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First Appeal From Order No. 151 of 1964, decided on 3rd March 1966.
S. 96‑Representative suit‑Objection as to maintainability of suit as framed not taken before trial Court nor raised in memo. of appeal‑Not taken into consideration‑Civil Procedure Code (V of 1908), O. I, r. 8.
S. 7 and West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S. 7‑District Court acting under section‑Court of general civil jurisdiction and not a special tribunal.
Akhtar Ali v. Altaf‑ur‑Rahman P L D 1963 Lah. 390 distinguished.
Arts. 133 & 225‑Provision of Art. 133 prospective and not retrospective in operation‑Vires of law made before coming into force of Constitution, i.e., 8‑6‑62 Open to challenge in Courts on ground of having been enacted by in competent Legislature‑Enactment to be "existing law" under Art. 225 must be one made by competent Legislature‑Law or any part of it found ultra vires‑Cannot have protection of Art. 225.
Shukar Din v. Government of West Pakistan P L D 1965 Lah. 522 ref.
and West Pakistan Waqf Properties Ordinance (XXVIII of 1961) Ordinances intra vires‑Vires of Ordinances on basis of Funda mental Rights‑Cannot be challenged either under Constitution of Pakistan (1956) or Constitution of Pakistan (1962)‑Constitution of Pakistan (1956), Arts. S, 15 & 18‑Constitution of Pakistan (1962), Art. 6 (3) (ii) read with Fourth Sch., Part V, item 2.
Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid‑ud‑Daula and others P L D 1961 Lah. 993 ref.
, One of laws specified in Fourth Schedule to Constitution of Pakistan (1962)‑Immune from being attacked even if provision found to be in derogation of Fundamental Rights‑Constitution of Pakistan (1962), Art. 6(3)(ii).
Waqf Shrine of Data Ganj Bakhsh of Lahore‑History.
"Tahqeeqate Chishti" a Book of History, p. 149 ref.
Waqf‑Purpose for which created must be one recognised by Muhammadan Law as religious, pious or charitable‑Upkeep and maintenance of khanqah and its allied institutions‑One of such purposes.
Muhammad Kazim v. Syed Abid 1361 C 417 ref.
Presumption of truth does not attach to entries in register of mutations.
" Dargah"‑Includes group of buildings of which tomb forms nucleus.
S. 115‑Estoppel‑"Repre sentatve" ‑ Includes not only person to whom representation made directly and immediately but also person to whose notice representation, though not made, was intended to come.
Monir's Evidence Act, 4th Edn., p. 774 ref.
‑Waqf‑Word "mujawir"‑Meaning Status different from that of Mutawalli or Sajjada Nashin Mujawarship cannot be claimed as of right nor subject to inheritance.
Mahomed Oosman v. Essak Salemahomed Vanjara I L R 1938 Born. 184 ref.
Breaches of, however numerous or extending to long period‑Cannot put end to trust.
Muhammad Said and others v. Mst. Sakina Begum and others A I R 1935 Lah. 626; Ch. Muhammad Afzal and others v. Ch. Din Muhammad and others A I R 1947 Lah. 117 and Beli Ram Brothers v. Ch. Muhammad Afzal and others A I R 1948 P C 168 ref.
‑Endowment‑Endowed property Subject to control of ruling powers‑Not subject to inheritance.
Macnaghten, Case No. IX, p. 343.
S. 6‑Super‑ structures of houses and shops constructed by persons with their own money on waqf land‑Belong to such persons.
Waqf‑Offerings made at shrines Waqf‑West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S. 2 (d), Explanation 4.
S. 6‑Religious practice or performance‑Powers of Administrator to control, extends to regulating performance of ceremonies or practices‑Particular persons cannot claim exclusive privilege of performing such ceremonies.
Sh. Inayat Ullah and others v. M. A. Khan and others P L D 1964 S C 126 distinguished.
K. E. Chauhan and Qazi Muhammad Ashraf for Appellants.
Muhammad Fazl‑i‑Ghani Khan and Dilawar Mahmood for Respondent.
Note: ‑ K. E. Chauhan not present on 16‑12‑1964, 17‑12‑1964, 18‑12‑1964, 21‑12‑1964 and 22‑12‑1964.
Dates of hearing: 30th November to 4th December, 7th to
15th to 18th, 21st and 22nd December 1964 and 15th 1965.
.‑This judgment will dispose of forty‑five appeals filed by the Chief Administrator of Waqfs, West Pakistan, and forty‑five appeals filed by the opposite‑parties who, in their claim as Mujawiran of the celebrated shrine of Hazrat Data Ganj Bakhsh Sahib of Lahore, contested a Notification (No. 3 (1)‑Aukaf‑60, dated the 11th of January 1960), issued by the Chief Administrator of Waqfs, West Pakistan, in exercise of his powers under section 6 of the West Pakistan Waqf Properties Ordinance (XXI of 1959) (hereinafter referred to as the Ordinance), whereby he took over and assumed the administration, control, management and the maintenance of the aforesaid shrine and the properties attached to it as Waqf properties.
2. The aforesaid Mujawiran in different sets made forty‑five petitions, which are numbered serially with names of the set of applicants and particulars of properties in each petition, in the judgment of the learned District Judge who heard and decided the petitions. In accordance with the wishes of the parties, the learned District Judge by his order dated the 11th of July, 1961, consolidated all these petitions and evidence was recorded in petition No. 15 (Haji Ghulam Rasul and others v. The Administrator of Waqfs, Lahore), which was filed by Haji Ghulam Rasul, Fateh Ali alias Fateh Din and Muhammad Siddique individually with all the Mujawiran added as co‑petitioners, and it was stated in paragraph 1 of the petition that all the Mujawiran (the co petitioners) mentioned at No. 4 in the list of the petitioners in the heading of the petition had authorised the other three petitioners by a Mukhtarnama to file the petition for and on their behalf. A prayer was added in the same paragraph to allow the petitioners to institute, continue and pursue the proceedings in a representative character. This petition sought all the various relief s that were being claimed by the Mujawiran as a body, impugning the notifications issued by the Government, whereby the disputed properties were taken over by it as Waqf properties and which were listed in the Schedule attached to those notifications. These properties are comprehensively detailed in the judgment under appeal and it is not necessary to re‑describe them here except to state that the properties, which consist of lands, buildings and superstructures on some of those lands are situated in three different villages, namely, Lahore Khas, Shish Mahal and Qatarband in the District of Lahore and included the shrine (grave) of Hazrat Data Ganj Bakhsh Sahib and the attached enclosures and buildings and also income from boxes placed at the shrine of Hazrat Data Sahib and offerings and subscriptions made to the shrine.
3. In the petitions, other than the one filed in a representa tive capacity, mentioned above, filed by the Mujawiran individually, the petitioners claimed that the properties covered by their respective petitions and which consisted mainly of houses and shops or vacant sites, belonged to them in their own right, having been constructed at their own expense and out of their own earnings. They were thus private properties. The basis of the claim of the petitioners in these petitions was enlarged by the submission that even if these houses and shops in dispute be considered to have been constructed out of the income derived by them or by their ancestors as Mujawirs of the shrine, these must be held to be their private properties as the impugned Ordinances cannot have a retrospective operation to bring into the Waqf pool properties which were constructed by the Mujawiran even out of the funds which they may have obtained from the income of the shrine before the enforcement of the Ordinances.
