Darbar Hazrat Pir Lakhan (Khanqah Hazrat Pir Lakhan Sahib) also known as `Samadh' Bawa Lakhan was taken over by the Administrator --General of Auqaf for Pakistan under section 7 of the Auqaf (Federal Control) Act, 1976 vide notification dated 4-10-1977. In the Schedule to the notification the property is described as "Khanqah Hazrat Pir Lakhan Sahib alongwith a Chapar covering an area of 5 Kanals (Ghair Mumkin) in Abadi Dch in Revenue Estate of Ochara, Tehsil Daska, District Sialkot."
The notification was modified by another nqtification of 29-3-1978 and the Schedule was amended to read as "a Waqf Chapar covering an area of 3 Kanals 15 Marlas (excluding Samadh of Bawa Lakhan covering an area of 1 Kanal 5 Marlas) in Abadi Deh of revenue estate of Rachhara, Tehsil Daska, District Sialkot." This latter notification was withdrawn by the Administrator-General vide notification of 25-1-1979. ,
2. Lal Din, Muhammad Buta and Bashir Ahmad, all Gujjars by caste and residents of the village where the property is situate, were asked by Assistant Administrator Evacuee Trust Property, Sialkot vide his order dated 20-5-1979 to pay the rent of the premises since 1960 or to face ejectment instead. They preferred an appeal to the Administrator Evacuee Trust Property (Central Zone), Lahore, who after hearing the parties referred the matter to the Chairman, Evacuee Trust Property Board, Lahore for adjudication under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. The Chairman concluded "-----the property in question which is Samadh of Bawa Lakhan is, therefore, declared as an Evacuee Trust Property which may be notified as such.
The property in question has not been transferred to any person and respondents are in possession of the property as Matwalis .... -------". The Assistant Administrator, Evacuee Trust Property, Sialkot was directed to take over the management and control of the property and deal with it according to the policy of the Board. Against this order appeal was taken to Additional Secretary to the Government of Pakistan in the Ministry of Religious Affairs and Minorities Affairs, Islamabad.-He concluded "-----I, therefore, hold that the property in dispute is a Samadh, a Hindu Trust and not a Muslim Waqf. The respondents were its old occupants and the Evacuee Trust Property Board should deal with them in accordance with the relevant law".
3. The orders of the Chairman and the Additional Secretary have been called in question in the present writ petition by the Chief Administrator of Auqaf, Punjab, Lahore.
4. The writ petition was admitted to regular hearing on the contention:-- "Inter alia contends that the property being Waqf and having been taken over under section 7 of the Auqaf (Federal Control) Act, 1976, if the Evacuee Trust Property Board constituted under Evacuee Trust Properties (Management and Disposal) Act, 1975, had any claim thereto, the same could only have been established in the Court of the District Judge under section II of the former Act and the impugned orders passed by the Chairman and Additional Secretary under the latter Act, are without jurisdiction."
There is no denying the fact that vide Notification of 4th October, 1977 the Administrator-General of Auqaf for Pakistan under section 7 of the Auqaf (Federal Control) Act, 1976 had taken over the property. It seems from the pldadings of the parties in the present writ petition and the judgment of Civil Judge, Sialkot dated 5-1-1985 in a suit filed by Lal Din against the Administrator of Auqaf Department and that in appeal by the District Judge dated 5-12-1987, that Lal Din etc. were the occupants of the property and asserted in the Civil Court that it was not Waqf Property. So, -on the one hand Lal Din, Muhammad Boota and Bashir Ahmad, respondents in the writ petition are locked in civil litigation with the Chief Administrator of Auqaf, Punjab and in the meanwhile Evacuee Trust Property Board constituted under the Evacuee Trust Property (Management and Disposal) Act, 1975 have also joined the race by declaring the property as Evacuee Waqf and called upon the occupants to be treated in accordance with the Act of 1975.
5. So far as the present writ petition is concerned, it is being contested by the two Government Departments i.e. Chief Administrator of Auqaf, Punjab, Lahore and Evacuee Trust Property Board through its Chairman. The former is now functioning under the Punjab Waqf Properties Ordinance, 1979 and the latter, as already observed above, is a creation of the Act of 1975. The main contention raised by the learned counsel for the respondent Board is that the Act of 1975 being a Central Statute would override the provisions of Punjab Waqf Properties Ordinance, 1979. The precise argument was that if any order of the Board or the authorities constituted under the Act of 1975 was to be challenged, the same could be challenged under the provisions thereof and so the property could not be treated as Waqf Property under a Provincial Statute by the writ petitioner. The contention of the learned counsel for the Board must be rejected as the stand of the Board and the decisions of the Chairman and the Additional Secretary proceed on fallacious grounds and are coram non judice.
