' WAJIHUDDIN AHMED, J.---It is an order passed on 26-10-1994 by a Division Bench of the High Court of Sindh in Constitution Petition No,D-1116 of 1991, which gives rise to these two appeals.
2. Successive Waqf-alal-Aulad were created by one Haji Karim Dino, the first of which was created in 1916, the second in 1920 and the third in 1923. It is largely the first of these Waqfs which concerns us here. In course of time, MLR 64 of 1959 intervened and the successors, at the time of the said Haji Karim Dino, submitted declarations thereunder, one of such successors being a son, Abdul Nabi.
The lands, which formed the subject-matter of these declarations, were apparently the Waqf as well as private agricultural holdings. The Deputy Land Commissioner/Deputy Commissioner passed orders pertaining to such declarations against which some of the declarants preferred appeal (s) before the Land Commissioner who coming to the conclusion, that the line of the Waqif (from one of his two wives), for whose benefit the above Waqf of 1916 was created, having ceased, the lands comprising in that waqf reverted to charitable and other religious purposes and thus no longer remained available for appropriation by the remaining line (from the other wife) of descendants of the waqf. The West Pakistan Waqf Properties Ordinance, 1959, in the meantime stood promulgated. The Chief Administrator of Auqaf, pursuant section 6 of such Ordinance, issued a notification and took over and assumed the administrative control, management and maintenance of the Waqf property. The affectees preferred a petition in terms of section 7 of the Waqf Ordinance before the District Judge, who found against them and upheld the notification. An appeal was taken to the High Court of Sindh under section 8 of the Ordinance but that also failed, giving rise to Letters Patent Appeal No,114 of 1965 before a Division Bench of the same Court. Such appeal succeeding, the matter was brought to this Court by the Chief Administrator in Civil Appeal No,13-K of 1975, which was decided on 5-2-1989 and the judgment is reported as The Chief Administrator, Auqaf v. Abdul Nabi through his Legal Heirs and others (PLD 1989 SC 299). The facts pertaining to the Waqf and, allied questions are elaborately detailed and discussed in such report, as also in the impugned judgment above-referred and need not be repeated. The appeal before the Supreme Court by the Chief Administrator failing, the beneficiaries became entitled to the usufruct of the Waqf property. However, since, according to the descedents of Haji Karim Dino aforesaid, due possession was not made over and necessary accounts were not rendered, tenants and trespassers having also been inducted into the lands, the aforesaid Constitution Petition, giving rise to the impugned order, was filed. Meanwhile, the West Pakistan Waqf Properties Ordinance, 1959, was followed by another Ordinance bearing the same title in 1961, itself being supplanted by the Auqaf (Federal Control) Act, 1976, which, in turn was repealed by the Sindh Waqf Properties Ordinance, 1979, much the same effect being achieved by similar Ordinances in other Provinces. Comprehensive savings have been visualised by each succeeding statute, ensuring thereby the due continuity. Reverting, the following prayers were made in the Constitution Petition before the learned Judges of the Division Bench in the High Court:--
(i) Direct and order respondents to restore physical vacant possession of the lands and other properties mentioned in Schedule stated in the Notification dated 30-4-1960.
(ii) Direct and order respondents to render true and full accounts of all earnings from the properties taken over by respondent No,2 vide Notification dated 30-4-1960 from the date till the actual possession is handed over to the petitioners and pay the same to the petitioners.
(iii) Prohibit and restrain respondent No,5 from taking any action against the petitioners under MLR 115 of 1972 and/or under the Rules or Regulations framed thereunder in respect of the agricultural lands in question.
(iv) Respondents to pay costs of this petition.
(v) Any other relief which this Hon'ble Court may deem fit under the circumstances of this case to grant."
3. The petition was contested by the Government of Sindh, the Auqaf Department and the purported Haris, respondents Nos.6 11, who claimed portions of the land in their own rights under the Land Reform Laws. It may be noted here that such respondents Nos.6 to 11 were inducted before the High Court not initially but on their own approach. The High Court allowed prayers Nos.(i) and
(ii) above but as regards prayer (iii) observed as under:- ' "As regards the reliefs sought to the extent that respondent No,5 be prohibited and restrained from taking any action against the petitioners, we are of, the view that the said point can be urged before the respondent No,5 subject to the rights of the petitioners as available under the Land Reforms."
