealing fixed thereunder. It may be mentioned here that prior to the order of resumption of excess area passed by the Deputy Land Commissioner, Bahawalpur, dated 31-5-1973 the possession, management and control of the land had already been taken over by the Chief Administrator of Auqaf under West Pakistan Waqf Properties Ordinance, 1961. Under the said Ordinance the Government was empowered to appoint the Chief Administrator of Auqaf for the Province of Punjab and Chief Administrator of Auqaf was appointed in pursuance of the said power. According to section 3(3) of the said Ordinance, the Chief Administrator was declared to be a corporation sole by the name of the Chief Administrator of Auqaf, Punjab, having perpetual succession and an official seal who was empowered to sue and be sued in his corporate name. The Chief Administrator of Auqaf having been constituted under the said Provincial law as a body incorporate, therefore, was one of the categories of persons exempted and saved from the provisions of M.L.R.115 by virtue of para. 2(7) of the said. Regulation. The land in dispute possessed by the said body corporate i.e. (Chief Administrator of Auqaf), could not be dealt with and resumed under the same M.L.R. It is necessary to make mention of the fact that the Chief Administrator of Auqaf considering himself to have been saved from the application of the said Regulation did not submit any declaration and the land was resumed through order, dated 31-5-1973 by the Deputy Land Commissioner of his own.
10. Mr. Ahmad Hasan Khan, Advocate, learned counsel for the alleged tenants submitted that Para. 3 of M.L.R.115 provides that the provisions of the said Regulation shall override all other laws and under para. 25 thereof since the excess land was to be allotted/transferred to the tenants in cultivating possession, para 2(7) of the Regulation was overridden by these provisions by virtue of Para. 8.
11. We are afraid in our opinion the argument is plainly unsound. Para. 25 of the Regulation becomes operative only if the land becomes available after resumption as excess land from a person contemplated by the said Regulations as defined in para 2(7) of the Regulation. It is well settled law that the rights conferred on the tenants in cultivating possession under para. 25 do not create any right in the tenants to question the orders passed by the Land Reforms Authorities in the proceedings regarding resumption which was a matter exclusively .between the declarant and the Land Reforms Authorities and till such time the said orders or proceedings become final and the property was held to be in excess of the holding permissible under the Regulation and resumed they have no right in the land. No provision of the Regulation itself could be held to have overriding effect against any other provision because all the provisions are to be construed harmoniously so that none of them is rendered redundant as redundancy of any provision of law cannot be attributed to the legislature or the law matter in enacting the law. Even otherwise these provisions of the Regulations inter se are not in any way overriding or repugnant to each other. The Regulation has to be applied to a person as defined in the Regulation itself and all other provisions have to be given effect accordingly.
12. After having held that the Chief Administrator of Auqaf as possessor of land in dispute was not within the mischief of Para. 8 of M.L.R. 115 by virtue of para.2(7) the necessary consequences to follow is that the orders passed by the Deputy Land Commissioner, dated 13-3-1973 and 31-5-1973 for the resumption of land to the extent of 71,835 P.I. Units being excess land and the order, dated 31-3-1973 passed by the Commissioner in appeal alongwith the order for dismissal of review petition are all void and have no adverse effect on the rights of the Chief Administrator of Auqaf to continue retaining the possession of the land and exercising his power to manage and control the same.
13. The next question which falls for consideration is whether the exclusion of certain beneficiaries as mentioned in the Farman of Amir of Bahawalpur, dated 4-4-1958 was valid. While deciding this question a further question has also arisen as to whether the subsequent Trust Deed executed by Amir of Bahawalpur on 30-4-1966 could be executed and declaration made in the earlier Farman for dedication of properties for the purpose mentioned therein and the beneficiaries listed could be changed subsequently by the dedicater.
14. Learned counsel for the petitioners has taken us through commentry on Islamic law, written by Syed Amir Ali, Fifth Edition. The law relating to Islamic Waqfs has been comprehensively discussed with reference to the Authorities. It has been stated that according to Islamic Injunctions a dedicator while creating Waqf was within his right to reserve to himself the power to change the purpose for which originally the Waqf was created and also to include or exclude therefrom the names of persons mentioned as beneficiaris of the Waqf but where no such power was reserved by him in the original declaration of waqf, he was vested with no right or power to change the purposes for which the waqf was -created and to include or exclude therefrom the names of any persons mentioned to be the beneficaries of the said Waqf. Subsequently the reason for holding this proposition of law based on Islamic Injunctions was that with the dedication of the properties for religious and pious purposes the dedicator was divested of all ownership rights in the property and the property absolutely vested in Almighty God. We have examined the Farman of Amir of Bahawalpur, dated 4-41958 through which the waqf was created and find that no power was reserved by the dedicator to make any amendment in the same as regards the purposes for which the waqf was created as also regarding inclusion therein or exclusion of any name therefrom of the beneficiaries, therefore, the subsequent Trust Deed, dated 30-4-1966 so far as it is inconsistent with the earlier original declaration of waqf, dated 4-4-1958 would be inoperative qua the matters, purposes and beneficiaries mentioned in the original declaration i.e. Farman. Since Chief Administrator of Auqaf was bound by the original declaration as contained in Farman, dated 4-4- 1958, therefore, he also had no power to exclude the name of the beneficiaries mentioned therein.
