' NASIR ASLAM ZAHID, J.---This judgment will govern Civil Appeals No,23, 24 and 25 of 1995, as the appellants, who were parties in Writ Petition No,7990 of 1993, have challenged the judgment of the Lahore High Court passed in the said writ petition. Writ Petition No,7990 of 1993 was filed by the Chief Administrator of Auqaf Punjab calling into question the order dated 24-9-1987 passed by the Chief Land Commissioner, Punjab and order dated 14-7-1993 passed by the Federal Land Commission. In the writ petition, apart from Federal Land Commission, Chief Land Commissioner, Punjab and Deputy Land Commissioner, Jhang, where the disputed lands are located, and tenants Ghulam Hussain and others, were impleaded as respondents. The writ petition was allowed by the impugned judgment dated 12-10-1993 passed by the Lahore High Court declaring the orders dated 24-9-1987 and 14-7-1993 of the Chief Land Commissioner, Punjab and Federal Land Commission to have been passed without lawful authority and of no legal effect. The impugned judgment had been challenged before this Court through petitions for leave to appeal. One petition was filed by the Chief Land Commissioner, Punjab, the other by the tenants Ghulam Hussain and others and the third one by Federal Land Commission. By order dated 24-1-1995, this Court granted leave in all the three petitions. The leave granting order is reproduced here:-- "Leave is granted in the abovementioned 3 petitions to consider whether in view of the law laid down by this Court in the case of Chairman, Federal Land Commission, Islamabad and another v.
Akhtar Abbas (PLD 1989 SC 550) and the observation of this Court in the case of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others (PLD 1990 SC 99) to the effect that the decision in this case shall not in any manner affect the operation of the self-executory provision of the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977 and all provisions ancillary thereto, the excess land in possession of respondents already stood vested in the Government in terms of section 9 of Land Reforms Act, 1977 notwithstanding the fact that the respondents had not filed any declaration and the exact excess area in possession of the respondents was not determined, as required under the Act and the excess land became available for disposal in accordance with the provisions of the said Act?"
' In Civil Appeal No,23 of 1995, appellants are the Chief Land Commissioner, Punjab and the Deputy Land Commissioner; Jhang; in Civil Appeal No,24 of 1995, tenants Ghulam Hussain and others are the appellants and, in Civil Appeal No,25 of 1995, appellants are Federal Land Commission, Chief Land Commissioner and Deputy Land Commissioner, Jhang. We have heard the arguments of Mr. Hafiz S.A. Rehman, learned Advocate Supreme Court for Federal Land Commission, Mr. Muhammad Sayeed Akhtar, learned Advocate Supreme Court for all the tenants, namely, Ghulam Hussain and others, and Ch. Khurshid Ahmad, learned Advocate Supreme Court, who has appeared for Chief Administrator of Auqaf, Punjab. Sh. Altaf Elahi, Additional Advocate-General, Punjab adopted the arguments advanced by Mr. Hafiz S.A. Rehman and Mr. Muhammad Sayeed Akhtar. With the assistance of the learned counsel, we have gone through the record including the orders passed by the Land Commission Authorities.
2. The dispute in these appeals relates to large areas of land in different villages of District Jhang being Waqf property attached to the shrine of Hazrat Shah Sadiq Nihang. The lands have been in possession and under the management and control of Chief Administrator of Auqaf, Punjab, having been taken over by the Chief Administrator of Auqaf, Punjab under the Provincial Waqf Properties Laws. Ghulam Hussain and others have been tenants in respect of some of the said Waqf properties.
' Under the Martial Law Regulation 115 of 1972, a limit was prescribed on 'land holdings and land in excess of the permissible limit was . To be surrendered to the State. Further land reforms were introduced through Land Reforms Act II of 1977, which further reduced the upper permissible limit of land holdings. Both under MLR 115 as well as Land Reforms Act, 1977, "persons" owning or possessing land beyond permissible limits were required to submit declarations giving details of their holdings and excess land, i,e, over and above the permissible limits, was to vest in the Government.
Admittedly the Waqf land attached to the said shrine far exceeded the permissible limits both under MLR 115 as well as Land Reforms Act 1977, yet the Auqaf Department of Punjab did not file any declaration apparently for the reason that these Waqf lands attached to the shrine were considered exempt from operation of the land reforms. Neither the Federal Land Commission nor any other Land Commission Authority under MLR 115 or Land Reforms Act, 1977 issued any notice to the Auqaf Department to file a declaration nor any determination was made or order passed that the Auqaf Department possessed area in excess of the permissible limits or that any excess area was liable for surrender to the Government or vested in the Government. Ghulam Hussain and others continued as tenants of the Auqaf Department.
