MALIK MUHAMMAD QAYYUM, J.- The dispute in this petition pertains to land measuring 53 Kanals and 17 Marlas situate in Mauza Kotli Pir Abdul Rehman, Tehsil and District Lahore, which is located in one of the prime areas of the city. The value of this land can well be imagined from the fact that it is the case of the. Respondents themselves that it has assumed an urban character and has ceased to be agricultural in nature. This land is Waqf in character and is attached to Daras Mian Wadda Sahib. Its management and control was taken over alongwith other properties by the Chief Administrator Auqaf vide notification dated 9.8.1960 under Section 6 of the West Pakistan Waqf Properties Ordinance, 1979. The land, which at that time was agricultural in nature, has remained under cultivation of different persons. The petitioner,, who is an advocate by profession, claims to be a member of the. Family of the dedicator. His grievance is that this land has been illegally and dishonestly appropriated to themselves by the functionaries of the Auqaf to the detriment of the Waqf itself. It is stated that as an attempt to give legal cover to this fraudulent transaction, the land was divided into various plots, which were given on lease by the Chief Administrator of Auqaf to the employees of the Department including himself for a period of 99 years at the nominal rent of Rs.1/- per marla. Per month. This action of the respondent has been challenged by the petitioner by filing this petition under Article 199 of the Constitution of Islamic Republic of Pakistan. 1973.
2. In the report submitted by the Chief Administrator Auqaf, none of these facts has been denied.
The justification for dividing the land into various plots and leasing it out for 99 years to its own employees by the "Auqaf Department", as given in the said report, is as under: "in order to provide residential facilities to its employees, the Auqaf Department drew up a scheme for allotment of Auqaf land. It may also be added at this juncture that the agricultural land of this property lost its efficacy and the property with the passage of time, became urban. Urban property could only be used for residential purposes. In other words, the Auqaf Department could only grant lease of urban property for residential/commercial purposes. This could only be done through long lease and there was no other way out as no one was prepared to lake on lease the urban property for a minimum period of three years and investment could only be made if the property was leased out for a longer period. Another factor which influenced the Department in taking the present action was that the property in dispute could only be given for residential purposes and > v not tor commercial purposes as it was not commercial unit. Two -1' options were left with the Auqaf Department either to divide the plots' into small portions and give it to the public for residential purpose on .Long lease but no outsider would have invested the amount for construction purpose without the land having been fully developed. The Auqaf Department had no sources at its disposal to Invest huge amount on the development of this chunk of land measuring 50 Kanals.
Development means construction of roads, laying of sewerage and other such amenities of life such as sui gas, electricity and water supply. The other alternative for the Auqaf Department was to help its poor and needy employees by leasing out small plots of mostly 4 to 7 marlas and in some cases 10 marlas and more. This step was considered to be more beneficial as the Auqaf Department did not develop the plot and it was for the employees/lessees to themselves do it.
Keeping this policy in mind, the complete 50 kanals of land was divided into plots of various sizes and leased out in 86 small plots. The beneficiaries of these plots were mostly Naib Qsids, Ulema, khatibs and Clerks of the Auqaf Department. Some plots were also given to the officers. The strict policy of allotting the plots to those poor employees who had no plots/houses of their own was adhered to."
3. The petition has also been contested by respondent Nos. 3 to .38, who being the allottees, were impleaded as respondents on an application (C.M. No. 2275/92) made by them. In the written statements, these respondents have taken up the position that the Auqaf Department had prepared the scheme in order to accommodate its petty employees who were getting meagre salaries and as the property had lost its agricultural character, it was in the best interest of the Wakf that it be leased out for residential purposes.
4. In support of this petition, learned counsel for the petitioner has contended that the lease of the property for 99 years by the Auqaf Department to its own employees at a nominal price of Rs. 1/- per maria per month is not only unauthorised but also fraudulent and an abuse of the powers vesting in the Chief Administrator of Auqaf.
5. The main stay of the arguments of learned counsel for the respondents, on the other band, was the scheme in question was formulated for the benefit of poor and low-paid employees by the Auqaf Department.
6. Before examining the legal aspect of the matter, the contention raised by learned counsel for the respondents may be disposed of by observing that factual premises on which it proceeds is incorrect. It is common ground between the parties that the land in question was sub-divided into about 86 plots. A reference to the list of the allottees would show that the first name, which appears in the list, is that of Chief Administrator of Auqaf himself, who was granted lease of an area of 30 Marlas. I wonder as to how could the Chief Administrator Auqaf be the lessor as also the lessee himself. The next three plots are of 220 Marlas each while there are 10 plots of 12 Marlas, most rest of which have been transferred to Managers, Engineers, Superintendents and the SDOs. It cannot therefore be said that the scheme in question was formulated solely for the benefit of the low-paid employees. On the other hand, the conclusion, which follows from a perusal of the record inescapably is that there was a desire on the part of those in control of the affairs to enrich themselves at the expense of the Wakf.
7. Even if the argument of learned counsel for the respondents is accepted, yet under no law could be Chief Administrator Auqaf transfer the land on a perpetual lease of 99 years, which virtually amounts to sale. It is interesting to notice that at the time when the scheme in question was being formulated, the matter was put up to the Legal Adviser, who stated that though it would not be possible for the Chief Administrator to transfer the land by way of sale to the employees, yet legal obstacle can be overcome by leasing out the property to 99 years. Mala fide of the Department is too evident to need any further comment.