4. One of the petitions (No. 37 of 1964) filed by Didar Bakhsh, may be separately mentioned as it related to the claim of a very small item, namely, an electric fan (DC Current‑English make) which had been seized by the Administrator. Didar Bakhsh alleged that he had purchased it and installed it at his own expense. The learned District Judge has rejected this claim. Nonetheless, an appeal has been filed against Didar Bakhsh also (Appeal No. F. A. O. 67 of 1964) in this Court. The learned counsel for the Chief Administrator of Waqf has stated that this appeal was filed under a misconception and that the claim of Didar Bakhsh for the electric fan in dispute had been conceded. On this statement we had dismissed this appeal by our order dated the 30th of November 1964.
5. The grounds of attack made, against the action of the Chief Administrator of Waqfs, as set out in the representative Petition No. 15 (Haji Ghulam Rasul and others v. The Administrator of Waqfs, Lahore), covered quite a wide range, both on law and facts. In substance, the vires of Ordinance No. XXI of 1959 and Ordinance No. XXVIII of 1961, which replaced the former on the 23rd October 1961, with retrospective effect as from the 7th of April 1959, and under which the properties in dispute were taken over, was challenged. On facts it was alleged, inter alia, that the properties which had been taken over were the private properties of the petitioners and were wrongly treated as Wakf. According to the revenue history of the Khasra Numbers in dispute, they were recorded in 1868 in the ownership of "Mujawiran Hazrat Data Ganj Bakhsh Sahib" and in the occupation column they were shown as "Maqbooza Malikan". The entry was changed in 1891‑92 in the proprietary column when "Durgah Hazrat Data Ganj Bakhsh Sahib" was recorded as the owner for the first time but this according to the Mujawiran petitioners was merely a nominal change made at the instance of some of the then Mujawiran who made a statement to the Revenue Officer to that effect merely to maintain the solidarity of the Mujawirs, without intending any permanent dedication of the properties to the shrine of Hazrat Data Ganj Bakhsh Sahib. It was alleged that in any case, in spite of the change in the name of the owners in the proprietary column from "Mujawiran" to "Durgah", the right to use, occupy, possess, hold, and maintain the properties was neither given up nor was ever intended to be given up. The right to hold the ceremonies in the Durgah which had been continuously performed by them and their ancestors and the right of burial in the graveyard of the shrine were particularly stressed and also the right to retain the offerings made in the boxes at the shrine, including the sum of Rs. 12,561/8 and some ornaments which were recovered by the Auqaf authorities from the box at the shrine at the time of taking over the properties. The merits of the claims of the petitioners will have to be examined in all their details but it will be useful to set out here the issues that were framed by the learned District Judge on the pleadings of the parties which adequately reflect the points of controversy between them. These are:‑
(1) What are the properties which have been taken over by the respondent under the impugned notification
(2) Whether the petitioners are the owners of or entitled to the properties in dispute
(3) Are the petitioners estopped by the statement referred to in para. 4 (if) of the petition What is its scope or effect
(4) What has been the user of the properties, which are subject‑matter of the above statement and what is its effect
(5) Whether the petitioners are the descendants of Rai Raju If so, what is its effect
(6) Whether the constructions in dispute were built by and for the petitioners If so, what is its effect
(7) Whether this Court has jurisdiction to examine the validity of Ordinance XXI of 1959, promulgated by the Governor of West Pakistan
(8) If Issue No. 7 is decided in the affirmative, then whether the Ordinance or any of its parts are invalid
(9) What rights the petitioners have in all or any of the properties in dispute, despite the facts of their having been taken over
(10) Whether the petitioners have the right of burial in any of the disputed properties and the right to perform spiritual functions If so, what are those functions
(11) Whether taking over of Rs. 12,561‑8 and ornaments stated in para. 4 (XVII) was lawful and are these items wakf property and do they fall under the notification dated 11th January 1960
(12) Relief.
6. It would be useful to note here the findings of the learned District Judge on all these issues. On issue No. 1 the learned District Judge has held that the properties taken over by the Chief Administrator of Wakfs on the 11th of January 1960, as contained in the list Exh. R. W. 2/1 prepared by Mr. Abdul Waheed, tallied with the list of properties detailed in the Schedule annexed to the impugned notification. Mr. Abdul Waheed, who was a Magistrate of the 1st Class and who was also appointed Manager of Durbar Hazrat Data Ganj Bakhsh Sahib, appeared as a witness before the learned District Judge and he stated that the properties given in the list prepared by him were in accord with the notification of the acquisition dated the 11th of January 1960. It appears that there was no serious controversy raised by the petitioners as to what properties were taken over by the Auqaf Department under the notification except in regard to Khasra Nos. 3458; 3459 and 3481, situated in village Shish Mahal, which were mentioned in the list Exh. R. W. 2/1, but were not included in the Schedule to the notification. The learned District Judge has found that the list Exh. R. W. 2/1 mentioned 2458 and 2459 possibly due to an error, as the Schedule annexed to the notification mentions Khasra Nos. as 3458 and 3459 and which had admittedly been taken over.. Similarly, 3481 mentioned in the list was a mistake for 2481. The notification did not mention the amount 'of cash and ornaments which were also admittedly taken over by the Auqaf Department, while the Mujawirs claimed that the cash and the ornaments were their private properties and could not be taken over, it is not disputed that they were in fact taken over. These articles were the subject -matter of a separate issue No. 11, and the finding of the learned District Judge on this issue in his own language is as follows :‑
"I hold that the amount of Rs. 12,561‑8‑0 taken into possession by the respondent, Chief Administrator of Auqaf, from the safe kept at the shrine of Hazrat Data Ganj Bakhsh Sahib at the time of its taking over is Waqf property and not the personal property of the Mujawirs."
In this finding there is no specific reference to the ornaments which were included in the issue.
7. On issue No. 3 the learned District Judge has held that the petitioners are estopped from going back on the statement made by their predecessors‑in‑interest referred to in paragraph 4(2) of the petition and could not plead that the properties in dispute except the buildings and superstructures, which were found to have been constructed by them or by their ancestors at their own expense, were not Wakf properties.
8. Issues Nos. 2, 4 and 6 were disposed of together in a lengthy discussion. Under issue No. 2 the petitioners were held not to be the owners of the properties in dispute which had always belonged to Durgah Data Sahib. On issue No. 4 there is no express finding but the general trend of the discussion points out that the learned District Judge accepted the position that the property has had its user throughout as Wakf property. On issue No. 6 the claim of each set of the petitioners in the various petitions for their claims to the buildings and superstructures, which ‑were. in use as residences and shops has been fully discussed by reference to evidence produced in each case and the result achieved is : "I hold that the petitioners are not the owners of the properties in dispute except that the buildings or houses (except the shrine itself and its appurtinents) were constructed by them out of their private income and they are entitled to them."