' However, a dispute arose over the land in question when the tenants, Ghulam Hussain and others, applied to the Land Reforms Authorities for grant of land in their possession under the Land Reforms laws. After hearing counsel appearing for the tenants and Auqaf Department, the Chief Land Commissioner, Punjab passed the following order on 24-9-1987:-- "Ghulam Hussain, etc. Had applied to the D.C./D.L.C., Jhang that Muslim Auqaf Department at District Jhang owned land in excess of 8000 P.I. Units and such land was liable to be resumed and allotted to them being in possession under Land Reforms Act, 1977. However, when the D.L.C., Jhang directed to file the declaration, the Auqaf Department objected. The D.L.C. Has, therefore, referred the matter to the Chief Land Commissioner for clarification with the direction to the parties-- Ghulam Hussain v. Muslim Auqaf to appear before this Court.
(2) I have heard the view-points of both sides. The petitioners contend that they are the tenants of the Auqaf Department since long and paying rent, but the Department is now trying to eject them and lease out the property to others. Learned counsel for the Auqaf Department alleged that the petitioners do not pay rent to the Department and had also filed a civil suit on the same grounds.
(3) I have considered the arguments. The issues are whether the petitioners could be ejected from the land without normal process under MLR 115 and whether the Auqaf Department should file the declaration under Land Reforms Act, 1977.
(4) It was contended by the Auqaf Department that the Federal Cabinet had issued directions the pending judicial policy decision about Trust lands, declarations from such affected parties need not be finalized. It was also stated that there was a status quo order issued by the Civil Court.
(5) The above factors cannot take away the rights of the tenants, under M.L.R.
115. Consequently, the tenants will not be ejected without due process of law. As regards filing of declaration, this will await the decision of the Federal Government. D.L.C. May be informed accordingly."
' From the above order of the Chief Land Commissioner it would be noticed that a direction was issued that the tenants be not ejected without due process of law, but, as regards filing of declaration by the Auqaf Department, it was observed that it should await decision of the Federal Government. Pursuant to the said order of the Chief Land Commissioner, Punjab Land Commission addressed a letter dated 7-12-1987 to the Deputy Land Commissioner, Jhang, to the effect that filing of declaration under the Land Reforms Act, 1977 in respect of the Waqf land need not be insisted till final decision of the Federal Government in the matter, but, in the meanwhile, the tenants in possession of the waqf land should not be ejected without due process of law.
3. Apparently, the status quo continued. No direction was issued to the Auqaf Department to file any declaration nor any declaration was filed by the Auqaf Department in respect of the Waqaf lands attached to the said shrine. The matter was then taken up by the Federal Land Commission in suo motu revision in exercise of the powers under section 27 of the Land Reforms Act, 1977 on the basis of an application submitted by the tenants on 26-6-1989 to the Chairman, Federal Land Commission. The revision was disposed of by the Federal Land Commission by order dated 14-7- 1993. In the said order, after giving history of the case and referring to the arguments advanced on behalf of the tenants and Auqaf Department, the discussion and decision of the Federal Land Commission is contained in paras. 4, 5 and 6 of the order which are reproduced here:- "The main question for adjudication is whether 'waqf' comes within the definition of 'person' under Land Reforms Act II of 1977 or not. Section 2(7) of the Act reads as follows:-- '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 do not include a local authority, a university established by law, a joint stock company which is directly or indirectly held or controlled by Federal Government or a Provincial Government or by both or any other body in which the Government holds majority interest."
' Plain reading of the above provision of law shows that although the word 'Wail stands omitted from the section, religious, educational and charitable institution have been included in the definition of 'person'. In a case Qazalbash Waqf v. Chief Land Commissioner, Punjab reported in PLJ 1989 Supreme Court page 657, the Supreme Court (Shariat Appellate Jurisdiction) have held that anyone capable of having a status of dealing with other or entering into contracts capable of enforcement is a juristic person and a 'waqf' satisfies these requirements.
(5) From the above discussion, I have no hesitation in holding that 'waqf' comes within the definition of 'person' as defined under section 2(7) of Land Reforms Act H of 1977. The respondent is, therefore, required to file declaration under the Act.
(6) The Chief Land Commissioner, Punjab in his decision of September 24, 1987, in this case had held that the filing of the declaration by the respondents Auqaf Department, Punjab, should remain suspended till the decision of the Federal Government regarding judicial policy decision as to the resumption of Waqf lands. As the Federal Land Commission has no further intimation of the Federal Government decision in this regard, I see no reason to disagree with the decision of the Chief Land Commissioner, Punjab. Therefore, the auction, if any, of the land in dispute by the respondent would be without lawful authority and must be suspended till the final decision of the Federal Government."
4. The, orders passed by the Chief Land Commissioner, Punjab and Federal Land Commission were challenged by the Auqaf Department in Writ Petition No,7990 of 1993 and, as observed, by the impugned judgment dated 12-10-1993, the writ petition was allowed and the impugned orders of the Chief Land Commissioner, Punjab and Federal Land Commission were set aside.