' Regarding the restoration of possession and the objections raised relative thereto, the High Court in the impugned order recorded the following observations:-- ' "There is no cavil about the legal provisions. However, the facts as discussed in preceding paragraphs would show that in the present case the petition under section 7 of the Ordinance was not for restoration of possession but for declaration under section 7 of the Ordinance as this is the only relief that could have been sought in the present case. A reference may be, made to various documents placed on record. The counter-affidavit of Ghulam Sarwar Soomro the District Manager, Larkana and Jacobabad shows that in pursuance of the judgment of the Hon'ble Supreme Court the Auqaf Department had cancelled the lease of all the lessees in occupation of the assumed land vide order, dated 4-3-1990 and such orders were served on them and their signatures were obtained. This is stated in para.7 of the counter-affidavit. In para. 8 it is stated that the tenancy of the tenants over shops and houses were also cancelled and tenants were directed to restore the property to present petitioner No,3 and such signatures. Of the tenants were also obtained on similar orders. In Paragraph 12 it is stated that the Auqaf Department had resumed the possession of shops/houses with sitting tenants to its previous management. However, there is nothing placed on record to support the above contention of the Manager. Such letters have also been placed on record in support of the above contention which were issued after the judgment of the Hon'ble Supreme Court. Mr. Muhammad Ali Sayeed, the learned counsel for petitioners has argued that of course paper work is done by the official respondents but relevant physical possession is not handed over to the petitioners; and that official respondents are either conniving with the persons in occupation or are afraid of them. He has pressed that the direction be issued to the official respondents to comply with the judgment of the Hon'ble Supreme Court. However, it is admitted by the petitioners that they have received the possession of 1100 acres of agricultural land but still 2100 acres are with the unauthorised occupants or lessees and tenants inducted by the Auqaf Department and it is the obligation cast upon the Auqaf Department to get them removed. He has further pointed out that no doubt the matter had been initiated before the District Judge, Jacobabad but this was not a matter where a suit is filed for any remedy but this is a matter where a petition under a special enactment is moved seeking for a certain declaration which ultimately is granted at the stage of LPA and not in the lower Courts. He has further submitted that the petitioners have undergone rigour of litigation and deprivation of their properties and rights for last 34 years during which period the said Abdul Nabi also expired and if the matter is presented or transmitted to the lower Court as provided under Order XLV, rule 15, C.P.C. The matter will again take considerable time in getting it finlaised through all appellate and revisional forum and in the course a number of other persons lawfully entitled to the property may not see the light of the day.
' In view of the above discussion, we are of the view that this Court in such circumstances can give such directions."
' As to the rights and entitlements of the respondents Nos.6 to 11, point No, (iii) was framed by the learned Judges and the under-noted discussion and determination occurred:-- ' "Mr. Mushtaq Memon, Advocate has vehemently argued that the respondents Nos.6 to 11 would be entitled to grant of this land in their own right being sitting tenants/lessees of the land which is in their possession. We are afraid that this submission at this stage would not be acceptable as the right of a tenant or occupant takes place only when the land is resumed under Land Reforms and put to disposal as under the Regulation. In the present case it has not been brought on record as to on which date the Land Commission Authorities had directed the lands to be put to disposal by way of auction or by way of any other means nor the record shows as to whether any order is passed giving the particulars of the land resumed by the Land Reforms Authorities. Mr. Mushtaq Memon, Advocate has referred to the case-law on the point that previous proceedings would automatically take effect and be continued where a subsequent order is passed setting aside an intervening act or order. As far as legal aspect is concerned, there is no dispute about it. However, the point involved in the present matter is that of factual aspect as to what was the land resumed and when the order was passed directing their disposal. However, as already observed, the present case involves the filing of fresh declaration forms and exercise of option of retention by the petitioner, if so applicable under the Regulation. This matter is to be taken up at appropriate stage.
' In view of above discussion, we are of the view that the third point regarding the rights of respondents Nos.6 to 11 also stand answered."