15. Since the land was dedicated for charitable, religious and pious purposes and was waqf property, therefore, the acquisition of the same under the Land Acquisition Act, for extension of area of Cantonment or any other purpose through Notification No, LAC/DC/BWP/755, dated 30-12- 1984 was void and ineffective as regards the land subject-matter of waqf.
16. Mr. M.S. Iqbal Chughtai, Advocate, learned counsel for the Auqaf Department faintly argued that in the Farman, dated 4-4-1958 the expression "trust" has been used, therefore, it was not a waqf within the meaning of strict sense of Islamic law, as such, there was no waqf created regarding the property in dispute.
17. We are not impressed by this argument. It is firmly settled law that while construing the document in order to determine its true nature, import and scope the Court has to take into consideration the whole of the document itself and in ascertaining as to what was the intention of the executant no matter whether the same was described by a particular name. After examining the Farman, dated 4-4-1958 we are of the firm view that in all respect it was the waqf created by Amir of Bahawalpur and the purposes for which the same was created were expressly and distinctly mentioned and beneficiaries were also clearly indicated and the purposes for which the property was dedicated was charitable, religious and pious, therefore, in all respect it was a waqf.
Even otherwise the expressions waqf and trust are always understood to be inter changeable and merely because a waqf was described as "trust", the same would not change the nature of the waqf. The Chief Administrator of Auqaf was bound under the law to carry out the intentions and the purposes mentioned in the Farman of Amir of Bahawalpur dated 4-4-1958 in strict sense and pay to the beneficiaries listed therein as was intended by the dedicator and appropriate the income of the property for those purposes. This was statutory obligation which the Chief Administrator of Auqaf was bound to do.
18. Learned counsel for the respondents and Mr. Muhammad Hassan Khan, Advocate, maintained that the writ petition suffers from laches having been filed after inordinate delay after the passing of the impugned orders, the performance of other acts or omissions.
19. The question of laches is relatable only to the exercise of discretion vested in the Court under Article 199 to grant or not to grant the relief in the given circumstances and is not a matter of jurisdiction. In the facts and circumstances of this case exercise of discretion in favour of dismissal of writ petition would amount to perpetuate illegality and use of property vested in Almighty God for the purposes other than for which the same was dedicated by late Amir of Bahawalpur to acquire nearness of Almighty God. Since as has been held the same had been saved from the purview of M.L.R. 115 by virtue of its own provision as contained in section 2(7), therefore, we are not pursuaded to exercise discretion in favour of dismissal of the writ petition.
20. Mr. Ahmad Hassan Khan, Advocate, learned counsel when faced with this situation attempted to argue that the petitioners, should have filed petition before the District Judge for challenging the impugned acts under the West Pakistan Waqf Properties Ordinance, 1961.
21. The argument has no force. The Chief Administrator of Auqaf did not at any stage question the status of property as waqf property. The petitioners also did not question the status of property as waqf property. It was mainly the orders passed by the Deputy Land Commissioner and others under the Land Reforms Laws which had the effect of taking away the bigger portion of the land which have been challenged in the writ petition and if those orders are set aside the possession and management of land would revert back to the Chief Administrator of Auqaf.
22. For the foregoing reasons this writ petition is accepted. The orders, dated 13-3-1973 and 31-5- 1973 passed by the Deputy Land Commissioner, order, dated 31-3-1973 passed by the Commissioner in appeal alongwith the order in review and Notification No, LAC/DC/BWP/755, dated 30-12-1984 issued under section 4 of the Acquisition of Lands Act, Trust Deed, dated 30-4-1966 so long as it is inconsistent with the original Farman, dated 4-4-1958 issued by the late Amir of Bahawalpur and exclusion of names of the petitioners from the same as beneficaries are hereby declared to be without lawful authority and of no legal effect and quashed. In the result the possession, management and control of the entire land shall revert back to the Chief Administrator of Auqaf as before who is directed to perform his functions strictly according to the terms and conditions of Farman, dated 4-4-1958 in its letter and spirit and look after the property properly and save the same from being wasted and is directed not to pay usufruct of the same to any person or institution other than mentioned in the said Farman. The beneficiaries mentioned in that Farman shall be paid all the arrears of their dues uptill today and shall continue to be paid to future. There will be no order as to costs.