5. Before we refer to the reasoning of the High Court in allowing the writ petition filed by the Auqaf Department, it is considered appropriate at this stage to refer to the decision of the Shariat Appellate Bench of this Court in the case of Qazalbash Waqf v. Chief Land Commissioner, Punjab (PLD 1990 SC 99). This judgment decided a number of shariat appeals brought before this Court against the judgment of the Federal Shariat Court which, by its majority judgment, had held that the provisions of Land Reform laws were not repugnant to the injunctions of Islam. The Shariat Appellate Bench of this Court allowing the appeals held that main provisions of the Land Reforms laws were against the injunctions of Islam. The operative part of the judgment of the. Shariat Appellate Bench of this Court is reproduced here:-- ' ORDER OF THE COURT "It is unanimously held that the Federal Shariat Court and the Shairat Appellate Bench of the Supreme Court have the jurisdiction and the power under Chapter 3-A of Part VII of the Constitution, to examine the Land Reforms Regulation, 1972 (hereinafter referred to as the Regulation) and the Land Reforms Act, 1977 (hereinafter referred to as the Act) and to decide whether or not provisions thereof are repugnant to injunctions of Islam.
(2) In accordance with the opinion of the majority of the Judges separately recorded, it is held that the following provisions of the Regulation, the Act and the Punjab Tenancy Act, 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam:--
(i) Para.2, clause (7) of the Regulation in so far as it includes Islamic Waqf for the purposes of other paras. Of the Regulation which are being held wholly or partly repugnant to Injunctions of Islam.
(ii) The whole of paragraphs 7, 8, 9, 10, 13 and 14 and consequentially paragraph 18 of the Regulation.
(iii) Paragraphs 15, 16, 19 and 20 in so far as they ignore the rights and obligations, the terms and conditions of the grant licence or lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and orchards and dealing further with them under paragraphs 19 and 20 thereof.
(iv) Paragraph 17 of the Regulation in so far as it relates to Waqf and all other institutions which can validly fall within the definition of Islamic Waqf, and consequential to that extent paragraph 21 also.
(v) Paragraph 25(1) of the Regulation in so far as it does not give sanctity to the grounds of ejectment available in a valid contract between the landlord and the tenant, entered into in accordance with the injunctions of Islam.
(vi) Paragraph 25(3)(d) of the Regulation has already been declared to be repugnant to the Injunctions of Islam in Said Kamar s case (PLD 1986 SC 360).
(vii) The whole of sections 3, 4, 5, 6, 7(5), 8, 9, 10 and consequentially the whole of sections 11 to 17 of the Act.
(viii)The whole of section 60-A of the Punjab Tenancy Act, 1887 in so far as it makes non- occupancy tenancy heritable irrespective of the terms of the contract.
(3) The question of repugnancy or otherwise of paragraphs 22, 23, 24 of the Regulation is left undermined in these proceedings as the Court feels that proper and full assistance has not been received and another decision of the Federal Shariat Court has come into the field during the interregnum.
(4) In accordance with the opinion of the majority of the Judges it is held that the provisions of Paragrah 25(3), clause (a), (b) and (c) of the Regulation are not repugnant to the Injunctions of Islam.
(5) Shariat Appeals No,1 of 1981, 3, 8, 9, 10 of 1981 and 1 of 1987 are allowed and Shariat Appeal No,4 of 1981 with the reservation contained in para. 3 above and Shariat Appeal No,21 of 1984 are partly allowed. All the parties shall bear their own costs but the appellant in Shariat Appeal No,1 of 1981 being a Waqf shall be entitled to claim the costs from the respondent the Federal Government.
(6) This decision shall take effect on 23rd March, 1990 whereupon the provisions declared repugnant to the injunctions of Islam will cease to have effect.
(7) The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i,e, on 23-3-1990.
' Order accordingly."
6. Two legal questions of importance came up for determination by the High Court. The first was whether the Chief Administrator of Auqaf, Punjab, who had been declared a body corporate by the Provincial Waqf laws, was covered by the definition of "person" and, therefore, required to file a declaration under the Land Reforms laws. It may be noted that, according to para. 8 of MLR 115 and section 3 of Land Reforms Act, 1977, restrictions on ownership and possession of land by "persons" had been placed and persons owning or possessing land in excess of the permissible limits were required to file declarations on prescribed forms giving details of their holdings under para.12 of MLR 115 and section 7 of the Land Reforms Act, 1977. The other important question for consideration before the High Court was whether the excess land vested in the Government prior to 23-3-1990, the date fixed by the judgment in the case of Qazalbash Waqf, when the provisions contained in the Land Reforms laws declared repugnant to the Injunctions of Islam ceased to have effect. If the excess land had already vested in the Government prior to 23-3-1990, Auqaf Department could not take any benefit of the decision in the case of Qazalbash Waqf, but in case the excess land had not vested in the Government prior to the decision in Qazalbash Waqf case taking effect on 23-3-1990, the disputed lands would no longer be subject to any action under the Land Reforms laws, as on that date, according to the decision in Qazalbash Waqf case, the relevant provisions of the Land Reforms laws ceased to have effect being repugnant to the injunctions of Islam.