4. Against the above conclusions and findings, the Harts as well as the Chief Adthinistrator of Auqaf preferred Civil Petitions for Leave to Appeal and was granted to consider the following questions:-- "(i) Whether the above Constitution Petition was competently filed: and
(ii) Whether in presence of the above revisional order, dated 7-11-1959 passed by the Chief Land Commissioner, the High Court was ' justified to allow the aforesaid Constitution Petition in the above terms."
' Simultaneously, upon the grant of leave, the order of the High Court to the extent of 1900 acres of agricultural land was stayed but subject to a deposit of Rs,3,00,000 (assessed for one year) by the purported Haris. Such deposit evidently, has been made with the Nazir of the High Court and should be lying invested, as per the leaving granting order.
5. Before us, Mr. Fakhr-ud-Din' G. Ebrahim, Senior Advocate Supreme Court, appearing for the Hairs, stated that under the successive dispensations of MLR 64, the Land Reforms Regulation MLR 115 of 1972 and the Land Reforms Act, 1977, the Hans have come to be vested with definite rights, which could not be taken away and the High Court should not have passed any orders in the Constitution Petition, which tended to cut across those rights, Mr. S.H. Fani, Advocate Supreme Court, appearing for the Chief Administrator of Auqaf, maintains that no new tenancies were created by the Chief Administrator following upon the notification and added that the element of trespassers moving into the lands, finding mention in the memo. Of appeal filed by the Chief Administrator, is no more than a slip. Mr. Fani further urged that whatever was taken over by the Chief Administrator has duly been passed on to the beneficiaries of the Waqf-alalAulad. As against this, Mr. Muhammad Ali Saeed, Advocate Supreme Court for the beneficiaries under the Waqf, has relied upon the Qazalbash Waqf v. The Chief Land Commissioner, Punjab (PLD 1990 SC 99), declaring that the land reforms legislations, the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977, to be precise, as regards their interaction with Waqf, etc., offended the Injunctions of Islam and with effect from March 23, 1990 such could no longer be enforced.
6. During the course of hearing, we have also been referred to Sardar Ali v. Muhammad Ali (PLD 1988 SC 287), where the effect of. Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360), declaring certain provisions of the N.-W.F.P. And the Punjab Pre-emption Acts together with MLR 115 of 1972, regarding rights of pre-emption vis-a-vis tenants and certain relations as also some other provisions, were declared as repugnant to 'the Injunctions of Islam, the decision taking effect on 31-7-1986, was considered. Sardar Ali's case was decided holding that the words in clause
(b) of Article 203-D, viz. "such law or provisions shall to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect", imply, in the context .That a "plaintiff who has obtained a decree from the trial Court or any higher forum before 31-7-1986 can defend the said decree in any forum where the said decree is being challenged notwithstanding the fact that the relevant law has ceased to have effect after the said date viz 31-7-1986". Correspondingly, "where no decree has been passed by the trial Court or any higher forum before 31-7-1986, no such decree can be passed thereafter by any Court or forum on the ground that the matter was instituted and pending in the Court before 31-7-1986".
7. As is further elaborated below, it would thus seem that where a law is declared to be repugnant to the Injunctions of Islam, such declaration does not totally efface all that has taken place before the declaration and manifestly saves a decree or order, which has already emerged in the field even though such may have remained subject to further proceedings in the way of appeal, etc. ' To much the same effect, pertaining to the impact of the Qazalbash Waqf case, in the Chief Land Commissioner v. Chief Administrator of Auqaf, Punjab (PLD 1998 SC 132). Disserting upon the implication as to repugnancy on the Land Reforms Regulation, 1972 and the Land Reforms Act, 1977, attention was reverted on the specific self-executory provision. Upon a close examination of law, it was there held that in order that such self-executory provisions come into play it was necessary that some order under the Land Reforms Laws was passed and emerged as a fact. This is no different than above postulated. In Chief Land Commissioner v. Atta Muhammad Bajwa (1991 SCM R 736 (747), however, this Court had earlier observed that a self-executory provision does not await the decision of any authority or Court for taking effect. It is only the interpretation, the exclusion or the limitations which can be decided upon by the Court and not the operation of law as such. A yet more direct precedent, touching MLR 64 of 1959, stands furnished by Chairman, FLC v. Akhtar Abbas (PLD 1989 SC 550). With specific reference to paragraphs 8 and 16 in MLR 64 a still broader proposition was spelled out in such case, as appears below:-- "18. It is not disputed by the learned counsel for the respondent that vesting of the excess land under paragraph 16 follows immediately on excess taking place in contravention of paragraph 8. It is not dependent on an adjudicatory order or an order identifying the land which is to be resumed.
