' RANA BHAGWAN DAS, J.---Petitioner Chief Administrator Auqaf, Sindh has brought this Constitution petition for a declaration that properties bearing Survey numbers 519-A and 521, Ward 'D' Sukkur be declared as Waqf Property belonging to Auqaf Department and that it is under possession and occupation of said Department. There is another prayer for declaration to the effect that notification, dated 29-9-1987 issued by the Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department declaring Survey Numbers 519-A and 521 as Katchi Abadis is illegal, null and void and without any lawful authority. As a , consequential relief a permanent injunction is also sought restraining the respondents from interfering with the possession of the petitioner over the aforesaid properties.
' Case of the petitioner in a nutshell is that both the properties were declared as Waqf property by the petitioner vide Notification No, 3(192) Auqaf-60, dated 6-8-1960 and notification of the even number, dated 12-12-1961 published in the West Pakistan Gazette (Extraordinary), in exercise of the power under section 6 of the West Pakistan Waqf Properties Ordinance, 1959. By the first notification petitioner notified the taking over and assuming administration, control, management and maintenance of 'Mukam' in City Survey No, 519 near slaughter house Sukkur and Waqf properties attached thereto, namely, graveyard in an area of 45000 square feet with 300 huts and credit balance lying with the District Court, Sukkur in Account No, 63 in National Bank of Pakistan, Sukkur.
By the second notification by way of addendum survey number 521 of Ward 'D', Sukkur was added after the words and figures "City Survey No,519, Ward D", in the earlier notification. By another , notification of even number, dated 6th September 1960 petitioner notified now that he had taken over and assumed the control, management and maintenance of the graveyard in survey number 519 and the properties attached thereto, he notified the appointment of Manager of Waqf Properties, Sukkur with powers to manage and maintain the said graveyard, Waqf properties attached thereto and maintain the services and secure the performance of ceremonies to the said graveyard. It is asserted in the memo. Of petition that survey number 519-A is spread over 51438-8 square yards whereas the area of survey number 521 is 3905 square yards which are shown as graveyard-Waqi in the Extract of Property Register Card. Petitioner further averred that both the properties are in the possession and management of the Manager, Auqaf Property, Sukkur and were let out to about 177 tenants who were paying rent to the petitioner. Schedule "A" mentioning the names of such tenants and the amounts paid by them is appended to the memo. Of petition.
Grievance of the petitioner arose when all of a sudden he came to know that Government of Sindh, Housing, Town Planning, Local Government and Rural Development Department issued the impugned notification declaring both the survey numbers as Kachi Abadi in exercise of the powers conferred by clauses (2) and (3) of paragraph 3 of Martial Law Order No,
183. It is the case of the petitioner that this notification was issued without consulting him or his Department and even without the issuance of any notice or opportunity of hearing to any of them. This action, according to the petitioner, is illegal, without jurisdiction and mala fide as both the properties were neither under the encroachment of any person nor occupied 'unauthorized by anybody and as such the same could not be declared as Katchi Abadis. Besides assumption of powers under M.L.O. 183 by the Government was termed as illegal and without lawful authority as the impugned notification was issued on 29-9-1987 when the Sindh Katchi Abadis Act II 1987 was in force.
3. Petition was admitted to regular hearing to consider the point whether the property in question taken over by the petitioner by notification dated 16-8-1960 could not be declared as Katchi Abadi in view of the provision contained in section 19 of the Sindh Katchi Abadis Ordinance, 1986. Pursuant to the notice, Mr. Abdul Sattar Chohan and Mr. Zawar Hussain Jafri, Additional Advocate-General made appearance on behalf of respondents but neither parawise comments nor any objections/counter-affidavits were filed to the petition which remained pending for a pretty long time.
4. We have heard learned counsel for the parties and gone through the material placed on record.
Before proceeding with the contentions, raised, it seems proper to trace the history of the law governing the administration of Waqf properties. In the first instance West Pakistan Waqf Properties Ordinance, 1959 was promulgated by the Governor of West Pakistan with effect from 15th April, 1959 with a view to consolidate and amend the law relating to management of Waif properties in the Province of West Pakistan. Clause (d) of section 2 of this Ordinance defines "Waqf property" to mean property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants. Under section 3 Government was required to appoint an Administrator of Waqfs fOr the Province of West Pakistan, Section 6 of the Ordinance empowered the Administrator to take over and assume the administration, control, management and maintenance of a Waqf property, notwithstanding anything in section 22 of the Religious Endowments Act, 1863. Section 7 of the Ordinance provides for a petition to the District Court against such notification by any person claiming any interest in any Waqf property within thirty days of publication of such notification. Appeal from the decision of the District Court to the High Court of West Pakistan was provided under section 8. Bar against issuance of temporary injunction or order restraining the Administrator from taking over or assuming the administration, control, management and maintenance of property in respect of which a notification had been issued is contained against the District Court or the High Court pending the disposal of a petition or an appeal. Vide section 10 of the Ordinance finality is attached to the decision of the District Court or the High Court as the case may be. Under section 11, Administrator was required to prepare scheme for administration of Waqf property having regard to the wishes of the person dedicating as could be ascertained and to which effect could be reasonably given. Under section 14 he was required to maintain accounts of income and expenditure of such properties. Bar of jurisdiction was provided against Civil or Revenue Court to question the legality of anything done under this Ordinance by or at the instance of the Administrator. Section 16 of the Ordinance manifests overriding effect of the special law and stipulates as under: "16. Every order made and every action taken under this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any document, decree or order of any Court, deed, enactment or any instrument having effect by virtue of any such enactment other than this Ordinance."
