' BASHARAT AHMAD SHAIKH, J.--Appellants filed a writ petition in the High Court challenging an order issued by the 'Chief Administrator Auqaf under the directions of the Prime Minister of Azad Jammu and Kashmir. The writ petition has been dismissed. Hence this appeal by leave of the Court.
2. The order passed by the Chief Administrator, translated in English, is as follows:-- "Under the directions of the Prime Minister of Azad Government of the State of Jammu and Kashmir, the Chief Administrator of Auqaf has accorded sanction for restoration, under rules, of house, shop
(land) etc. Adjacent to Derbar Khari Sharif to Mian Muhammad Zaman and Mian Muhammad Sultan etc. Residents of Chaichian Mirpur as prayed by them. Sanction has also been accorded to the posting of Administrator II at Mirpur to settle the ancillary matters."
' This order was issued under the signature of the Administrative Officer of Auqaf Department on 8th November, 1993.
3. The writ petition was filed on 5th of January, 1994 by Muhammad Yusuf Sani, Ch.Khadam Hussain, Muhammad Hanif and Muhammad Jamil. In respect of their locus standi to file the writ petition it was stated by them that they were locals and had interest in this property. It was also stated that by impugned act of the respondent public-at-large will suffer. At another place it was averred that the impugned order was inoperative and of no legal effect against the rights of the general public and the petitioners.
4. The averments in the writ petition may be summarised thus. The Shrines of Mian Muhammad Bakhsh and Peeray Shah Ghazi are situated in village Kas-Kalyal, Tehsil Mirpur, and the offerings and income of these shrines is approximately one crore and three lacs per year. During Urs a large number of people from Pakistan and Azad Kashmir pay visit to these shrines. These shrines were taken over on 21st of February, 1961 by Chief Administrator Auqaf through a notification, copy of which forms Annexure 'A'. Land measuring 18 Kanals and 7 Marlas which is bounded by a compound wall is under the ownership of the Shrine of Peeray Shah Ghazi. This land has been restored to respondents Mian Muhammad Zaman and Mian Muhammad Sultan by the order forming Annexure 'B' issued on 8th of November, 1993 (reproduced above). Copy of Misl-e-Haqiat of year 1991-92 was attached as Annexure 'C'. Its ownership column shows that land under seven survey numbers mentioned therein is in the ownership of "Auqaf Department of Azad Jammu and Kashmir Derbar Peeray Shah Ghazi Khari Sharir. In pursuance of the aforesaid order respondents Mian Muhammad Zaman and Mian Muhammad Sultan started construction over the land belonging to the shrine. Different grounds were raised in the writ petition to attack the impugned order. Those will be taken note of at the appropriate place.
5. The High Court dismissed the writ petition. First reason recorded by the High Court is that the impugned order has not been acted upon and no property has been restored in compliance thereof. It was, therefore, concluded that the writ petition was premature. The High Court noted that a remedy was provided under section 7 of the Azad Jammu and Kashmir Waqf Properties Act, but it was observed that in cases of violation of law the High Court was empowered to examine the propriety and legality of an order. We are unable to subscribe to the view that the writ petition was premature for the reason that the impugned order had not been acted upon and that no property had been restored in consequence of the order. In our view the writ petition was not premature in any sense because it had been filed to challenge an order which had become fully operative and its efficacy was not dependent on its implementation. If the order was illegal it would have been futile for the petitioners to wait for its implementation. In fact its implementation would have created practical difficulties and may have possibly resulted in multiplicity of the proceedings. The view of the High Court does not reflect any principle of law. In fact if the writ petitioners had waited for its implementation it may have given rise to an argument that the petition was hit by laches.
