' This appeal has been filed against the order dated 11th February 1975 passed by the Land Commissioner, Sargodha Division whereby he directed The Deputy Land Commissioner, Sargodha to pass a fresh determination order in respect of 'Idara Amoor-e-Khair Mazhabia' situated in village Kotla Rehman, Tehsil Shahpur and allowed him to review the earlier order of determination dated 1st December 1972 passed by his predecessor Mr. Shamim Ahmad Khan.
2. Briefly the facts of the case, as alleged by the learned counsel for the petitioners, are that Makhdum Syed Khizar Hayat Shah deceased was the exclusive owner of land measuring 1074 kanals 15 marlas situate in village Qutab Awan, Tehsil and District Jhang. On 17th July 1958, he created a waqf in respect of this land, vide a registered deed executed on 9th December 1958.
Mutation No, 384 was sanctioned to evidence this fact. The object of the waqf, as given in the deed of registration, was to impart religious education to Firqa Jaffaria of the Shia Community, or in the words of the deed itself {{URDU TEXT}} . The first Mutawallis created under the deed were the deceased Makhdum Syed Khizar Hayat Shah, his brother Major Syed Mubarik All Shah and Col. Abid Hussain Shah, their cousin. The waqf was named 'Idara Amoor-e-Deeni'. It was taken over by the Chief Administrator, Auqaf Department on 16th May 1972. Since the P. I. Us. Of the land comprised in this waqf amounted to 7383 and were less than the ceiling laid down under M. L. R. 115, no declaration was filed by the Auqaf Department or the original Mutawallis in respect of this property.
3. The second waqf property i,e, "Idara Amoor-e-Khair Mazhabia" situate in village Kotla Rehman, Tehsil Shahpur of Sargodha District, comprising an area of 6710 kanals (equivalent to 38582 P,I.Us.) was in the joint ownership of Makhdum Syed Khizar Hayat Shah deceased, Major Syed Mubarik Ali Shah and their cousin late Col. Abid Hussain Shah. This wagf had also been created by a registered deed dated 27th April 1955, that is about three years and a half before the creation of the first wagf, and was called the "Idara Amoor-e-Khair Mazhabia". According to the deed of registration it had three objects, namely :-
(a) To impart religious education and to propagate Shia religion of the Jaffari Sect ;
(b) To run a `Mehmankhana' ; (c)To utilize a portion of income of the waqf property for holding 'Urs' of Hazrat Syed Imam Ludhan Shah.
' The amount of income to be spent on each of the above-mentioned objects was also indicated in the registered deed itself. This wagf was also taken over by the Auqaf Department on 3rd May 1972.
A declaration form in respect of this property was filed by that Department. The determination of the declaration was made on 1st December 1972 by the Deputy Land Commissioner, Sargodha.
4. On 31st August 1974 Deputy Land Commissioner, Jhang moved the Land Commissioner seeking permission to review the aforesaid order dated 1st December 1972 of his predecessor Mr. Sharnim Ahmad Khan. The permission was granted by the impugned order dated 11th February 1975 passed by the Land Commissioner, Sargodha allowing the Deputy Land Commissioner to treat the property involved in both the wag fs as belonging to one person for determination of the area to be resumed by the Land Commission as being in excess of the prescribed ceiling. Aggrieved by this order the appellants have filed this appeal.
5. In the grounds of appeal it has been stated that the waqf property "Idara Amoor-e-Khair Mazhabia" situated at Qutab Awan fehsil and District Jhang) was exclusively owned by Makhdum Syed Khizar Hayat Shah whereas the wagf property situate at Kotla Rehman (Tehsil Shahpur, District Sargodha) was jointly owned by three persons namely Makhdoom Syed Khizar Hayat Shah, Major Syed Mubarik Ali Shah and Col. Abid Hussain; that the two properties being differently owned, could not be treated as belonging to one person; that both the waqfs were created under different and separate waqf deeds; and that the properties of the two waqfs could not be amalgamated for the purposes of determination of holding under M. L. R.
115. It is added that the main interest of the appellants was to ensure that the income of the wag f properties situated at Kotla Rehman and Qutab Awan was used for the purpose for which the waqfs were created and that they (the appellants) did not stand to derive any personal gain as a result of acceptance of their prayer contained in the appeal.
