' This writ petition relates to the action of the Chief Administrator of Augaf (respondent No, 1) under section 6 of the West Pakistan Waqf Properties Ordinance, 1961.
2. It appears that by Notification No, 1 (109)-Auqaf/70, dated 28-10-70, the respondent took over certain Waqf properties including Field No, 216-217. The dispute in this Petition relates to Field No,
218. The respondent had directed vide letter dated 28-11-1970 (Annexure 'C') that the said field having not been already taken over through the aforementioned Notification,- the petitioner's possession thereon be not disturbed. However, by a subsequent Notification No, 1 (415)-DWP- Auqaf/73 (Annexure R/1), the respondent took over and assumed the administration, control, management and maintenance of Field No, 218 as well. The petitioner claiming an interest in the said property (Field No, 218) moved an application before the learned District Judge under section 7 of the Ordinance. It was dismissed as time-barred. His appeal in the High Court (F. A. O. No, 169/75) has, through a judgment passed by me today, been allowed and the case has been remanded for fresh trial.
3. During the pendency of the application under section 7 of the Ordinance before the learned District Judge, the petitioner moved this writ petition with a prayer that the Notification relating to Field No, 218 be quashed as without jurisdiction and without lawful authority. As an interim relief it was also prayed that the respondent be restrained from ejecting the petitioner from the property in dispute.
4. It is agreed that most of the questions raised in this writ petition can be agitated and relief claimed accordingly before the learned District Judge in proceedings under section 7 of the Ordinance. Learned counsel for the petitioner, however, has contended that qua the ejectment of the petitioner from the disputed field, the provisions contained in section 6-B and not section 6-A of the Ordinance are attracted That being so and the former provision not having been complied with, the petitioner cannot be ejected from the land in dispute. Learned counsel for the respondent has relied on section 6 of the, Ordinance read with rule 7(3) of the West Pakistan Waqf Properties (Administration) Rules, 1960 as amended up-to-date and section 6-A to contend that the petitioner was not entitled to any concession as provided in section 6-B. The relevant provisions referred to by both the learned counsel read as follows :- Section 6. Chief Administrator may take over Waqf property by notification.-(1) Notwithstanding any thing to the contrary contained in section 22 of the Religious Endowments Act, 1863, or any other law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority, or in any proceeding pending before any Court or other authority, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a waqf property ' Provided that during the lifetime of a person dedicating a Waqf property, the Chief Administrator shall not take over and assume the administration, control, management and maintenance of such Waqf property, except with the consent of such person and on such terms and conditions as may be agreed to between such person and the Chief Administrator.
' Explanation.-For the purpose of this section, "control" and "management" shall include control over the performance and management of religious, spiritual, cultural and other services and ceremonies (Rasoomat) at or in a Waqf property.
(2) No person shall perform services or ceremonies (Rasoomat) referred to in subsection (1) except with the prior permission of the Chief Administrator and in accordance with such directions as may be given by him.
' Section 6-A. Eviction of penons wrongfully in possession ofWaqf properties.-Any person unauthorisedly entering upon occupation of any immovable Waqf property or using or occupying any such property to the use or occupation whereof, by reason of any provisions of this Ordinance or any rule made thereunder, he is not entitled or has ceased to be entitled, may, after being given a reasonable opportunity of showing cause against such action, be summarily evicted by the Administrator, with the use of such force as may be necessary, and any crop raised in such property shall be liable to forfeiture, and any building or other construction erected thereon shall also, if not removed by such person after service on him of a notice by the Administrator requiring him to remove such building or construction within a period of not less than thirty days of the service on him of such notice, be liable to summary removal after the expiry of the period specified in the notice.
' Section 6-B. Power to terminate a lease or resume a tenancy for breach of conditions.--(1) If the Administrator is satisfied that a lessee or tenant of any immovable Waqf property has committed a breach of the conditions of the lease or tenancy, the Administrator may, after giving such lessee or tenant an opportunity to appear and state his objections, order the termination of lease or resumption of tenancy ' Provided that if the breach is capable of rectification the Administrator shall not order the termination of the lease or resumption of the tenancy unless he has issued a written notice requiring the lessee or tenant to rectify the breach within a reasonable time, not being less than thirty days, to be stated in the notice, and the les tee or tenant has failed to comply with such notice. {2) Where an order terminating the lease or resuming the tenancy has been passed under the provisions of subsection (1), the Administrator may forthwith re-enter upon the Waqf property aed resume possession of it, subject to the payment of compensation to he fixed by the Administrator for uncut and ungathered crops or for the improvements. If any, that may have been made by the lessee or tenant under the terms of the lease or tenancy or with the permiss!On of the Chief Administrator : ' Provided that if the lease or tenancy be allotted to any other person, the amount of the compensation, if any, paid to the outgoing lessee or tenant may be recovered from the new lessee or tenant. Rule 7. Lease of waqf Properties- (1)
(2)..
