' This Constitutional petition seeks order dated 12-6-1989 passed by the respondent No.1, whereby lease of Waqf property was approved in favour of the employees of the respondents Nos.1 and 2, to be declared illegal, void and of no legal consequence.
2. Precisely, relevant facts are that petitioner No.1 is a registered body and other petitioners are its members, who reside within the area of Rehmanpura near Wandat Colony, Lahore. It is asserted that there is a mosque which was used to be known as "Masjid Sirki Shah" within the area of Rehmanpura and presently it is known as "Jamya Hanfia Rizia Sadiq Ali Shah' wherewith there is a Khanqah of Sadiq Ali Shah alias Sirki Shah. It is claimed that in the year 1941 Hakoo son of Saffa dedicated his land measuring 14 Kanals, 17 Marlas in the name of above referred mosque vide Mutation No.31747 dated 16-4-1941. The above named mosque was reconstructed and a "Madrassa" for imparting religious education to the teenagers of the vicinity was also started in a portion of the mosque building. Respondents Nos.1 and 2 through a Notification No.SOP- 3(93)/Auqaf/62 dated 14-5-1979 took Over the administration, management and control of the Waqf land; attached with the mosque, in exercise of their powers under. Section 7 of the Punjab Waqf Properties Ordinance, 1.979. Respondent No.1 through another notification dated 20-5-1980 also took over the control of mosque Khanqah Sadiq Ali Shah and four shops, over an area of about 1 Kanal forming part of the Waqf property. The property subject of Waqf is situated in the heart of city of Lahore and is of a prime location, but respondent No.1 in connivance with his employees, in a most unscrupulous and outrageous manner appropriate the property to their own use, wider the garb and cover of lease deeds executed in favour of the other respondents for a period of 99 Mars at a ridiculous, inadequate rent of Re.1 per Marla per month, vide 'order bearing No.DPA(1)A/89 dated 12-6-1989, just to benefit their own employees through illegal and mala fide manner, treating 1 Marla equal to 272 sq. Ft. Whereas in the vicinity 1 Marla measures to 225 sq.Ft.
3. Respondents Nos.1 to, 6 have submitted their report and parawise comments, wherein they have themselves admitted that Waqfland measuring 14 Kanals and 7 Marlas seized to be agricultural in nature and has attained the urban character thus is building site. Respondents have attempted to justify division of the land in various plots for leasing it for 99 years to their own employees, in the following manner:- "That the land measuring 14 Kanals and 7 Marlas was previously being treated as an agriculture land and has been leased out. Keeping in view the benefits of the Waqf. It has been changed into residential purposes and thus it has been leased out to low paid employees with the prior approval, particularly to the employees who had rendered the service for new years as more. This the action of the D 1-2 in genuine according to the powers vested to them.
' That the Auqaf Department in order to save the land from wastage and enroachment drew a scheme for leasing out dividing into small plots and these plots were leased out to the employees of Auqaf Department and include Naib Qasid, Ulema, Khateebs and Madaraseen etc. This scheme was approved by the Government of the Punjab respondent No.1 the Chief Administrator of Auqaf under rule 7 of the West Pakistan Waqaf Properties (Administration) Rules, 1960.
' The Chief Administrator Auqaf respondent No.1 has been empowered to allow grant of lease for a longer period in the interest of Waqf of the same the land from the Wastage and encroachment and to further rehabilitate the hundreds employees of the Auqaf Department at the rate of one rupee per Marla."
4. Respondents were represented through their respective counsel, whose names have appeared in the daily cause list, but none of them has appeared to contest this petition. Learned counsel appearing on behalf of respondents Nos.1 and 2 namely, Aurangzeb Chaudhry, Advocate, was seen in the Court in the early hours of the day, but he also opted not to appear when the case was called for hearing. On account of his absence, case was kept in waiting and was taken up for the third time at 1-00 p.m. Which continued till close of Court hours, but he has not appeared to argue his case, thus all the respondents are proceeded against ex parte.
5. 1 have minutely examined the record including parawise comments of respondents Nos.1 to 6.
Their case appears to be that Auqaf Department had prepared a scheme in order to accommodate its petty employees who were getting meager salaries and since property in question, had lost its agricultural character, it in the best interest of the Waqf, was leased out, for residential purposes. According to them, the scheme in question was framed for the benefit of poor and low-paid employees of the Auqaf Department, which is one of the aims of the Waqf of the property in question.