9. On issue No. 7, which was a legal issue, pertaining to the question whether the Court had the jurisdiction to examine the validity of the impugned Ordinances, the learned District Judge has referred to the conflict of judicial decisions on the point, but accepting the view as adopted in the Full Bench ruling of this Court Akhtar Ali v. Altafur Rahman (P L D A963 Lah. 390) he has formed the opinion that being a special Tribunal and being a creature of the Waqf Properties Ordinance he had no jurisdiction to examine the validity of the Ordinance. In view of that finding on issue No. 7, the decision on issue No. 8, i.e., whether the impugned Ordinance was invalid, wholly or in any of its parts, became redundant. On the question covered by issue No. 5, whether the petitioners were the descendants of Rai Raju, the learned District Judge held that the petitioners were the descendants of Sheikh Hindi alias Rai Raju but that did not give them any title to the properties in dispute which were Waqf properties. On issues Nos. 9 and 10, as to what rights the petitioners had in any of the properties in dispute, despite the fact of their having been taken over, the learned District Judge came to the conclusion that they had no right whatsoever. In regard to the claim for the right of burial, it was held that the Mujawirs did not have an exclusive right of burial in the compound of the shrine but even if such a right is conceded, there is little or no room left for burial in the compound of the shrine and that the Mujawirs shall have to be buried elsewhere. As regards the right to perform the spiritual and other religious functions, covered by issue No. 10, the learned District Judge held that by virtue of section 6 of the West Pakistan Waqf Properties Ordinance, 1961, the Administrator of Auqaf was competent to nominate anybody to perform the spiritual and religious functions at the shrine and that the petitioners had no such exclusive right.
10. The issue raised and the findings of the learned District Judge were subjected to a very elaborate discussion by the learned counsel for the parties on different aspects of the case. The arguments addressed at the Bar would need a very close examination and a beginning may be made with the disposal of a preliminary objection that was raised by the learned counsel for the Chief Administrator of Waqfs on the basis that Petition No. 15 (Haji Ghulam Rasul and others v. Administrator. of Waqfs), already mentioned above, which was filed by Haji Ghulam Rasul, Fateh Ali and Muhammad Siddique petitioners in a representative capacity on behalf of all the Mujawirs, is liable to be dismissed on the short ground that it was not sought to be pursued in the manner of a representative suit, as required by rule 8 of Order I of the Civil Procedure Code. This provision is as follows: --‑
"(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend any such suit on behalf of or for the benefit of all persons so interested, but the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub‑rule (1) may apply to the Court to be made a party to such suit."
It was pointed out by the learned counsel by reference to the statement of Mian Muhammad Amin (P. W. 21) on record that there were 375 Mujawirs in all. Some of them were minors and some others are females and also that the body of Mujawirs is a fluctuating one and that even a newly, born baby in that body takes a share on its birth. Further that any one of the Mujawirs, who does not reside in Lahore, ceases to receive his share and it is not shown how many of the present Mujawirs were outside Lahore. With reference to the minors the objection stated was that it was not disclosed as to who amongst the Mujawirs were minors and the requisite proceedings with regard to them under Order XXXII of the Code of Civil Procedure were not complied with inasmuch as they were not represented by their next friends. It was urged that the permission of the Court was not sought by the three petitioners, Haji Ghulam Rasul, Fateh Ali and Muhammad Siddique in Petition No. 15, to pursue the case in a representative capacity, nor was the permission given and the Mujawirs concerned were not notified in terms of Order I, rule 8 of the C. P. Code. It appears that in the written statement filed by the respondent (Administrator of Waqfs) no objection was taken to, the frame of the suit on the point of minority of any of the Mujawir petitioners and although the representative capacity of Haji Ghulam Rasul, Fateh Ali and Muhammad Siddique was challenged to sue on behalf of the others, the objection was not pressed, as no issue was framed on the point; nor does it appear to have been argued before the learned District Judge, as there is no reference to it in the judgment under appeal. The objection is not even taken in the appeals filed, on behalf of the Chief Administrator of Wakfs and these factors do certainly tend to preclude it from consideration by us. Apart from this, the; record shows that in Petition No. 15, while the three petitioners were named, the others of the general body of Mujawiran were added as co‑petitioners and the latter, who numbered 354, had executed a general power of attorney in favour of Haji Ghulam Rasul, Fateh Ali and Muhammad Siddique to pursue the petition on their behalf also as their duly appointed attorneys. This Mukhtarnama, which is duly attested by a Notary Public, is on the file of Petition No. 15. The factual position, therefore, is that the case as instituted was one on behalf of 357. Mujawirs, three of whom, who were named in the petition, were acting on their own behalf and as attorneys for the remainder. The Mujawirs, who were interested to defend their own separate title to the buildings and structure which they had allegedly put on parts of the disputed sites had brought their own petitions independently, in which essentially they claim their own rights, urging at the same time in those petitions that the entire property which was taken over by the Chief Administrator of Wakfs was not Wakf property but belonged to the Mujawirs as a community in their own right.
11. In dealing with the issues that were struck in the case, it is not necessary to adhere in this judgment to the order in which they were framed on the sequence in which they have been decided by the learned District Judge. It seems advisable first to deal with the legal issues which were raised as to the validity of the impugned Ordinances and the jurisdiction of the District Judge to determine their validity as covered by issues Nos. 7 and 8. The learned District Judge has noted the contentions of the parties for and against the validity of impugned Ordinance but has abstained from giving his own decision in view of his conclusion reached by reference to extensive quotations from a Full' Bench Judgment of this Court Akhtar ‑Ali Parvez v. Altafur Rahman that, to use his own words, in view of the above observations of my Lord the Chief Justice, I being the Special Tribunal, a creature of the Waqf Properties Ordinance XXI of 1959, have no, jurisdiction to examine the validity of the said Ordinance. The observations of the learned Chief Justice, referred to, are contained in the above‑noted case which was one under the West Pakistan Urban Rent Restriction Ordinance, 1959, where a point was raised with regard to the competency of the Rent Controller as a Special Tribunal to decide the matter of his own jurisdiction to deal with the question, i.e., whether when an objection is taken to his jurisdiction he should postpone the hearing of the matter until he has decided the question of jurisdiction or he should proceed with the matter without deciding it. It would be helpful to reproduce the relevant passage dealing with this matter :‑‑
"An objection to the jurisdiction of a Tribunal may take one of the following general forms (1) that the law under which the Tribunal is created is defective or invalid; . . If a plea falling in the first (this) category is raised before a Special Tribunal, the answer of the Special Tribunal, which is a creature of the special law and is constituted or appointed under that law, must be simply and shortly that these matters are not for the Special Tribunal to decide. . . If, for example, a Rent Controller is told by a party before him that the West Pakistan Urban Rent Restriction Ordinance is invalid, he ought not, on that ground, adjourn the proceedings in that case to her elaborate arguments on some future date. Were he to do so, the logical procedure for him would be not only to adjourn that case but to adjourn all cases, and not only to adjourn cases but also wind himself up as a Rent Controller till he has decided whether he is a Rent Controller or not a Rent Controller under a valid piece of legislation."