7. The word "person" has been defined in para. 2(7) of MLR 115 and section 2(7) of Land Reforms Act, 1977. There is hardly any discussion on the definition "person", with reference to the question whether Chief Administrator of Auqaf was covered by the said expression "person", in the impugned judgment dated 12-10-1993 of the High Court.
' On the second question, the High Court has held that no part of the disputed land vested in the Government prior to 23-3-1990, whereafter the relevant provisions of the Land Reforms laws ceased to have effect and, therefore, the disputed lands remained unaffected by the Land Reforms and remained under the control and management of the Auqaf Department. It was noticed by the High Court that neither the Chief Administrator of Auqaf submitted any declaration as required by the Land Reforms laws nor any declaration was made by the Land Reforms Authorities before 23- 3-1990 in respect of the disputed lands, on which date the relevant provisions of Land Reforms ceased to have any effect having been declared repugnant to the Injunctions of Islam by judgment in Qazalbash Waqf case. It was held by the High Court that, till the filing of the declaration under section 6 of the Land Reforms Act, 1977 by a person regarding excess land or determination of this question by the Land Reforms Authorities under section 6(5) of the Act, the land in question did not vest in the Federal Government and continued to be held, possessed and managed by the Chief Administrator of Auqaf and, after 23-3-1990, the Land Reforms Authorities or the Federal Government were not vested any powers to deal with the disputed land or issue any direction regarding orders passed by the Chief Administrator of Auqaf in respect of the said land.
The arguments raised by the Advocate-General that, on the promulgation of the Land Reforms Act, 1977, the excess land held by any person automatically vested in the Federal Government, was not accepted by the High Court. Reference was made to sections 3, 6 and 9 of the Act 1977 in support of the view taken. Para. 10 of the impugned judgment of the High Court is reproduced here:-- "We have held in Writ Petition No,4898 of 1989 that the self-executory provisions of the Act regarding vesting of land were to become operative either on submission of declaration which would be acknowledgement of the fact that the land possessed or owned by a person was in excess of permissible limits which itself would amount to determination by the authorities on the basis of said admission that he was possessing land in excess or on determination to be made by the authorities under section 6(5) and before that. If such a declaration or determination had been made before 23-3-1990 by virtue of which the excess land had vested in the Federal Government before the said date, the Land Reforms Authorities could get completed the other formalities regarding selection of land by such person for surrendering it to the Government."
8. As observed in para. 6 hereinabove, two legal questions of importance were argued before the High Court, namely, whether the Chief Administrator of Auqaf was a "person" as defined in the Land Reforms laws and secondly when did the excess land held or possessed by any "person' vested in the Government. Hafiz S.A. Rehman, learned Advocate Supreme Court for the appellant in Civil Appeal No,25 of 1997 submitted that all those who were covered by the definition of "person' contained in para. 2(7) of MLR 115 and later under section 2(7) of Land Reforms Act, 1977, were required to file declarations showing the excess lands. It was pointed out that though, in the definition of "person", the word 'trust" had been used and not "Waqf", in para 17 of MLR 115 reference has been specifically made to "Waqf" also and same is the position in section 17 of Act 1977.
Reliance was placed on the judgment of this Court in the case of Tanvir Ahmed Siddiky v. Province of East Pakistan (PLD 1968 SC 185 at 207). Mr. Sayeed Akhtar, learned Advocate Supreme Court for the appellant in Civil Appeal No,24 of 1995 also argued supporting the proposition advanced by Hafiz S.A. Rehman. As observed, Mr. Sh. Altaf Elahi, Additional Advocate-General, Punjab, adopted the arguments of the two counsel. Ch. Khurshid Ahmad, learned Advocate Supreme Court appearing for the Chief Administrator of Auqaf, Punjab argued that his client was a corporate sole and referred to the Punjab Waqf properties laws. He referred to the distinction between trust and waqf and argued that the Land Reforms laws did not extend to public Waqf where the properties vested in Allah Almighty and relied upon the following judgments for making out a distinction between trust and Waqf:--
(i) Gholam Hosain Sherazee v. Province of East Pakistan (PLD 1967 Dacca 1).
(ii) Saira v. Settlement Authorities (PLD 1973 Lahore 327).
(iii) Muhammad Ameen v. Islamic Republic of Pakistan (PLD 1981 FSC 23).
(iv) Administrator-General of Auqaf v. Federal Land Commission (1985 CLC 700).
(v) Mansoor Ahmad v. Chief Administrator of Auqaf (1993 M LD 2529).
9. On the first question, learned counsel for the parties had argued at length but a reference to the judgment in the case of Qazalbash Waqf case (PLD 1990 SC 99) shows that this question has already been considered and decided. Reference may be made to page 148 of the report (opinion of Shafiur Rahman, J.) where it was held as follows:-- "Coming now to the various provisions of the Regulations and its repugnancy to the Injunctions of Islam, the first objection is to the definition of person contained in para. 2, clause (7) of the Regulation. It defines person so as to include a religious, educational or charitable institution every trust whether public or private. Para. 17 of the Regulation extends the ceiling and the surrender provisions of the Regulation to every religious, charitable and educational society or institution and to every trust or Waqf whether public or private. It will be incorrect to say that Waqf cannot be classified as a juristic entity or juristic person. Ownership of property is not the only test for a juristic entity. Anyone capable of having a status, of dealing with others, of entering into contracts, capable of enforcement, is a juristic person. A Waqf satisfies these requirements."