(3)(1) After the publication of the notification under section 6 of the Ordinance, the Manager may issue a notice requiting the occupant of the Waqf property within 7 days of the receipt of the notice, to deliver vacant possession thereof to him or to execute a lease deed in respect thereof in favour of the Chief Administrator.
(2) If the occupant fails to comply with the notice issued under above sub-rule (1), the Manager may eject him with the use of such force as may be necessary.
5. After the admission of this writ petition the respondent served a notice on the petitioner in October, 1973 (Annex. R/1 with Criminal Original No, 142/W of 1973). The petitioner sent a reply to the notice (Annex. R/2 in the said Criminal Original), whereupon the concerned Administrator of Auqaf passed the following order on 3-1-1974 (Annex. R/3 in the Criminal Original) :- "In exercise of the powers conferred on me under section 6-A of the West Pakistan Waqf Properties Ordinance, 1961, I, Nisar Ahmad Hashmi, Administrator of Auqaf, Rawalpindi Zone, Rawalpindi, after considering the reply sent by Mumtaz Hussain alias Sain Boota son of Chanan Din, caste Kashmiri, Ex- Mujawar Khanqah H. Suleman Paris, Jhelum City in response to the notice issued by me, am convinced that he has not given sufficient and cogent reason to justify his occupation on the property bearing Field No, 218 measuring 2 kanals and 19 marlas situated in Jhelum City where Mazars of Abdul Karim Sahib, Shahid Sahib, Mai Sahiba, Langar Khana two rooms house of Khadim open one well and hand-pump are situated. He has furnished no proof whatsoever in support of his contention that the property is not Waqf and that he is a tenant. On the contrary the Department has sufficient material which shows that the property is Waqf and secondly the status of Mumtaz Hussain was merely that of a Mutwalli and not of a tenant.
' In these circumstances I, therefore, order his ejectment by virtue of the powers conferred on me and mentioned above from the property whose details are given above."
6. There is no agreement on facts by the learned counsel with regard to the assertion by the petitioner that the property belonged to Provincial Government ; that he was merely a tenant thereon ; and that he was-protected by or had become owner under, Martial Law Regulation No,
115. They, however, agree that this and similar other questions as to whether the respondent could have taken over the property in dispute under section 6- of the Ordinance could be agitated before the learned District Judge. I refrain from making any comment in this behalf. It might prejudice the case of one or the other party before the said forum.
7. On publication of notification under section 6 and after service of notice under rule 7(3), the Auqaf authorities can, if the occupant of the property ignores the notice, eject him with force after seven days of service of the notice. In such a situation, after the expiry of seven days limit, the use and occupation of the property by the person concerned would be against "the provisions of the Ordinance and the rules made thereunder" and thus he would cease to be entitled to the occupation. That being so, the provisions of section 6-A of the Ordinance would also, in addition to rule 7(3), become applicable In case, however, an occupant has not been proceeded against under rule 7(3), that would not bar action under section 6-A. Provisions are complementary to each other. Depending upon, and making allowance for, natural variations, one or the other or both provisions might! Be resorted to. Section 6-B deals with entirely different type of cases, wherein the occupant has the rights of a tenant/lessee on the property.
8. In this case, the order of the Administrator, Auqaf, dated 3-1.1974, shows that the factual claim of the petitioner that he was a tenant on the property in dispute has not been accepted. On the other hand, he has been shown as a Mutwalli. His case is covered by section 6-A and not section 6-B. It would be enough if he is afforded reasonable opportunity of showing cause against summary eviction with the use of such force as may be necessary. Before the said order dated 3-1-1974 was passed, it is established ' through the notice (Annex. R/1) and the reply (Annex. R/2) that the petitioner was allowed reasonable opportunity of .Showing cause. Thus, in the circumstances, no grievance can now be made in so far as his eviction from the property in dispute is concerned. Learned counsel for the respondent placed reliance on Sayed Muhammad Ali Shah Bokharl v Chief Administrator of Auqaf, Punjab and three others (1) affirmed in 1975 SCMR 297 and also on Muhammad Wasil v. Manager of Waqf Properties and two others (2) in support of his contention that the petitioner was not entitled to any show-cause notice. In view of the peculiar circumstances wherein petitioner has been afforded sufficient opportunity during the pendency of this petition, it is not necessary to examine the rulings in this case.
9. In the light of the foregoing discussion, I find no merit in this writ petition and the same is dismissed but there shall be no order as to costs.
(1) PLD 1972 Lab. 416 (2) PLD 1972 Lah. 425