The learned District Judge has also referred to a Division Bench authority of this Court in the case of Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid‑ud‑Daula and others (P L D 1961 Lah. 993) in which the vires of the very same Ordinance was questioned and the District Judge in the petition before him under section 6 of the Ordinance pronounced a Verdict against its validity, but the High Court in appeal held that the Ordinance was perfectly valid. The competency of the Court of the District Judge to examine the validity of the Ordinance was not doubted or questioned. The learned District Judge in this case seems to have departed from this view as laid down in the D. B. authority, cited above, probably because he thought it was in conflict with the Full Bench ruling, also cited above, and which he found himself obliged to follow. Although he felt he was precluded to decide the question of the validity of the Ordinance, nonetheless he has disposed of issue No. 8 relying on the D. B. Judgment of this Court in Shah Daula's case in the following words: ----
"In any case, in P L D 1961 Lah. 993, it was held that Ordinance XXI of 1959 was a valid piece of legislation. This issue is accordingly decided against the petitioners."
We consider that the learned District Judge, in denying himself the jurisdiction to probe into the validity of the Ordinance in terms of the issue as was raised before him, has not made a correct approach to the problem. It could not be said that his Court as the District Court was the creation of the impugned. Ordinance, like the Rent Controller, as a Special Tribunal, and as a persona designata is a creation of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). His is a Court of general civil jurisdiction for all purposes and under the impugned Ordi nance that Court was assigned the task of making inquiries into the petitions instituted under section 6 of the same Ordinance without B in any way derogating from its general powers to deal with those applications according to law. Until the introduction of the new Constitution of 1962 Courts of general jurisdiction had the fullest powers, legal and constitutional, to scan the validity of laws which were brought before them for examination in connection with any action taken against any aggrieved person in respect of his person and property. The present Constitution, by the enactment of Article 133, has divested the Courts of that power, saving only the power of the High Court, exercisable, by it, for enforcement of fundamental rights under paragraph (c) of clause (2) of Article 98 of the Constitution. But as held by this Court in this Court in the case of Shukar Din v. Government of West Pakistan (P L D 1965 Lah, 522) Article 133 of the Constitution is prospective in its nature and that the validity of a law made before the 8th of June 1962, can be called in question before the Courts on the ground that the Legislature by which it was made had no power to make the law and Article 133 (2) is no bar to it. It was very rightly pointed out in this very judgment that a legal instrument C to have the protection of Article 225 of the Constitution as an existing law must have been made by a Legislature competent to make it and if a law or any part of it is ultra vires of the lawmak ing authority, it will not have that protection. This was a case under the West Pakistan Rangers Ordinance (XIV of 1959) which was held to be intra vires of the Governor in so far as it authorises the Provincial Government to create a force for purposes mentioned in section 6 (a) thereof. It is obvious that the Ordinances impugned in this case were promulgated before the present Constitution, and the power of the Courts, including that of the District Court could be officaciously invoked for a challenge to their validity.
12. Coming next to the validity of the Ordinances, it is necessary to give a short resume of their history. Ordinance XXI of 1959 (The West Pakistan Waqf Properties Ordinance, 1959) was made on the 15th of April, 1959, and gazetted on the 17th of April 1959. As the preamble discloses, it was a consolidating and amending law relating to management of Waqf properties in the Province of West Pakistan. Section 2(d) defined "Waqf
property" as meaning "property of any kind permanently dedicated by a person professing Islam for any purpose recognised 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."
Five Explanations were added to the definition, which are‑.
.‑If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable, then to spite of there being no evidence of express dedication, such property shall be deemed to be waqf.
.‑Property allotted in lieu or in exchange of waqf property left in India shall be deemed to be waqf property.
Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property shall be deemed to be Waqf property.
‑The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property:
Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes"
This Ordinance was amended by the West Pakistan Waqf Properties (Amendment) Ordinance (X of 1960), which was promulgated be‑the Governor of West Pakistan on the 4th of April 1960. The effect of this amending Ordinance was primarily To change the designations of the persons who could assume charge of Waqf properties on being appointed by the Provincial Governor, that is to say, "Chief Administrator" instead of "Administrator" or "an Administrator or Administrators" for "a Deputy or Deputies". There were some other changes made but it is not necessary to relate them here. Then followed Ordinance No. XXVIII of 1961 (The West Pakistan Waqf Properties Ordinance, 1961). This was gazetted on the 23rd of October 1961, which repealed the West Pakistan Waqf Properties Ordinance of 1959, and came into force in the district of Karachi at once and in the remaining areas of the Province of West Pakistan retrospectively with effect from the 7th of April, 1959. Explanation 6 was added to the definition of "Waqf property" in the following words:
.‑Property permanently dedicated for the purposes of a mosque, Takia, Khanqah, Dargah, or other shrines shall be deemed to be Waqf property,"
An explanation was also added to section 6 in the following words :‑
"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."
Section 6 may also be quoted :‑
"Notwitstandmg anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a waqf property."
13. The principal objection of Mr. Karam Elahi Chauhan (now Mr. Justice), the learned counsel for the petitioners Mujawirari was that the first Ordinance of 1959 was ultra vires of the Governor under which the action was taken by the Administrator to take over the disputed properties and so is the subsequent Ordinance which confirmed that action because they were in conflict with the Central laws, namely, the Religious Endowments Act of 1863 and the Central Shariat Act of 1937. The arguments is that as the central Acts, mentioned above, covered the field in respect of wakfs as recognised by the Muslim Law, the Provincial ordinances which were promulgated without the approval of the President were void to the extent of the repugnancy with those Acts. Section 22 of the Religious Endowments Act, 1863, provides that it shall not be lawful for the Central Government or any Provincial Government or for any officer of any Government in his official character to under take or assume the superintendence of any land or other property granted for the support of or otherwise belonging to any mosque, temple or other religious establishments, or to take any part in the managements or appropriation of any endowment made for the maintenance of any such mosque, temple or other such establishments or to nominate or appoint any trustee, manager or Superintendent thereof, or to be in any way concerned therewith. According to the learned counsel, the rights of Mutawallis and Sajjada Nashtns and Mujawirs to remain in control of the property were protected by the Muslim Law and interference by the Provincial Governor by means of Ordinances in removing those persons and replacing them by public officials was contrary to the Muslim law which bad also received statutory recognition in such matters by the Central Acts. These objections were raised precisely in the same form in the Division Bench case of Pir Rashid‑ud‑Daula, already cited above, and very comprehensively considered and answered. It was rightly pointed out in the judg ment of that case that at the time when Ordinance XXI of 1959 was promulgated by the Governor on the 17th of April, 1959, his powers to promulgate Ordinances were the same as given by Articles 102 and 106 of the 1956 Constitution by force of clause (1) of Article 5 of the Laws (Continuance in Force) Order of 1958 and he could promulgate Ordinances regarding all subjects about which the Provincial Legislature