We have not been pursuaded to take a different view and we confirm the earlier view of this Court taken in Qazalbash Waqf case that the definition of "person" contained in the Regulation includes Waqf also.
10. On the second question, it was argued by Hafiz S.A. Rehman that, immediately on promulgation of MLR 115 on 11-3-1972, the excess lands under that Regulation vested in the Government despite the fact that no declaration had been filed by the Chief Administrator of Auqaf, Punjab in respect of its holding neither any determination had been made by Land Reforms Authorities as to how much land was the excess land i,e, over and above the permissible limit. Similarly, it was argued that on the enactment of Land Reforms Act, 1977 on 19-1-1977, the excess lands held by the Chief Administrator of Auqaf, Punjab vested in the Government automatically despite no action having been taken by the Auqaf Department for filing declaration under the Act or for the reason that the Land Reforms Authorities had not taken any action for determination of the excess area and actually resuming the excess land.
' It was submitted that under MLR 115 the land in excess of the permissible limit vested' in the Government under para. 13 of the Regulation which reads as follows:-- "13. Vesting in Government of excess land.---(1) Land in excess of the area permissible for retention under Part III shall vest absolutely in Government. Free from any encumbrance or charge and without payment of any compensation.
(2) Any encumbrance or charge existing on land surrounded by a person, which vests in Government under sub-paragraph (1), shall be deemed to have been transferred to the land retained by such person under Part III.
(3) Where any person is in possession of, or is holding, land in excess of the area permissible for retention under Part III, so much of such excess land as in his possession as a lessee or mortgagee or is held by him as the landlord of an occupancy tenant or a Muqarraridar or as an Alam Malik shall not vest in Government but shall, subject to the other provisions of this Regulation, revert to the lessor, mortgagor, occupancy tenant, Muqarraridar or Adna Malik, as the case may be, and shall be deemed to have so reverted at the commencement of this regulation."
' Then reference was made to section 9 of the Land Reforms Act, 1977 which reads as follows:-- "9. Vesting in Government of excess land.---(1) Land in excess of the area permissible for retention by a person under section 3, shall be surrendered by him to the Land Commission of the Province where such land is situate, and it shall vest in Government free of any encumbrance or charge: ' Provided that rights and obligations of any person in respect of the standing crops on land surrendered under this section shall remain unaffected until the standing crops are removed or the 30th day of June next following, whichever is earlier.
(2). Land determined, under subsection (5) of section 7, to be in excess to the entitlement of a person shall vest forthwith in the Government free of any encumbrance or charge and the defaulter shall be deemed to have forfeited the right and option under section 4.
(3) Any land under litigation which is in excess to the entitlement of a person under this Act, shall vest in the Government subject to the final adjudication of the rights of the litigants.
(4) Any land surrendered by a person which was in his possession as a lessee or mortgagee shall not vest in Government but shall, subject to the provision of section 3, revert to lessor or mortgagor, as the case may be.
(5) Any land surrendered by a person which was held by him as the landlord of an occupancy tenant or a Muqarraridar or as an Adna Malik shall not vest in Government but shall, subject to other provisions of this Act, vest in the occupancy tenant Muqarraridar or Adna Malik, as the case may be free from any uncumbrance exchange."
' In subsection (2) of section 9 of the Act 1977, reference has been made to subsection (5) of section 9 which is also reproduced here:- "(5) Where any person fails to make a declaration under this section, an officer of the district concerned, who is authorized by a Commission in this behalf, shall, of his own motion or otherwise, and after calling for such information and recording such evidence as he may deem necessary, determine the land owned or possessed by such person in excess to his entitlement under this Act and make an order to this effect."
' Hafiz S.A. Rehman in support of his proposition argued that the concerned provisions of Land Reforms laws about filing declarations, determination of the excess land, resumption proceedings etc. Are all self-executory provisions and failure to file any declaration under the Land Reforms laws and take any action required to be taken by the declarant and the Land Reforms Authorities did not affect the vesting of the excess lands beyond the permissible limits in the Government on the promulgation/enactment of Land Reforms laws. Reliance was placed on the following judgments of this Court for the contention that the excess lands attached to the shrine in question and held by the Auqaf Department automatically vested in the Government on the promulgation/enactment of the Land Reforms laws and the Land Commission Authorities could take action under the self- executory provisions of Land Reforms laws even after 23-3-1990, the date prescribed by the judgment in Qazalbash Waqf case:-
(a) Chairman, Federal Land Commission v. Akhtar Abbas (PLD 1989 SC 550 at 561).