6. The High Court then examined the contention that the order was without lawful authority and repelled it in the following words:-- "9. Section 3 of the Act empowers the Government to appoint Administrator Waqfs for Azad Jammu and Kashmir. Subsection (4) provides that the Administrator shall be subject to general control of Government. Section 12 further postulates that the Government may permit an Administrator to sell or otherwise dispose of any Waqf property and invest the proceeds in accordance with its directions. Section 12 empowers the Government to delegate its authority by permitting the Administrator to dispose of Waqf property and to invest the proceeds in accordance with the direction of the Government. That leads to the conclusion that Government is the final authority in the matter and the Administrator is appointed to act in accordance with direction of the Government. Section 12 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provides that the Government shall consist of the Prime Minister and Ministers who shall act through the Prime Minister as Chief Executive of the Government. The Prime Minister has been empowered to act directly or through the Ministers. That brings to the conclusion that the Executive authority of the Government is to be exercised by the Prime Minister directly or through Ministers. Therefore, it was wrong to suggest that the impugned order was passed without lawful authority."
7. In the portion of the judgment reproduced above, the High Court has relied on sections 3 end 12 to draw the conclusion that the Government is the final authority in the matter. The relevant part of section 3 is subsection (4) which reads thus:-- "The Administrator shall be subject to the general control of Government."
' Section 12 reads as follows:-- "Government may permit the Administrator to sell or otherwise dispose of any Waqf property and invest the proceeds in accordance with its direction."
' The burden of the reasoning as spelled out by the above extracted portion of the judgment of the High Court is that the Government is the final authority in the matter and the Administrator is appointed to act in accordance with the directions of the Government. Our reading of the Waqf Properties Act does not lead to that conclusion. The purpose of the Act, as incorporated in the preamble, was to consolidate and to amend the law relating to management of Waqf properties.
The main section without which the whole statute would be rendered nugatory and seems to incorporate the purpose of the legislation is section 6, which reads as follows:-- "Notwithstanding anything contained in section 22 of the Religious Endowments Act, 1983, the Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqf property."
By section 6 the power to assume control of a Waqf property is vested in the Chief Administrator and the Government does not figure anywhere when the Chief Administrator decides whether or not to assume control and maintenance of a Waqf property.
8. The term "Waqf property" has been defined in the Act to mean a property permanently dedicated by a Muslim for any purpose recognised by Islam as religious, pious or charitable. It is further explained that income from boxes placed at a shrine and offerings etc. Shall be deemed to be Waqf property. It follows that when the Chief Administrator takes over the administration etc. Of a Waqf property he becomes entitled to receive income from the boxes placed at the shrine and other offerings etc.
9. It is further clarified in section 13 that: "Subject to the provisions of this Act, a Waqf property shall be used - for the purpose for which it was dedicated or has been used or for any purpose recognized by Islam as religious, pious or charitable as the Administrator may deem fit."
This provision lays down that although income from a Waqf property has to be used for recognised purposes but the manner of such use has to be determined by the Chief Administrator. Under section 11 the power to draw a scheme for administration of the Waqf property is vested in the Chief Administrator. Under subsection (2) of section 14 all moneys received by the Chief Administrator form part of the Waqf fund which the Chief Administrator is empowered to operate subject to general supervision of Government. These wide powers are vested in the Chief Administrator of Auqaf and not in the Government although under section 3 the Government is appointing authority of the Chief Administrator. It has to be kept in view that all these powers have been given by the legislature and have not been delegated by the Government. The powers which are vested in the Chief Administrator are only exercisable by him and the mere fact that his appointing authority is the Government will not give power to the Government to interfere in the powers vested in him. It is true that the Government has also been given certain power's under the Act. These powers are therefore referable to the Act itself. The main provision is subsection (4) of section 3 which provides that the Chief Administrator shall be subject to the general control of the Government.
10. Mr. Muhammad Yunus Arvi has rightly submitted that the word control does not mean that the power exercisable by Administrator are also exercisable by the Government or that the Government can substitute its own order in supersession of the discretion of the Chief Administrator. According to the dictionary meaning the word "control" means taking action, the power of directing, command, the power of restraining. How much control or direction can be legally exercised by the Government has to be deduced in light of each provision and no hard and fast rule can be applied.