could have made laws, i.e. in respect of subjects which were included in the Provincial List contained in the Fifth Schedule of the late Constitution, and under certain conditions on all subjects contained in the Concurrent List of that Schedule. Waqfs and Mosques were cited at item No. 69 in the Provincial List. All the subjects of the Provincial List were brought on the Concurrent list subsequently by the President's Legislative Powers (Amendment) Order of 1959 which was issued by the President of Pakistan on the 23rd of September 1959 so that when the West Pakistan Waqf Properties (Amendment) Ordinance was passed on the 4th of April, 1960, the subject of Waqf had been transferred to the Concurrent List and the Governor could not make Ordinance in regard to it without complying with the provisions of clause (2) of Article 110 of the late Constitution which were to the effect that if a provision of law on a subject contained in the Concurrent List came in conflict with an Act of Pakistan Parliament or of an existing law, it was not to be deemed valid if it had not received the assent of the President of Pakistan. To the extent that the Governor's Ordinance was in conflict with section 22 of the Religious Endowments Act of 1863, which was the existing Central Law, the former would yield place to it, but, as remarked in the Division Bench Judgment already mentioned, the power to assume control of Waqf properties in Pakistan had already been conferred on persons appointed by the Provincial Governor by Ordinance No. XXI of 1959 which was promulgated by the Governor at the time when "Waqf" was a Provincial subject and he had full legislative powers over that subject. Ordinance X of 1960 merely changed the designation of the persons who had assumed charge of the Waqf properties on their appointment by the Provincial Government. The contention of Mr. Chauhan, however, stands further refuted by the consideration that the subsequent Ordinance for the assumption, control and regulation of Waqf Properties (West Pakistan Waqf Properties Ordinance No. XXVIII of 1961) was promulgated by the Governor of West Pakistan after having received the previous instructions from the President of Pakistan, on the 23rd of October, 1961, but it was given a retrospective operation from the 7th of April, 1959. This Ordinance obviously had the assent of the President. This Ordinance repealed the West Pakistan Waqf Properties Ordinance (XXI of 1959) by section 22, which, inter alia provided that actions taken under the repealed Ordinance shall be deemed to have been validly taken under the new Ordinance. Mr. Chauhan also challenged the vires of the Ordinances on the basis of fundamental rights, as according to him the Ordinance and the action taken there under infringed the petitioner Mujawiran's fundamental right of equality before law, immunity from deprivation of property save in accordance with law and with compensation, and their right to manage the religious institutions as contained in Articles 5, 15 and 18 of the late Constitution. This part of the argument was addressed before the suspension of the remedy for enforcement of the fundamental rights due to Emergency. At the time when the impugned action was taken, the late Constitution of 1956, which had embodied certain fundamental rights with a constitutional guarantee for their protection and a remedy for their enforcement, stood abrogated. Under the present Constitution, the West Pakistan Waqf Properties Ordinance of 1961 has been given an immunity from being struck down under Article 6 even if it were found to be inconsistent with, or in derogation of, fundamental rights. This Ordinance is one of the laws specified in the Fourth Schedule appended to the Constitution, which have been given this immunity. Further, as will appear from the sequel, the petitioner‑Mujawiran are not found to have any right in the property in dispute and, therefore, no question arises as to the infringement of any of their fundamental rights in relation to the same property.
14. We should now advert to the central point in the case on the factual plank which concerns the claim of the petitioner Mujawiran that they are the owners of the disputed properties and its treatment as public Waqf properties under the Ordinances is illegal and, alternatively that they have certain rights in the properties, connected with their status qua those properties which have survived and need to be protected in spite of the impugned Ordinances. The matters requiring decision in this behalf are the subject‑matter of issues Nos. 2, 3, 4, 5, 6, 9 and 10.
15. As already remarked above, the properties in question, which consist of lands, houses, shops and vacant sites, fall in the three revenue estates of village Shish Mahal, Lahore Khas and village Qatarband. The petitioners' claim to ownership of these properties is based on the ground that they are the descendants of Sheikh Hindi alias Rai Raju who was converted to Islam by Hazrat Data Ganj Bakhsh Faize Alim and was his first disciple and Khalifa Sheikh Hindi was the Deputy Governor of Lahore prior to the death of Hazrat Data Sahib in the year 454 A. H. This claim of the petitioners of descent . from Sheikh Hindi derives support from a statement which is contained at. p. 149 of "Tahqeeqate Chishti", a Book of History, containing an account of Saints and eminent religious persons and their Khanqahs, written by one Nur Ahmad Chishti more than a hundred years ago. This statement records that the Mujawiran of Maqbarae Aalia Hazrat Data Ganj Bakhsh Sahib had a Hindu ancestor who presented himself before Hazrat Data Sahib and became a Mussalman. He was a devoted and constant attendant of Hazrat Data Sahib who gave him the name of Sheikh Hindi. This statement contains the names of all the descendants of Sheikh Hindi, ending with the two sons of Sheikh Amir Bakhsh, named Fateh Din and Karim Bakhsh, who are said to be the living Mujawirs at the time of the writing of the Book. The petitioners have completed this genera logical table up to the present time by producing a Shajra (Exh. P. 7) which was prepared by P. W. 20, Muhammad Siddique, .who is one of the Mujawir petitioners. Ext. p. 7 was stated in turn to be based on Exh. P. 8, which this witness stated had been prepared by his grandfather. The learned District Judge has held this document (Exh. P. 8) as inadmissible in a note contained in the statement of this very witness on the ground that this document does not bear the signature of the maker thereof ; nor is any date of preparation given therein and the witness had stated that his grandfather had died before he was born. Nonetheless, the learned District Judge has found that the petitioners are the descendants of Sheikh Hindi, presumably basing his decision on the verbal testimony of the petitioners. It is not, however, necessary to give a finding on this point as the case of the petitioners in regard to their claim for ownership of the properties in dispute is not at all advanced on account of their being the descendants of Sheikh Hindi, because it is not proved on the record that Sheikh Hindi had ever held or was the owner of this property. In fact, no attempt appears to have been made by the petitioners to show this. They have rested their claim on the strength of the revenue entries of the years 1856 and 1868, wherein all the area is recorded in the ownership of Mujawiran of Hazrat Data Ganj Bakbsh Sahib and as "Maqbooza Malikan". It is the petitioners case that the entire estate was divided into three pattis, namely, Patti Khair Din, Patti Ala‑ud -Din, and Patti Qutbuddin which are the internal sub‑divisions of their family. Excerpts from the revenue records pertaining to the lands in Shish Mahal and Qatarband were produced by P. W. 83, Muhammad Jamil, Kanungo Ishtimal, which are Exhs. P. 135 and P. 136 and by Muhammad Sharif, Moharrir Patwari, in respect of Mauza Lahore Khas (P. 104). They have also described the changes in the Khasra Numbers of the fields in dispute as entered in the Misle Haqiyyat of 1868 on account of the subsequent Bandobasts which have taken place in the three Settlements nat followed in 1891‑92, 1913‑14 and 1937‑38. It is necessary to refer briefly to the revenue history of these Khasra Numbers. Firstly, with regard to the land of village Lahore Khas, measuring roughly about 31 Kanals, 2 Marlas and 41 Sq. ft., wherein are also situated 46 houses and 12 shops as also the Dargah of Hazrat Data Ganj Bakhsh Sahib, the mosque and the astanas, the field numbers in the impugned notification are the same as in the Settlement of 1941‑42. In the Jamabandi of the year 1889‑90 the land bore the following field numbers: ‑
Out of these Field No. 85, measuring 2 Kanals and 8 Marlas, forming Khata No. 1, is shown to be owned by Qutb‑ud‑Din, a descendant of Sulaiman. Fields Nos.