6. I have heard the learned counsel for the appellants. The legal Adviser of Auto! Department and Legal Adviser of the Punjab Laud Commission have also been heard.
1. The following issues fall for determination in this case.
(1) Whether the order appealed against is in fact appealable.
(2) Whether both the waqfs can be amalgamated and treated as one juridical person within the meaning of M. L. R. 115 ?
(3) Whether the Augaf Department managing the properties of the two waqfs can be treated under the law as a juristic person for the purpose of determination of the holdings under M. L. R. 115 ?
(4) Whether the appellants have any interest whatsoever in the waqf properties when the Auqaf Department has taken over their charge with effect from 3rd May 1972 in the case of waqj at Kotla Rehman and 16th May 1972 in the case of waqf at Qutab Awan ?
(5) Whether the appellants have any locus standi to file an appeal or revision when the property vests in the Auqaf Department for all intents and purposes ?
8. On issue No, (1) the Legal Adviser, Punjab Land Commission argued that the impugned order was not appealable under rule 11 of the Land Reforms Rules, 1972, for the reason that it contained only an advice amounting to a permission to review the earlier order dated 1st December 1972 passed by the Deputy Land Commissioner, Sargodha. Only after the Deputy Land Commissioner had reviewed the earlier order and passed a fresh order in review could the right of appeal or revision accrue to appellants in case they were aggrieved by the order. He further added that the permission given by the Land Commissioner did not prevent any necessary parties, including the appellants, from presenting their case before the Deputy Land Commissioner during review proceedings. As such no appeal was competent at this stage.
9. The learned counsel for the appellants, on the other hand, submitted that the impugned order of the Land Commissioner was not merely an interlocutory order. Certain rights had been adjudicated upon in that order and the lines on which the fresh order was to be passed had also been indicated. The impugned order actually deprived the Deputy Land Commissioner of any judicial discretion in determining the issues in dispute in this case.
10. I think that on this issue the reasoning of the learned counsel for the appellants is unassailable.
The impugned order of the Land Commissioner dated 11th February 1975 not only accorded a permission to the Deputy Land Commissioner to review his predecessor's order dated 1st December 1972 but it also amounted to a direction as regards the manner in which the review was to be carried out. This direction was, doubtless, based on the recommendation made by the Deputy Land Commissioner A himself but even so, the order passed by the Land Commissioner would amount to the confirmation of a judgment already made by the Deputy Land Commissioner with regard to the merits of the case. As such the result of the review would be a foregone conclusion and the issues raised in this appeal would not be determined on merits. Secondly, since the impugned order was passed by the Land Commissioner, the power of review has been withdrawn by virtue of Notification No, P-I-7/75/1275-LC(II), dated 29th March 1975 issued by the Punjab Land Commission. The case can now be taken up only in appeal or revision. For these reasons I consider that this appeal should be entertained and heard on merits.
11. On issue No, (2) the learned counsel for the appellants argued that the two waqfs were created at different times for different objects and by distinct owners, and as such they could not be treated as 'one person' for purposes of M. L. R.
115. He said that the term 'person' related to a particular educational, charitable or religious institution as such and not to the management of that institution. The 'person' in such a case should be identified by its existence and not by its management. In support of this contention the learned counsel referred to the ruling quoted in AIR 1924 Pat. 284, which gave the essential ingredients of a waqf created under the Shia Law, which is applicable in the present case. These ingredients are briefly stated as under :-
(1) The waqf must be perpetual.
(ii) It must not be contingent.
(iii) The property should cease to be the property of the donor and the donor should rightly be divested of any right over it.
' According to the learned counsel, in the above-mentioned ruling the Management of the waqf property and the waqf itself had been distinguished. The learned counsel added that even if there was a single owner of the two properties which had been created as separate waqfs and the owner himself became the mutawalli of both the properties, they would still retain their separate entities because it was the character of possession that was material and not the person of the owner of the mutawalli. The mutawalli was in fact the product of the waqf. Furthermore, the fact that there were two separate waqf deeds registered with respect to the two waqfs in dispute showed that they were and had been treated as separate and distinct properties for purposes of registration.