11. The present dispute is about restoration of Waqf property to which section 12 is applicable.
Section 12 lays down that the Government may permit the Chief Administrator to sell or otherwise dispose of any Waqf property and invest the proceeds in accordance with its directions. This provision lays down two things. Firstly, that the Chief Administrator cannot sell or otherwise dispose of any Waqf property without permission of the Government and, secondly, that he cannot invest the proceeds otherwise than in accordance with the directions of the Government. The word "permit" is not synonymous with "direction" or "order". Permission means to allow or to give an opportunity and presupposes that there should be a request or proposal for that purpose. If a person is granted permission to do a certain thing he is not bound to perform the act for which permission is granted. Instances of permission may be found in different kinds of permits, for instance, and import permit, a permit to buy a controlled item, or to visit a place where right of admission is reserved. A passport is also a document which gives permission to a person to move out of the country. In all such matters there is no compulsion that once a person has taken a permission he must perform the act for which he made a request. Under section 12 clearly the Government cannot force the Chief Administrator to sell or dispose of a.Waqf property. Om view is that such a decision basically lies with the Chief Administrator. If he is of the view that any such property may be sold or disposed of he will move the Government seeking its permission. It is the prerogative of the Government to grant permission or not to grant it. If permission is not granted the Chief Administrator will be helpless in the matter and he cannot sell or dispose of such property.
12. It may be pointed out that the Chief Administrator of Auqaf and other functionaries of the Auqaf Department who were respondents in the writ petition in their written statement did not own the legality of the directions given by the Prime Minister of Azad Jammu and Kashmir and boldly stated that the impugned order has no status in the eye of law. They also accepted the position taken by the writ petitioners that the order of the Prime Minister was not the order of the Government.
13. The Chief Administrator did not move the Government that he wanted to dispose of the Waqf property control of which is vested in him. In fact the Chief Administrator in his written statement and through his learned counsel, Raja Lehrasap Khan, in this Court, firmly opposed the direction of the Prime Minister. Therefore, the conclusion drawn by the High Court in light of section 12 is not sustainable. Since the Chief Administrator did not seek the permission of the Government, in our view, the impugned order is not covered by section 12 and is thus invalid.
14. The High Court in para. 9 of the judgment reproduced above held that the Prime Minister is the Government and could issue the direction under dispute. This view has been vehemently contested by Mr. Muhammad Yunus Arvi, who relied on a judgment of this Court in Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government PLD 1994 SC (AJ&K) 13 in which the learned Chief Justice observed that the Prime Minister alone is not the Government. In light of the view we have taken about the validity of the impugned order this question does not fall for determination.
Whether the order of Prime Minister was order of the Government or not it makes little difference in the case because the Government could not force the Chief Administrator to restore any Waqf property.
15. During the proceedings it transpires that shrine of Peeray Shah Ghazi has not been taken over under section 6 of the Waqf Properties Act. Both the parties are agreed that the only relevant notification is the one which was issued on 21st of February, 1961. Its reading shows that Administrator Waqf Properties (as then was called) in exercise of powers under section 6 of the Azad Jammu and Kashmir Waqf Properties Act took over and assumed the administration, control, management and maintenance of the shrine of Mian Muhammad Sahib. There is no mention of the shrine of Peeray Shah Ghazi. The Misl-e-Haqiat appended with the writ petition shows that the land mentioned therein is attached with the Darbar Peeray Shah Gazi which was not taken over by the Administrator. In these circumstances the question of its restoration or disposal does not arise.
16. It was contended by learned Additional Advocate-General, Mr. Muhammad Akram Mughal, and Mr. Muhammad Azam Khan that the writ petitioners were not aggrieved persons. In our opinion this objection has no force. Waqf property is for the benefit of the whole community professing Muslim faith, of which the appellants are admittedly part. Therefore, they have the right to see that Waqf property is not mismanaged or wasted by public functionaries who are governed by the law. The reliance of Mr. Muhammad Yunus Arvi on Mian Fazal Din v. Lahore Improvement Trust (PLD 1969 SC 223) is well-placed.
17. Before parting with the case we may observe that Mr. Muhammad Yunus Arvi vehemently contended that a Waqf property belongs to Allah and nobody can transfer it. We do not think that it is necessary to go into this question because of the conclusion to which we have already reached.
Consequently the appeal is accepted, judgment of the High Court is set aside and the writ petition is accepted. Consequently Order No,6360-63/93, dated 8th November 1993 is held to have been passed without lawful authority and is declared to be of no legal effect. However, we would leave the parties to bear their respective costs.