(b) Chief Land Commissioner, Punjab v. Ch. Atta Muhammad Bajwa (1991 SCM R 736 at 747).
' Reliance was also placed on the following unreported judgments:--
(i) Muhammad Tahir Shah and others v. Federal Land Commission (judgment dated 10-7-1991 in Civil Appeals Nos.292 of 1976 and others).
(ii) Malkani Mumtaz Begum v. Province of Punjab (judgment dated 1-3-1993 in Civil Appeal No,897 of 1990).
(iii) Syed Aziz v. Pakistan (judgment dated 13-1-1980 in Writ. Petition No,1826 of 1974 decided by Lahore High Court).
' Mr. Sayeed Akhar, learned Advocate Supreme Court appearing for the appellants in Civil Appeal No,24 of 1995 supported the arguments advanced by Hafiz S.A. Rehman In addition, he submitted that the Sajjada Nasheen of the shrine in question had in fact filed a declaration/reference in respect of some lands attached to the shrine and this shows that a decisive step had been taken under the Land Reforms. It was, however, admitted by counsel that his claim was that he was the owner of such lands as Sajjada Nasheen and the Auqaf Department could not take over the said lands. The matter came up before this Court and it was decided against the Sajjada Nasheen. It was held that the entire property was Waqf property. The said judgment of this Court is reported in the case of Faqir Muhammad Khurshid v. Chief Administrator of Auqaf (PLD 1987 SC 60).
' In addition, on the question of self-executory provisions reliance was placed on two judgments, namely, Hakim Khan v. Government of Pakistan (PLD 1992 SC 595 at 633) and Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901).
' 10-A. Ch. Khurshid Ahmad, learned Advocate Supreme Court appearing for the Auqaf Department, argued that, under the Land Reforms laws, the excess land did not vest is the Government Automatically and some decisive steps had to be taken by the Land Reforms Authorities which were not taken in respect of the disputed lands and as such, on the judgment in Qazalbash Waqf case becoming operative on 23-3-1990, the Land Reforms Authorities had no authority or jurisdiction to take any action against the Administrator of Auqaf for resumption of any of the disputed lands.
' Reliance was placed by Ch. Khurshid Ahmad on the decision of the Balochistan High Court in the case of Muhammad Jafar Khan Leghari v. Balochistan Land Commission (1977 MLD 1934) where it was held that action under para. 13 of the Regulation could be validly taken and finalized till 23-3- 1990 when the judgment of this Court in Qazalbash Waqf case became effective, but where no action under para. 13 of the Regulation had been taken till 23-3-1990 then such cases were open and no action could be taken in respect of such lands after expiry of the period determined by the Supreme Court.
11. Reference may again be made here to certain relevant facts about which there is no controversy that have been noted in the earlier part of this judgment. No declaration was filed on behalf of the Waqf in question either under MLR 115 or Land Reforms Act II of 1977. Mr. Sayeed Akhtar, learned Advocate Supreme Court appearing for the appellants in Civil Appeal No,24 of 1995, no doubt, had submitted that the "Sajjadah Nashin" of the shrine in question had filed a declaration in respect of some land attached to the shrine and an argument was advanced that this declaration by the "Sajjadah Nashin" was a decisive step taken on behalf of the Waqf under the Land Reforms laws.
But, as noted earlier, it was admitted by Mr. Sayeed Akhtar that his claim was that he was the owner of the said land as Sajjadah Nashin and Auqaf Department could not take over such land. It is apparent that this declaration by the Sajjadah Nashin claiming the same land as his personal property could not be treated as a declaration by or on behalf of the Waqf under the Land Reforms laws. The controversy arising out of the said claim of Sajjadah Nashin reached this Court and the judgment of this Court is reported in the case of Faqir Muhammad Khurshid v. Chief Administrator .6f Auqaf (PLD 1987 SC 60), wherein it was held that the entire property claimed by the Sajjadah Nashin was not his property but was Waqf property. It, therefore, stands confirmed that no declaration under the Land Reforms laws was filed by or on behalf of the "Waqf". Admittedly there was no determination regarding holding of the Waqf by any Land Reforms Authority. In fact, no notice was given by any Land Reforms Authority to the Waqf to file a declaration under the Land Reforms laws or that the Waqf had violated any provision of the Land Reforms laws by not filing the declaration about its holdings. The Federal Government itself was not clear whether the Waqf in question, a Muslim Waqf, was required to file a declaration and was subject to the Land Reforms laws. In the order dated 24-9-1987 of the Chief Land Commissioner, Punjab, while directing that the tenants would not be ejected without due process of law, it was observed that "as regards filing of declaration, this will await the decision of the Federal Government D.L.C. May be informed accordingly". Then, pursuant to the said order of the Chief Land Commissioner, Punjab Land Commission addressed a letter dated 12-7-1987 to the D.L.C. Jhang to the effect that filing of declaration under the Land Reforms Act, 1977, in respect of the Waqf land need not be insisted till the final decision in the matter.