URDU TYPING
measuring 1 Kanal and 16 Marlas, forming Khata No. 2, is recorded in the ownership of Ala‑ud‑Din, a descendant of Usman. Fields Nos. 75,, and 75‑y measuring 4 Kanals and 18 Marlas, forming Khata No. 3, are shown to be owned by Khair Din, a descendant of Yaqub. The remaining, measuring 18 Kanals and 8 Marlas, forming Khata No. 4, are shown to be owned by the Mujawirs of Hazrat Data Ganj Bakhsh Sahib. By virtue of a statement given by Jan Muhammad, Allah Din and Muhammad Ali acting as attorneys for all the Mujawiran to the effect that lands forming part of Khatas Nos. 1, 2 and 3 be shown to be owned by Dargah Hazrat Data Ganj Bakhsh Sahib, a mutation was attested bearing No. 183, on the 24th of August, 1892 (copy Exh. P. 216), whereby Khatas Nos. 1, 2 and 3 were mutated in favour of Dargah Hazrat Data Ganj Bakhsh Sahib. A similar mutation No. 204 (copy Exh. P. 210) was attested on the same date in respect of the land in village Shish Mahal on a statement made by the same persons, namely, Jan Muhammad, Allah Din and Muhammad Ali, as Mukhtarane Aam of "Jumla Mujawiran" of Dargah Hazrat Data Ganj Bakhsh Sahib. As the new entries to the revenue records in favour of Dargah Hazrat Data Ganj Bakhsh Sahib are based on the same statement, it is necessary to reproduce it verbatim: ---
16. By mutation No. 204, pertaining to land in village Shish Mahal, mentioned above, Khatas Nos. 77, 78, 79 and 80 were mutated in ‑the name of Hazrat Data Ganj Bakhsh Sahib. These Khatas consisted of Khasras Nos. 573, 373, 577, 579, 581 and 582, measuring about 14 Kanals and 11 Marlas. The mutation, however, seems to have left out about 60 kanals of land in this village comprised in Khasra Numbers 372, 609, 611, 612, 613, 614, 615, 617, 618, 619, 620, 621, 622 and 624, which are included in the impugned notification. In village Qatarband, entries relating to ownership and possession in the Jamabandi of 1868 show that the entire land m dispute in this village was owned by the Mujawiran and was in their possession through tenants‑at will, namely, Imam Din, Sattar, Umri, etc. By mutation No. 33, sanctioned on the 21st of February 1892, the land in Khata No. 14 in village Qatarband, which was in the possession of one Maulvi Nawab Din as an occupancy tenant, paying land revenue as an owner, was mutated in favour of Dargah Hazrat Data Ganj Bakhsh Sahib by the deletion of the name of Maulvi Nawab Din from the ownership column. The report of the Patwari on this mutation showed that all the Mujawirs had wished that Dargah Hazrat Data Ganj Bakhsh Sahib be shown in the column of ownership instead of the Mujawiran. However, in the succeeding Settlement of 1891‑92, all the land which has been taken over by the Auqaf Department in all the three vil4ages is entered in the name of Dargah Hazrat Data Ganj Sahib and this position has been affirmed in all the subsequent Jamabandis which have been prepared ever since.
17. The learned counsel for the Mujawiran petitioners has contended that the lands not covered by the respective mutations in the three villages were wrongly shown in the subsequent Jamabandis as belonging to Hazrat Data Ganj Bakhsh Sahib. In our view, the mistake seems to be in the mutations and not in the revenue records that have followed. The statements made by the attorneys of all the Mujawiran, which has been reproduced above, did not leave any manner of doubt that the Mujawirs wanted the real position to be incorporated in the revenue records by a frank and open admission of the fact that no part of the land entered in their names had ever belonged to them and that the whole of it was in the ownership of Dargah Hazrat Data Ganj Bskhsh Sahib. It is well settled that mutations by them selves do not confer title and while they are relevant as orders of the competent revenue authorities in the discharge of their duties, there is no presumption of truth attached to them under section 44 of the, Land Revenue Act such as attaches to the entries in the records in favour of Dargah Hazrat Data Ganj Bakhsh Sahib are based on the same statement, it is necessary to reproduce it verbatim: --‑
Jamabandis. The change in the Settlement records of 1891‑92, showing Dargah Hazrat Data Ganj Bakhsh Sahib as the owner of the properties in dispute which entry has persisted ever since in all the subsequent Jamabandis that have been prepared owes its origin not to the mutations but to the clear and unambiguous statement of the Mujawiran themselves who had disavowed the ownership of the properties making a straight‑forward admission that the lands in fact belonged to Hazrat Data Ganj Bakhsh Sahib and should be recorded as such in the revenue records. ‑It seems to us that even the initial entries in the Jamabandis prior to 1891‑92 in the names of the Mujawiran as owners, while they are irreconcilable with the claims of the Mujawiran as individual owners, seem to be in consonance with the real position that the lands belonged to the institution, i.e.., Dargah Hazrat Data Ganj Bakhsh Sahib of which the Mujawiran were the servants. As disclosed in the evidence on record the Mujawiran represent a compact community of persons. According to their custom, those of them who leave Lahore or die out cease to have any right as Mujawirs and every new born baby takes a share on birth. No personal right of heirship or inheritance in the properties is claimed by any of the Mujawiran, the right according to their own case being merely institutional, arising from their connection with the Dargah which they represent as its servants.