6. Learned counsel appearing on behalf of the petitioners assertedly argued that lease of property for 99 years by the Auqaf Department to its own employees at a nominal lease money of Re.1 per Marla per month is not only fraudulent, unauthorized and without jurisdiction but is also an abuse of powers vested in the Chief Administrator of Auqaf. Learned counsel for the petitioners referred to different provisions of West Pakistan Waqf Properties (Administration) Rules, 1960 to urge that the Waqf Property could only be leased out through an open auction and at the best available market rate.
7. It is worth-mentioning that respondents who are statutory functionaries, were deputed to protect and preserve Waqf properties, themselves indulged in misappropriation of public properties through illegal and unwarranted means. It is strange that respondent No.1 is a lessor and himself is the lessee because while holding Waqf property he acts as its custodian and through the impugned order, he has transferred this property in his own favour, under the cover of lease for 99 years which is an open secret that it amounts to permanent transfer. The lease money is shamefully low and on this rate one cannot get land even in any corner of the world and it has been let out in the vicinity of thickly populated area abutting Ichra on the one side and Wandat Road on the other side, with Ferozepur Road on the face of it. Petitioners, who have an interest of offering prayers and getting their children educated on religious side for Madrassa in the Waqf property have rightly maintained the petition in hand.
8. There is no cavil about the proposition that Waqf properties vest in Almighty Allah and status of the Chief Administrator after assumption of those properties is not better than a Mutawalli, Manager or a Superintendent. He is not equipped or vested with ownership of the property, which continues to remain with Almighty Allah. Under section A 7 of the West Pakistan Waqf Properties Ordinance.
1979. The Chief Administration is authorized to take over and assume the administration, control, management and maintenance of Waqf properties and acts as an 'Ameen and he by no stretch' of imagination can convert those properties to his own assets. Rule 7 of the West Pakistan Waqf Properties (Administration) Rules, 1960, deals with lease of Waqf properties which has to be in writing and its period cannot exceed three years time and if the Chief Administrator grants lease beyond the period of three years, he has to justify his decision by giving reasons. Above all grant of lease has to be fair, transparent, justifiable on reasons and that too through anopen auction as provided in rule 7(1)(a)(iii). Powers vesting in respondent No.1 have not only been used arbitrarily, fancifully and capriciously, but he has also not shown any judiciousness, fairness or justness.
Respondents, to whom the Waqf property has been leased out, B cannot justify their claim solely on the ground that they are poor Qasids, Naib Qasids or other low-paid employees. They joined the service on the offered remuneration out of their own, volition and they in no manner can claim any right over a property which did not vest even in the department. There may be millions of other people whd are poorer as compared to the lessees who cannot even feed themselves even once in a day. The logic and reasonings gWen in the comments by the respondents have no legs to stand. In this manner the reasonings advanced by the respondents hardly go in the interest of the Waqf or Waqf property. Had there been any chance of waste of Waqf property, it should have been' leased out through an open auction, after giving a thorough public notice. It is painful to note that such attributions are being given to the office of respondent No.1 who is a caretaker of the properties standing in the name of Allah Almighty.
9. A reference to Hedaya by Charles Hamilton at page 335 shows that under an appropriation becoming valid and absolute, the sale or transfer of the thing appropriated is unlawful, because in the sayings of the Holy Prophet (PBUH):-- "Bestow the Actual Land Itself in charity, in such a manner that it shall no longer be saleable or inheritable".
' Thus the appropriation becomes absolute the moment it is made and is not capable of sale or transfer by any means. Similarly Digest of Mohammadan Law by Neil B.E. Baillie, 1957 Edition page 607, states "it is not lawful to let a Waqf except for the rent of similar property". It has also been opined "where Superintendent of Waqf lets the property to a Waqf at an inadequate rent, the lease is unlawful". This Court while dealing with the case of Muhammad Sadiq and 15 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and another (PLD 1972 Lah. 780) held that according to Muslim Jurists Waqf property is like the property or an orphan and its management cannot be allowed. It goes without saying that dedicator of the Waqf cannot take this property for the benefit of Chief Administrator or his employees.
10. For what has been discussed above. I am constrained to hold that order bearing No.DPA(1)-A/89 dated 12-6-1989 passed by respondent No.1 is absolutely illegal, void, mala fide, 'unauthorized, without jurisdiction, ultra vires of the act and hence is of no legalconsequence. This Constitutional petition consequently, succeeds and ID writ as prayed is issued with costs.