12. Legal Adviser, Punjab Land Commission, on the other hand, argued that the waqf at Kotla Rehman (Tehsil Shahpur) had been in existence since 27th April 19)5 and that the late Makhdoom Syed Khizar Hayat added to this waqf, on 17th July 1958, an area of 1074 kanals and 15 marlas situated in village Qutab Awan (Tehsil and District Jhang). According to the Legal Adviser, this was clearly an addition to the previous waqf and was not a separate waqf in its own right. Otherwise there was no need for the late Makhdoom Khizar Hayat to join his cousin Col. Abid Hussain also as a mutawalli for the second waqf. As regards the objects of the two waqfs, the Legal Adviser stated that they were essentially the same and there was only a minor variation in the drafting of registered deeds which should not be given any weight while determining the nature and meaning of the waqf deeds. He further stated that the `Urs' of Sain Ludhan Shah was held at the place of the original waqf, i,e,, at Kotla Rehman in Shahpur Tehsil.
13. In order to rebut the last argument of the Legal Adviser to the Commission, the learned counsel for the appellants stated that the `Urs' of Hazrat Syed Imam Ludhan Shah was held at village Shah Jewana in Jhang Tehsil and not at Kotla Rehman in Shahpur Tehsil. The other arguments advanced by the Legal Adviser, are also not very convincing. It has already been observed that the objects of the waqfs, although in certain was similar, were not identical; that the creators of the two waqfs, although closely related, were not the same persons; that, in any case, it was the character of the waqf that was material and not its management or ownership; and that there were two separate waqf deeds, one for each waqf. These factors, taken singly and collectively, show quite clearly that the two waqf properties situated respectively at village Kotla Rehman in Sargodha District and at village Qutab Awan in Jhang District cannot be treated as one `person' within the meaning of paragraph 3 of M. L. R.
115. I, therefore, consider that the reference made by the Deputy Land Commissioner to the Commissioner on this issue was based on an incorrect appreciation of Law and the facts of the case and the orders thereon of the Land Commissioner were also based on a misunderstanding.
14. On issues Nos. 3 and 4, which are inter-related, the learned counsel for the appellants has stated that appellants' interest was to ensure that the income of the waqf property situated at Qutab Awan is properly utilized for the purposes for which the waqfs were created. The appellants did not want to claim any benefits from the waqf properties as such because the Management of the waqfs already stands transferred to the Auqaf Department. However, as creators of the waqfs in question, the appellants had a natural and proper interest in ensuring that the properties were used for the purpose for which they had been created.
15. Legal Adviser to Punjab Land Commission, however, argued that under section 13 of the Waqf Properties Ordinance, 1961, the original creator of the waqf was left with no supervisory authority over the waqf after it had been taken over by the Auqaf Department. The aforesaid section reads as follows "Subject to the provisions of this Ordinance the 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 Chief Administrator may deem fit."
16. I am afraid here again the arguments of the learned Legal Adviser are not convincing. It is common ground that the appellants are the original creators of the two waqfs in dispute. As such I am of the view that they are entitled to retain an active interest in seeing that the waqf properties are utilized for the objects for which they were dedicated, without actually interfering with the Management of the properties as such. Even after the transfer of the properties from the original mutawallis to the Auqaf Department, the interest of the original creators of the waqfs would not be altogether extinguished. It follows from this that if any part of the land was to be resumed, the tenanted area would become liable to allotment to the tenants and be not available for the origin 11 purposes of the waqfs. Consequently, I hold that the appellants retain a legitimate interest in the waqf properties even after the transfer of their management to the Auqaf Department. As regards the Auqaf Department, their position as a necessary party has not been disputed.
17. On issue No, 5, I have already found that the appellants being the original creators of the two waqfs have a ligitimate interest in their proper Management in accordance with the purposes for which the waqfs were created. They are, therefore, interested parties and are fully entitled to file this appeal.
18. The result is that I held the two waqf properties situated at Mauza Qutab Awan (Tebsil and District Jhang) and at Mauza Kotla Rehman (Tehsil Shahpur of Sargodha District) and known respectively as "Idara-iUloom-i-Deen" and "ldara-i-Amoor-i-Khair Mazhabia" to be separate 'persons' for purposes of determination of their holdings under M. L. R.
115. The original order passed by the Deputy Land Commissioner dated 1st December 1972 was a correct order. No review or revision or that order is necessary. The order dated 11th February 1975 passed by the learned Land Commissioner is, therefore, set aside. The appeal is accepted.