8. Undisputedly, the ownership of the Wakf properties vests in Allah Almighty. The position of the Chief Administrator, After he takes over the property, is no better than that of a Mutawalli or a Manager or a Superintendent. He is not vested with the ownership of the property which continues to remain with Allah Almighty. Under Section 7 of the West Pakistan Wakf Properties Ordinance, 1979, the Chief Administrator is authorised to take over and assume the Administration control, management and maintenance- of the Wakf properties. He is in the nature of an Ameem and has been granted certain rights to administer, control and maintain the property. There is no power vesting in him to deprive the Wakf of any of its assets.
9. The legal strength for the transfer in question is sought by learned counsel for the respondents to be drawn from the West Pakistan Wakf Properties (Administration) Rules, 1960, rule 7 of which provides that the lease of Wakf property shall be in writing and its period shall not exceed three years provided that the Chief Administrator may grant a lease for any longer period if in his opinion, such an action is necessary in the best interest of the Wakf property. The discretion vesting in the authorities in this rule to grant a lease like all discretionary powers has to be exercised in a judicious, proper, fair and just manner and not arbitrarily or capriciously. The minimum requirement in such cases would be to deal with the properly in a manner in which an ordinary prudent owner of the property would deal with it. In the present case the conclusion which is in escapable is that the Chief Administrator has acted not only against the interest of the Wakf but also for ulterior motives.
10. The power of the Chief Administrator to sanction lease. For more than three years is hedged by the condition than in his opinion}, such an action is necessary in the best interest of the Wakf property. The word "opinion" has received judicial interpretation in various cases, which need not be mentioned. However, consensus appears to be that the opinion must be formed objectively after taking into consideration all the facts and circumstances of the case and must be an honest opinion. The other condition mentioned in the rule is that the grant of lease for more than three years must be in the best interest of the Wakf property. Even the Legal Adviser of the Auqaf Department had to concede that the grant of lease of about 30 marlas to the Chief Administrator could hardly be in the best interest of Wakf property. As regards the other justification put forward namely that there was like hood of the land being encroached upon, it is wholly unfounded. It cannot be believed that the Chief Administrator, who is also Secretary to the Govt, of the Punjab, is powerless to defend the property against encroachment.
11. But even if it was considered desirable to lease out the property, the best interest of the Wakf property and not that of the employees of the Auqaf should have been kept in view. Learned counsel for the respondents are unable to explain as to how the transfer of the properly, which is virtually for a song could be considered in the best interest of the Wakf. It is painful to note that a high functionaries like the Chief Administrator of Auqaf have gone astray to such an extent that in their desire to grab the land for them, they did not even spare the property vesting in Allah Almighty.
12. As observed in Muhammad Sadiq and 15 others V. The Chief Administrator of Auqaf, West Pakistan. Lahore and another (PLD 1972 Lahore 780), according to the Muslim Jurists, Wakf property is like the property or an orphan and its management cannot be allowed. It needs also to be stated that the dedicator had dedicated the. Property to Allah Almighty and for the benefit of the Chief Administrator or employees of the Department. So far as the Muslim Law is concerned, it appears to be well-settled and all the Muslim Jurists are agreed that an appropriation of the property which virtually amounts to sale or transfer cannot be allowed. In Hedayat by Charles Hamilton at page 335, it is stated that "under an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, according to all lawyers; the transfer is unlawful, because of a saying of the Prophet, 'Bestow the Actual Land Itself in charity, in such a manner that it shall no longer be saleable or inheritable'.
An appropriation, therefore, is incapable of sale or transfer, upon becoming valid and absolute".
Reference may also be made to Digest of Mohammadan Law by Neil B.E. Baillie, 1957 Edition page 607, wherein it has been stated that "it is not lawful to let a Wakf except for the rent of similar property". It has, further been opined that where the Superintendent of Wakf lets the properly to a Wakf at an inadequate rent, the lease is unlawful.
13. Mr. Riaz Kiani, Adv. For respondent Nos. 1 and 2 has, however, submitted that the case of Muhammad Sadiq supra cannot be relied upon as it was disapproved by the Supreme Court while deciding CA. No. 52/73 on 5.11.1984. A perusal of that order would, however, show that the appeal was allowed only to the extent that the power of Chief Administrator to grant lease for more than two years was not dependent upon the permission of the Court which need not be obtained. The judgment of this Court in all other respects was upheld. Moreover, the case before the Supreme Court was not with respect to a lease for 99 years which virtually amounts to sale. Further more, even if the principles of Muslim Law regarding the power of Mutawalli to grant lease be not applicable to the Chief Administrator of Auqaf, yet these were consideration relevant for the exercise of discretion and the rules laid down by the Muslim Jurists could not be ignored by the Chief Administrator without any valid reason. In the present case, there was no justification in granting lease for a period of 99 years. Which has the effect of almost permanently depriving Wakf of the property owned by it. Similarly, rate of rent, which was fixed, I nominal and illusory. The procedure adopted for grant of lease is also clearly questionable so arc motives for which transaction was entered into.
14. In view of what has been slated above, this petition is allowed. The impugned action of the Chief Administrator Auqaf in granting lease to its employees is declared to be without lawful authority and of no legal effect. The Chief Administrator shall forthwith proceed to repossess the property whereafter it shall be dealt with strictly in accordance with law. He shall also pay a sum of Rs.10000/- as cost to the petition.