18. In our view, it is not at all satisfactorily established on evidence that the petitioner‑Mujawiran are, heirs of the persons who are recorded as owners of some of the lands in dispute in the year 1856 or 1868. In fact, the petitioners do not claim the ownership of the properties on the basis of inheritance from those persons or for that matter from the Mujawiran of that period. Their entire case is rooted on the plea that they' are the present representatives of the Institution of Mujawiran which is the owner of these properties and the case has to be examined in that light. It was admitted by one of the petitioners, P. W. 21 Muhammad Amin, that the mosque, the shrine and the astanas were Waqf properties. These astanas, according to him, were constructed by two devotees of the Dargah, named Mst. Shahzadi Begum and Muhammad Bakhsh Dalgar. He, however, asserted in the same statement that these astanas built by these two persons were not Waqf because they had constructed them in lieu of the site which had been given to them by the Mujawiran for burial purposes. P. W. 22 Ghulam Rasul, another petitioner, however, admitted without any reservation that the two astanas constructed by Mst. Shahzadi Begum and Muhammad Bakbsh Dalgar are Waqf properties and so is the mosque. He was, however, not aware whether the Rauza was also Waqf property. There cannot be any doubt that the purpose for which a Waqf is created must be one recognised by the Muhammadan Law as religious, pious or charitable. The upkeep and maintenance of a Khanqah and its allied institutions for charity and religious instructions is one of those purposes. (See Muhammad Kazim v. Syed Abid (136 1 C 417)). It is riot at all proved in this case that the present petitioners or their ancestors had acquired any part of the lands which have now been taken over by the Auqaf Department in their own right dependently of those of Dargah Hazrat Data Ganj Bakhsh Sahib. It seems clear to us that Hazrat Data Ganj Bakhsh Sahib, who had attained the highest eminence as a Saint of great piety and learning, was held all‑around in a very great veneration and respect which is deeply embedded in the hearts of the Muslim community. He was a preacher of Islamic faith and ideology in its purest form. He was not a mystic to whom can be attributed any particular school of Sufism nor was he responsible for the setting up of any particular Silsila like the Silsilae "Chishtia" "Qadaria" and "Sarwardia" There was, therefore, no question of his leaving behind any Sajjada Nashin, Sahibzada or halifa in the sense in which these terms are known. After the death of Hazrat Data Ganj Bakhsh Sahib, his tomb on which a mausoleum was put up, became consecrated as a Khanqah which means the burial place of a holy Saint. It became the nucleus for the building up of the mosque and the astanas around it and the other properties, lands, etc., were simultaneously or subsequently endowed and acquired for the upkeep and maintenance of the Khanqah. The word "Dargah" itself includes a group of buildings of which the tomb forms the nucleus. The properties were thus Waqf properties and if any part of them had been put to any extraneous use, i.e., for purposes not connected with the maintenance of the Dargah of Hazrat Data Ganj Bakhsh Sahib or the allied charitable and religious purposes by the Mujawiran who were supposed to be the care‑takers of this property, that unwarranted user will not change the origin or character of the property as waqf property. It is necessary here to advert to the legal effect of the statement made by the duly authorised attorneys of the Mujawiran in the year 1892, already reproduced above, constituting as an estoppel in terms of the issue No. 3, framed by the learned District Judge. The learned District Judge has answered the issue in the affirmative holding that the statement does estop the petitioners who claim their descent and derivative title to the properties from the Mujawiran of the year 1892. They are estopped from maintaining that the properties belonged to them and not to the Dargah of Hazrat Data Ganj Bakhsh Sahib. It may be noted that Jan Muhammad, Allah Din and Muhammad Ali, who made the statement on behalf of the Mujawiran, held a valid power of attorney (Exh. P. W. 83/3) on behalf of all the Mujawirs, giving them an authority to take the action which they took. The learned counsel for the petitioners argued that the statement does not fall within the ambit of section 115 of the Evidence Act to operate as a legal estoppel. It is pointed out that no representation was made to anyone and there being no representative to whom the statement was addressed, much less the Auqaf Department which was not in existence then, no one was made to act on the representation to his detriment. The argument ignores the basic aspect of the case. The entire public at large is interested in the Waqf properties and the representation made by the Mujawirs that the property was Waqf property made the entire community and the public at large to accept and to be reconciled to that position and to treat the property as Waqf property and make its contributions thereto in recognition of the fact that the property was Waqf property. For the purposes of estoppel, a representatee is deemed in law to include no only any person to whom the representation is directly and immediately made but also any person to whose notice the representation, though not made to him, was intended to come and did in fact come (Monir's Evidence Act, page 774, Fourth J Edition). The representative would thus include any member of the public or of a section of the community who is proved to have acted on a representation addressed not to any specific individual but to such public or section. The State is as much entitled to a plea of estoppel as any other individual. By a clear and a decisive statement the Mujawirs made it known to the whole world that the property which was entered in their names in the revenue records was in fact the property of the Dargah of Hazrat Data Ganj Bakhsh Sahib and that the revenue entries in their names which were wrong should be corrected. If at all they could be considered to have had any rights, they relinquished them unreservedly, making every one believe that they had waived any right which they may have been entitled to assert and in this context their action does also amount to waiver. It is not the petitioners case that the statement was made as a result of any misconception or mistaken notion of their rights by the then Mujawiran. The assertion that the statement was illusory without any reality because the Mujawirs wanted to maintain their solidarity by a nominal transfer of the estate to the Dargah of Hazrat Data Ganj Bakhsh Sahib does not stand scrutiny on the proved facts of the case. There was hardly any occasion or need for a nominal transfer or a notional surrender of the properties. We consider, therefore, that the petitioners, as the representatives of the Mujawiran of the year 1892, assuming that they are such representatives, afire estopped from taking a contrary position from the one accepted by their ancestors which would amount to approbation and reprobation in the same breath and which is not permitted by law.
19. This brings us to the consideration of the status of the Mujawiran which the petitioners claim for themselves. A "Mujawir" is defined by Tyabji in his Muhammadan Law, Third Edition, page 536, paragraph 8A, as a care‑taker of a shrine or a mosque or similar institution ; be may also sweep the premises". The position of a Mujawir is different from that of a Mutawalli or, a Sajjada Nashin. The former is a Manager or trustee of a Waqf x property whereas the latter holds the position of a religious preceptor as does the Imam of a mosque who leads the prayer at a congregation or officiates at religious services like marriages and funerals and is, therefore, a religious official, unlike a Mujawir, whose main duty is to take care of a Shrine. The duties and the ceremonies performed by the Mujawiran in relation to the Dargah of Hazrat Data Ganj Bakhsh Sahib are enumerated by P. W. 20, Muhammad Siddique, as follows:‑
(1) The holding of the annual Urs;
(2) The maintenance and the upkeep of the Langar;
(3) arrangements for the holding of Majlis presided over by the Mujawirs;
(4) giving of Dastars to devotees;
(5) ceremonies on the occasion of the last Chahar Shamba in the month of Safar annually;
(6) arrangements for the annual Urs of Sheikh Hindi
(7) Khatm of the Holy Prophet which falls on the 12th Rabiul Awwal every year; and
(8) the changing of Ghilaf of the Mazar Sharif every month;
(9) the taking out of the money put into the box by the visitors by way of offerings at the shrine after deducting the amount spent in Langar, the rest being distributed daily among the Mujawirs.
According to their own case, the Mujawiran have been performing these functions and ceremonies as servants of the shrine on account of their devotional and traditional attachment to it and they have been suffered to do so by the authorities and the public at large. It is not their case and could not be their case that they have been the direct recipients from the State or the public of any bounties and endowments in individual or sectional capacity. If they have been appropriating to themselves any bounties and endowments made to the Dargah, it is because of their assumed and suffered status as the servants of the Dargah, but that would not make them the owners of the properties of the Dargah or change them from servants into masters. Instances were quoted by the learned counsel for the petitioners of the transactions of sale, mortgages and leases by the petitioners allegedly in exercise of their disposing powers as owners with regard to some of the properties in dispute, but as the properties belonged to the Dargah and the Mujawirs were merely its servants and care‑takers and, as such, its trustees, any action by them in derogation of the right of ownership of the Dargah would merely amount to a breach of trust. It is well settled that breaches of trust, however numerous they may be extending to however long a period, cannot put an end to the trust nor change the character of the trust. (See L in this connection Muhammad Said and others v. Mst. Sakina Begum and others (A I R 1935 Lah. 626) Ch. Muhammad Afzal and others v. Ch. Din Muhammad and others (A I R 1947 Lah, 117) and Beli Ram & Brothers v. Ch. Muhammad Afzal and others (AIR 1948 P C 168). Similarly, the length or the extent of control by the Mujawirs over the Waqf property do not alter the incidents of the property as an endowment. Strict Islamic law has always recognised the authority of the Qazi or the ruling power over Waqf properties and this authority is always available to Administer and manage Waqf. Reference may be made to Macnaghten, Case No. IX, page 343, wherein it is stated; M "Property belonging to an endowment is legally subject to the control of the ruling powers". Endowed property is not subject to inheritance and the ruling authority has the power of appointment in the absence of the appropriator or his executor. (Case No. III, page 329 ibid). On a close scrutiny of the petitioners claim for ownership, in the background of the history of this endowment, the necessary incidents flowing from it and the explicit statement of the ancestors of the petitioners, disavowing any claim to ownership of the lands in dispute, we have no hesitation in affirming the finding reached by the learned District Judge that the petitioners claim to the ownership of the lands in dispute must fail.