6.Auqaf was a Central subject under the pristine Constitution of the Islamic Republic of Pakistan, 1973 and for this very reason Auqaf (Federal Control) Act, 1976 was brought on the Statute book by the Parliament. Under the Fourth Amendment the Constitution (Fourth Amendment) Act, 1975 with effect from 21-11-1975 Auqaf was included in the concurrent legislative list against item No.43-A. As a result of this amendment, Auqaf (Federal Control) (Repeal) Ordinance, 1979 repealed the Auqaf (Federal Control) Act, 1976. Vide section 2 of the Ordinance of 1979 the administration, control, management and maintenance of all Waqf Properties situate in a Province which vested in the Administrator-General of Auqaf for Pakistan was transferred to the Government of that Province or such authority as was to be specified by or 'under the law of that Province. It was in consequence of this Constitutional change and repeal of the Auqaf Act of 1976 that the Provinces initiated legislation in the field of `Auqaf and the Punjab Waqf Property Ordinance, 1979 was the result, so far as the Province of Punjab was concerned. The property in dispute was taken over as Waqf Property by the Administrator-General for Pakistan under the Act of 1976 (a Central Statute) and upon the repeal of the Act and the Constitutional Amendment, the same came to vest in the Province of Punjab or for that matter the Chief Administrator of Auqaf, Punjab under the Punjab Waqf Propertiesordinance, 1979. Thus, there is no question of conflict of a Central Statute i.e. Evacuee Trust Properties (Management & Disposal) Act, 1975 and a Provincial Law i.e. The Punjab Waqf Properties Ordinance, 1979. The property was declared Evacuee Trust Property under the Act of 1976 and now vests under the repealing Act referred to above in the Province of Punjab and the Chief Administrator of Auqaf appointed under the Punjab Waqf Properties Ordinance, 1979.
7. The property having been declared as Waqf Property under the Act of 1976, challenge to the same possibly could have been thrown under the provisions of the said Act and no independent civil suit was competent by the occupants. However, that is a separate matter and is to be looked into in the civil litigation between the Chief Administrator of Auqaf, the writ petitioner on the one hand and Lal Din, Muhammad Boota and Bashir Ahmad, respondents, the occupants on the other.
8. The property having been declared and taken over as Waqf Property under section 7 of the Auqaf (Federal Control) Act, 1976, only a petition against the notification in this regard could have been moved to the District Court and to no other Authority. Decision of the District Court or in appeal by the High Court was to be final in the matter. During the subsistence of the Notification under the Auqaf (Federal Control) Act, 1976, no action could have been contemplated or taken in hand under the Evacuee Trust Properties (Management and Disposal) Act, 1975. Evacuee Trust Property under this Act of 1975 has been defined in clause (d) of section 2(11 as the Evacuee Trust Property attached to Charitable, Religious or Educational Trust or Institutions or any other properties which form part of the Trust Pool constituted under the Act. Vide section 4 the Board constituted under this Act is to have the general supervision and control of all Evacuee Trust Properties. All Evacuee Trust Properties are to vest in the Federal Government under section 6 ibid. Trust Pool is to be constituted under section 7. Under section 8 ibid if a question arises whether an Evacuee Property is attached to a Charitable, Religious or Educational Trust or Institution or not, is to be decided by the Chairman. The Chairman thus has only the jurisdiction whether an evacuee property is attached to a charitable, religious or educational Trust or Institution but he has no jurisdiction to declare a property as evacuee property. Though the erstwhile evacuee laws have since been repealed but we can have a look as to how the property was to be treated/declared as Evacuee. `Evacuee' and `Evacuee Property' have been defined in section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957. Section 3 clearly lays down that no person or property not treated as Evacuee or as Evacuee Property immediately before the first day of January, 1957 shall be treated as Evacuee or Evacuee property. The property in dispute is admittedly situate in rural area (a village). The Displaced Persons (Land Settlement) Act, 1958 vested powers in the Provincial Government under section 4 ibid to acquire any land within the Province to be dealt with under the Act by notification and on the publication of the Notification, the right, title and interest of any evacuee or person claiming through him was to stand extinguished.
There is no claim on behalf of the Evacuee Trust Property Board that the property was ever treated as Evacuee or Evacuee Trust before 1-1-1957 or any notification was issued by the Provincial Government taking over the same under the Act of 1958. Thus, looked at from whatever angle the Chairman or any Authority constituted under the Evacuee Trust Properties (Management & Disposal) Act, 1975 had no jurisdiction to deal with the disputed property. All the actions initiated, proceedings taken and orders passed by the Authorities under the Act of 1975 including the impugned orders of the Chairman and the Additional Secretary are, therefore, declared to be without lawful authority, without jurisdiction, void and of no legal consequence. Accordingly the writ as prayed for is granted.