This concession is in fact what is implied by paragraph 16 and with regard to the choice and surrender all that can be said is that they are the machinery provisions for giving effect to the prohibitions and the mandate of the law."
8. In the foregoing background, where it is conceded that the beneficiaries under the Waqf not only submitted declarations under MLR 64 of 1959 but also under the subsequent promulgations, namely, the Land Reforms Regulation, 1972 (MLR 115) and the Land Reforms Act, 1977 and what is more where orders relative thereto (e.g. Order dated 16-7-1959 passed by the Deputy Land Commissioner) seem to have been passed, it can hardly be doubted that rights of the parties have since come to be crystallized. Be it also noted that the LPA Bench of the Sindh High Court while deciding LPA No,115 of 1965 thought fit to forward a copy of its order to the Land Commission and besides the Deputy Land Commissioner has throughout figured as a respondent in these proceedings, though apparently not putting in appearance, as perhaps was respected of him. The implications are obvious. Entitlements ensuing upon the land reforms have never been omitted from consideration. At any event, the decision as regards the entitlement of the beneficiaries in the case of Chief Administrator of Auqaf v. Abdul Nabi (PLD 1989 SC 299) was rendered on 5-2-1989 and there was a time lag between such decision and the declaration reflected in the Qazalbash Waqf case, taking effect on March 23, 1990, manifesting that in such a space of time, the property had reverted to the beneficiaries, making the Land Reforms Laws duly applicable to the same before the Qazalbash Waqf case intervened. In these circumstances, the beneficiaries under the Waqf cannot claim anything more than that which they had already opted for in the declaration, duly submitted and if any proceeding be deemed to be pending pertaining to the aforesaid determination, which patently is the position prevailing, since the matter should in all fairness be considered pending before the Land Commissioner, such shall have to be confined to the options exercised and not to anything beyond. The observation of this Court in 'Abdul Nabi's case that nothing in such case should operate to prejudice the rights, if any, which may have accrued to respondent No,5 therein, Haji Abdul Majeed according to the law under para. 10 of the Land Reforms Regulations, -hall have to be viewed in this perspective.
9. Coming to the reliefs granted by the High Court, through the impugned order, such reliefs as well would remain confined to the lands and other properties, which the beneficiaries/original owners are found finally to be entitled to retain. In relation thereto, if they or any one of them still insists that any person was inducted on such lands or portions thereof, while the same stood taken over, they or any of them so affected would be free to require the Administrator pursuant to the High Court order for extension of reliefs in terms of sections 8 and 9 of the current legislation viz. The Sindh Waqf Properties Ordinance, 1979. As to the rest of the lands, continuing to bear impact of the Land Reforms Law, the relevant land reforms authorities would appropriately deal with the respective rights and entitlement agitated before them, such obviously including the rights of the purported Haris figuring, as appellants in C.A. 905 of 1995. These are our conclusions touching point (ii) in the order of grant of leave.
10. Correspondingly, account would retain to be rendered by the Chief Administrator, Auqaf to the benficiaries/the original owners of the holdings to the extent the beneficaries/owners are ultimately found entitled to retain the relevant holding but such, it is reiterated, would be confined to the ascertained and retained holdings alone and would not go beyond. As for the amount, lying deposited pursuant to the leave granting order, the Nazir of the High Court would keep the same invested and the cumulative figure would be disbursed, on due applications, by the High Court, after the final determination of the Land Reform Authorities, to the party found entitled to receive the same. We have refrained from deciding upon the maintainability of the Constitutional Petition as no useful purpose can be achieved therefrom at such an advanced stage in terms of time.
11. To the above extent, the impugned order is modified and the . Parties to bear their own costs.