' It would follow from the above admitted facts that neither the Waqf filed a declaration under the Land Reforms laws nor any step whatsoever was taken by the Federal Government or the Land Reforms Authorities requiring the Waqf to file any declaration or that by not filing the declaration under the Land Reforms laws the Waqf had violated such laws, till 23-3-1990, the date fixed by the Supreme Court in Qazalbash Waqf case when the provisions contained in the Land Reforms laws declared repugnant to the injunctions of Islam ceased to have effect. The decision of these appeals, therefore, depends on the answer to one question and that is whether in the absence of any action under the Land Reforms laws either on the part of the Waqf or by the Federal Government/Land Reforms Authorities, the land in excess of the permissible limits under the Land Reforms laws automatically vested in the Government on the enactment of the Land Reforms Laws.
12. There is a distinction between the provisions relating to vesting the property in the Government under Evacuee and Settlement laws.
' In section 6(1) of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 it was provided as follows:-- "All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947."
' This provision was retained in Pakistan (Administration of Evacuee Property)
' Ordinance XVIII of 1956 (section 6). Identical provision is to be found in section 7 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. Somewhat similar provision is contained in section 4(3) of the Displaced Persons (Land Settlement) Act, 1958.
13. On the other hand the provision in the Land Reforms Regulation, 1972 (MLR-115) is section 13. In subsection (1) of section 13 of this Regulation it is provided that land in excess of the area permissible for retention in Part III shall vest absolutely in Government free from any encumbrance or charge and without payment of any compensation. Similarly in subsection (1) of section 9 of the Land Reforms Act, 1977 it is enacted that the land in excess of the area permissible for retention by a person under section 3, shall be surrendered by him within four months of the commencement of this Act to the Land Commission of the Province where it shall vest in Government free of any encumbrance or charge. Subsection (2) of section 9 of this Act provides that land determined under subsection (5) of section 7 to be in excess to the entitlement of a person shall vest forthwith in the Government free of any encumbrance or charge and the defaulter shall be deemed to have forfeited the right and option under subsection (4). Section 7 of the Act relates to declarations to be filed under the Act. Subsection (1) of section 7 empowers the Provincial Land Commission to require through a notification that any person or class of persons mentioned in the notification shall submit such declarations to such authority in such manner and form and by such date, as may be specified in the notification. Subsection (5) of section 7 is to the effect that where a person fails to make a declaration under section 7, an authorised officer shall on his own motion after calling for such information and recording such evidence as he may deem necessary determine the land owned or possessed in excess to his entitlement under the Act and make an order to that effect.
14. The distinction that had been noticed regarding the vesting of the property in the Custodian/Government under the Evacuee and Settlement laws on the one hand and the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977 on the other is that under the Evacuee and Settlement laws the land vested automatically in the Custodian/Government on a date specified in such laws, whereas under the Land Reforms Regulation, 1972 and Land Reforms Act, 1977 no date was specified on which the excess land would stand vested in the Government and the provisions referred to hereinabove show that vesting depended on some action having been taken by the owner say by filing a declaration on the prescribed form or determination of the excess holding by an authorised officer on failure of an owner to file a declaration. Some step was required to be taken either by the owner or by the Land Reforms Authorities before the excess land, if any, could vest in the Government. Admittedly, in the present case, no such step had been taken either by the Waqf or by the Land Reforms Authorities. As noted, the Federal Government itself had not decided whether the Waqf was required to file a declaration.
' The above finds support from the observation of Mr. Justice Muhammad Afzal Zullah in Qazalbash Waqf case (PLD 1990 SC 99). At page 103 of the judgment Mr. Justice Muhammad Afzal Zullah observed as follows:-- "However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings, in the implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein (i,e, 23-3-1990)."
15. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, had argued that the excess land automatically vested in the Government on the promulgation/enactment of the laws and the Land Reforms Authorities could take action under the relevant provisions of the Land Reforms laws, which were self-executory provisions, even after 23-3-1990. The date prescribed by the judgment in the Qazalabash Waqf case. He relied upon four judgments of this Court and one unreported judgment of the Lahore High Court. The case of Chairman, F.L.C. v. Akhtar Abbas (PLD 1989 SC 550) related to Land Reforms Regulation, 1959 and in that case the respondent had filed a declaration.
The question whether any step was required to be taken either by the owner or by the Land Reforms Authorities under the Land Reforms Regulation, 1959 before the excess land vested in the Government was neither in issue nor considered in that judgment.
' In the other case relied upon by Hafiz S.A. Rehman Chief Land Commissioner v. Atta Muhammad Bajwa (1991 SCM R 736) also, a declaration had been filed and action had been initiated. In this case also the question whether any step was required to be taken by the owner or the Land Reforms Authorities before 23-3-1990 did not come for consideration.