5. By section 19 Government was authorised to frame rules for the purpose of carrying into effect the provisions of this Ordinance. Section 20 relates to repeal of certain laws and savings clause in respect of actions taken, everything done, obligation, liability, penalty or punishment incurred, inquiry or proceedings commenced etc. By Ordinance X of 1960 certain amendments were introduced in Ordinance XXI of 1959 modifying nomenclature of Administrator as Chief Administrator of Auqaf and substitute an Administrator or Administrators for the words "a Deputy or Deputies" for various areas. By a newly-inserted section 14-A rents and lease moneys in respect of Waqf property could be recovered as arrears of land revenue. By section 14-B, Chief Administrator was empowered to call for returns etc. Relating to such Waqf property and to issue instructions and directions in respect of such property. Section 18 of the Ordinance was renumbered as section 18(1) and subsection (2) as introduced providing for punishment of fine extending up to five hundred rupees with further fine extending to fifty rupees for every day for disobedience or failure to comply with any requisition, instruction or direction issued by the Chief Administrator.
6. In exercise of the powers conferred on Governor by section 19 of the Ordinance 1959, West Pakistan Waqf Properties (Administration) Rules, 1960 were made and notified in the official Gazette. By West Pakistan Waqf Properties Ordinance XXVIII of 1961, Ordinance 1959 and other enactments were repealed saving the actions already taken, liabilities and penalties incurred etc. This Ordinance more or less contains the same provisions as amended earlier. Section 6 of the earlier Ordinance remained intact but an Explanation was added which is as follows: "Explanation.---For the purposes of this section, 'control' and 'management' include control over the performance and management of religious, spiritual, cultural and other services and ceremonies at or in a Waqf property."
7. It may be pertinent to observe that section 16 of the Ordinance, 1959 provides for overriding effect of every order made and every action taken under this Ordinance irrespective of anything inconsistent therewith contained in any document, decree or order of any Court, deed, enactment or any instrument having effect by virtue of any such enactment other than this Ordinance. Plain reading of this provision makes it abundantly clear that in the event of any inconsistency between an order passed under this Ordinance and any other order or enactment to the contrary under any other law, order passed and action taken under this Ordinance shall prevail and have overriding effect notwithstanding anything to the contrary.
8. Adverting to the notification impugned in this petition it may be observed that said notification is dated 29th September, 1987 purportedly issued by the Government of Sindh under clauses (2) and
(3) of Rule 3 of M.L.O. 183 declaring among others survey numbers 519-A and 521 as Katchi Abadi.
This notification proceeds on the assumption that the land was occupied unauthorized since before 1st January, 1978 and that the said Revenue land had been transferred to Sukkur Municipal Corporation, Sukkur by the Board of Revenue under its No, LU-11/1-18-81/2484-CII, dated 2-7-1987 and that the Government of Sindh was satisfied that the said area should be declared as Katchi Abadi. The notification appears to have been issued upon the recommendation of the Sukkur Municipal Corporation vide its resolutions dated 18-8-1983, 14-5-1985 and 27-10-1985 under clause
(1) of para. (3) of M.L.O. 183 to the Government for declaration of the areas in the Schedule as Katchi Abadis,
9. We have gone through the provisions of Martial Law Order No, 183 whereby M.L.O. 110 was reconstituted and titled as "Sindh Katchi Abadis (Regularization and Development) Order, 1982 notified in the Extraordinary Gazette, dated 4th November, 1982. No doubt this M.L.O. 'authorised the Government to declare any area specified in the Resolution by a Metropolitan Corporation, a Corporation, Municipal Committee or Town Committee by a notification in the official Gazette which was partially or wholly occupied unauthorizedly for residential purposes before the first day of January, 1978 and continues to be a Katchi Abadi, fact of the matter is that this M.L.O. Was repealed by virtue of M.L.O. No, 107 which was promulgated along with the Proclamation of Withdrawal of Martial Law on December 29, 1985. There may be no difficulty in taking the view that on the date of Notification, Government of Sindh could not assume to itself the jurisdiction in law which had ceased to exist with the lifting of the Martial Law and revival of the Constitution Order.
Assuming for the sake of argument that this notification was issued under the provisions of Sindh Katchi Abadis Act, 1987 which contains more or less corresponding provisions except with regard to cut-off date for regularization of unauthorised occupation of public property before 23rd day of March, 1985, said notification cannot be upheld and sustained in supersession of the notifications issued by the petitioner as far back as 1960 and 1961 respectively in exercise of the authority vested in him. Even otherwise for declaring an areas as Katchi Abadi Government is duty-bound to hold an inquiry with regard to the unauthorised occupation of the area by respective persons before the target date which does not appear to have been conducted in the case in hand as respondents have not placed any material on the record of the petition. Regrettably they have even not bothered to submit parawise comments to the petition despite the pendency of the petition for nearly 9 years. We have already referred to the overriding effect of section 16 of the Ordinance, 1959 which cannot be ignored and overlooked. In the absence of any material and convincing evidence it is difficult to sustain that the notification issued by the Government of Sindh was valid and issued with lawful authority.
10. For the aforesaid facts and reasons this petition must succeed and is hereby allowed with a declaration that the Properties bearing Nos.519-A and 521, Ward D', Sukkur are declared to be Waqf property belonging to the petitioner and the notification dated 29-9-1987 issued by respondents Nos. 1 and 2 declared to have been issued without any lawful authority and of no legal effect.
Consequently respondents are restrained from interfering with the right, interest and claim of the petitioner over such property and from interfering with its possession.