' Reliance was then placed on an unreported judgment dated 10-7-1991 of this Court in Civil Appeal No,292 of 1994 (Muhammad Tahir Shah v. Federal Land Commissioner). In the arguments before the Court in that case, reliance had been placed on Qazalbash Waqf case. The Court then observed as follows:-- "It is contended that in view of this judgment the gifts which were effected by paragraph 7 of the Regulation must now be treated to have been properly and validly made. This contention is without any merit. As pointed out in the judgment itself the declaration given therein was to take effect on 23-3-1990 and such provisions of the Regulation which were self-executory were not to be any manner affected thereby. In this context reference may be made to the observations of two of the learned Judges who delivered separate opinions in the aforementioned case.
' Thus, Muhammad Afzal Zullah, J. (as his lordship then was) observed:-- "However, I am of the view that the decision of this Court shall not affect those cases in which any decisive step has been or is now taken in the ordinary normal course at any stage of the proceedings, in implementation of the provisions which would cease to have effect as a result of the Court order, prior to the date to be fixed therein."
Similarly, Shafiur Rahman, J. Observed:-- "As most of the provision found repugnant to Islam happen to be self-executory, they have of their own force taken effect, accomplished the object of the legislation leaving the mere implementation of it, to be completed on the strength of machinery provisions. Such self-executory provisions will remain unaffected by this decision. However, those provisions which have a prospective effect also and are not self-executory, shall get annulled from the date the decision declaring them repugnant to the Injunctions of Islam takes effect".
' It is to be noticed that by force of paragraph 7 of the Regulation itself all gifts, leaving aside those which were expressly saved, became void. The declarations submitted by the donors already stand scrutinized and the lands covered by the gifts have been treated as part of their holdings.
Therefore, even if some of the appellants have yet not surrendered the excess land it would not make any difference for now it is a question of merely implementing the orders already passed by competent authorities. In the circumstances the appellants cannot take advantage of the judgment in the Qazalbash Waqf case."
' The above observations do not help the case of the appellants. Reliance had been inter alia placed on the observation of Mr. Justice Muhammad Afzal Zullah in Qazalbash Waqf case which refers to "decisive step' having been taken at any stage of the proceedings. In the present case, as observed earlier, no step had been taken either by the Waqf or by the Land Reforms Authorities nor any proceedings were pending before any Land Reforms Authority regarding the land holding of the Waqf. Another unreported judgment relied upon by Hafiz S.A. Rehman was in Civil Appeal No,897 of 1990 (Malkani Mumtaz Begum v. Province of Punjab) decided on 1-3-1993. In that judgment it was observed by this Court as follows:-- "In the appeal before us the appellant's liability to surrender excess land stood finally determined long before 23-3-1990 which was the date on which the declaration granted in the Qazalbash Waqf was to become operative. She cannot therefore take advantage of the said judgment."
' This judgment also does not help the case of the appellants.
' Reliance has also been placed on a judgment of a Division Bench of the Lahore High Court passed in Writ Petition No,826 of 1974 (Syed Azimul Islam v. Pakistan) decided on 13-1-1980. In this judgment of the Lahore High Court also the owner had submitted the required declaration under the Land Reforms Regulation. According to the High Court, the excess area had notionally vested in the Government and only the procedural requirement of identifying exact limit of the excess land and its location had to be fulfilled. This case is, therefore, clearly distinguishable. Hafiz S.A. Rehman had, however, relied upon the following observation of the Lahore High Court in that judgment:- "The learned counsel for the petitioners is not correct in assuming that the Regulation was an enabling piece of legislation and depended for its effect and application on a resumption order to be passed by the designated authority. The provisions referred to leave no manner of doubt that it had immediately on its promulgation the effect of determining the rights and entitlement of the proprietors and their obligations. What had to be done thereafter was only to give effect to the right and obligations so created."
' As observed earlier in this judgment, the question as to whether any step was required to be taken either by the owner or by the Land Reforms Authorities before the excess land could vest in the Government, did not come up for consideration before the Lahore High Court in that case. We have already referred to the difference in the provisions relating to Evacuee and Settlement laws on the one hand and Land Reforms Act, 1977 on the other hand and the opinion of Mr. Justice Muhammad Afzal Zullah in Qazalbash Waqf case had taken the view that the excess land, if any, did not vest automatically in the Government on the promulgation/enactment of the said Regulation/Act and some step had to be taken by the owner or by the Land Reforms Authorities under the Land Reforms laws before 23-3-1990 which admittedly had not been taken in the present case, and additionally the Federal Government itself had not decided whether to require the Waqf to file any declaration under the Land Reforms laws. For the aforesaid reasons decisions in the case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) and Mst. Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901) also do not help the appellants.
16. In the facts and circumstances of these cases, therefore, we are of the view that the excess land, if any, of the Waqf did not, automatically, vest in the Government on the promulgation/enactment of the Land Reforms Regulation 1972/Land Reforms Act, 1977 and, after 23-3-1990, the date fixed by the Qazalbash Waqf judgment, fresh action could not be initiated by the Land Reforms Authorities against the Waqf. These Civil Appeals Nos.23, 24 and 25 of 1995 are, therefore, dismissed but with no orders as to costs.