20. As we are in agreement with the finding of the learned District Judge that the ownership of the lands in dispute has from the very start vested in the Dargah, the question of the making of a Waqf of these properties by the petitioners Mujawirs or their ancestors and its validity does not arise. The argument raised was that the properties had remained in possession of the petitioners and their ancestors in spite of their dedication as a Waqf and as they have been in possession of the corpus of the property and have been enjoying its usufruct, they must be held to be the beneficiaries of the Waqf, making it a private Waqf, which is not hit by the impugned Ordinances as a public Waqf. The statement made by the duly authorised agents and their attorneys of the Mujawiran, already 'reproduced above, makes it absolutely clear that all the Mujawiran had at the time admitted that the properties in fact belonged to the Dargah of Hazrat Data Ganj Bakhsh Sahib in which they had no right of ownership and it was proper that the real position be restored and recorded in the revenue papers. This was done. It was not at all a case of the Mujawiran divesting themselves of any right of ownership in the property but it was a case of acknowledgment of the property as belonging to the real owner, viz., Dargah Hazrat Data Ganj Bakhsh Sahib.
21. The learned District Judge has dealt separately with the point of ownership of the superstructures of houses and shops constructed on the lands in view of the claim put forward by the petitioners in their separate petitions as serially numbered by the District Judge in his judgment from Petition No. 3 to Petition No. 48. The evidence led by each set of the petitioners in the various petitions has been discussed on the point whether the super‑structures of the buildings claimed by them in their respective petitions were put up by them or their ancestors at their own cost. Evidence has been produced to prove the petitioners' independent resources to meet the cost of these constructions, the plans sanctioned by the Corporation at their instance and the taxes paid in respect of these buildings by the various petitioners. No evidence was produced by the Auqaf Department in rebuttal. In the circumstances, no conclusion on the evidence is possible other than the one reached by the learned District Judge that it is proved beyond any doubt that the superstructures of the houses and shops were constructed by the various petitioners with their own money. The learned counsel for the Auqaf Department has not been able to counter this evidence but he has argued this aspect of the case mainly on the consideration that the petitioners could not have up the buildings out of their own humble resources and that funds from the Waqf properties of the Dargah Hazrat Data Ganj Bakhsh Sahib must have been diverted towards the cost of construction, The argument proceeds on a purely conjectural premises. But assuming that the petitioners who were the Mujawirs and held the control of the properties, had appropriated a part of the income of the properties to themselves and had also utilised them in the construction of their own houses and shops without any objection, that fact would not detract from their ownership of those constructions. What they have been having and were allowed to have out of the income of Waqf Properties to spend on themselves or on their constructions cannot be recovered back from them. The assump tion and, control by the State of the properties in question from a particular period cannot be reversed back in the absence of any law to relieve the persons who were allowed to remain in charge of those properties of any benefits that they may have derived from them. We feel constrained to hold on the evidence on record, in agreement with the learned District Judge, that the super structures of the houses and shops must be held to belong to the various petitioners as claimed by them. The mere fact that these constructions were made partly out of the income of the shrine of Hazrat Data Ganj Bakhsh Sahib, which the Mujawirs or their N ancestors had received from the income of the endowment would not make these houses and shops an accretions to the Waqf property. The discussion already made has disposed of the question of ownership of the properties and the allied questions as covered by Issues Nos. 2, 3, 4, 5, and 6.
22. We may now proceed to examine issues No. 9 and 10 which deal with the point whether the petitioners Mujawiran have any rights left in the properties despite their having been taken over by the Auqaf Department, and in particular, whether they have any right of burial in any of the disputed properties and whether they are entitled to perform spiritual and other functions such as they have been performing in the past. The most important right which is claimed in this behalf is the right to receive the offerings made at the Durgah. The answer must be returned definitely in the negative. The nature of the functions and duties which have been exercised by them have already been enumerated. The claim for the continued exercise of these functions as a matter of right is wholly misconceived. The Mujawirship, if that word may be employed, is not an office recognised by Muslim Law which can be held in succession or in perpetuity as a matter of right. A Mujawir as a care‑taker holds his position on sufferance and at the will of the persons who may o be the valid custodians of the shrine and the properties of which he may be the care‑taker. The status of the Mujawirs and their right to receive offerings for themselves and perform other functions has been comprehensively discussed by an eminent Muslim Judge, Tyabji, J. in the case of Mahomed Oosman v. Essak Salemahomed Vanjara (I L R 1938 Born. 184) and the observations made therein may be profitably quoted
"A Mujawar is a servant of a Muhammadan shrine or mosque. The claim of a Mujawar to act as an intermediary or as an intercessor between God and man is opposed to Islamic teaching. The office of Mujawir as an integral part of a dargah is not known to Mahomedan Law. Even if such office is known to the law, where there is no clear proof of long user, there can be no claim to it by hereditary succession.
Mujawirs have ordinarily no claim to offerings made at dargahs. These offerings are to be dealt with by the trustees, in accordance with the scheme for the upkeep of the Dargah, or the provisions of the waqfnama After the expenses necessary for the upkeep of the Dargah are provided for, the surplus income may be applied for general religious or charitable objects."
In the precedent case, the plaintiffs had claimed a declaration‑--
(a) that they were hereditary Mujawirs of the Dargah and as such were entitled to occupy certain premises forming part of the said property free of rent;
(b) that they were entitled absolutely to the offerings in the Ghalla known as Musawari Ghalla;
(c) that they were entitled to Rs. 25 per year out of the offerings in the big Ghalla;
(d) that they were absolutely entitled to offerings of cocoanuts, sugar, etc. made by the devotees; and
(e) that they were entitled absolutely to the copper coins in which babies were weighed at the said dargah and various other offerings.
The duties and privileges of the Mujawirs which were claimed in, that case were more or less identical with those claimed in the present case. They were: ---
(1) to sit by the tomb;
(2) when the devotees come, to read the Fateha;
(3) to invoke the blessings of the Pir for the devotees;
(4) to keep lights burning at the shrine;
(5) to put on the Ghilaf (covering) and to do other work;
(6) to put on the incense;
(7) to weigh the children;
(8) to place flowers on the tomb;
(9) generally to act as intermediaries between the devotee and the Pir.
Commenting on the right to perform these duties or functions, his Lordship has observed:‑
"Islam is singularly free from ceremonial, in the sense of the formal, mechanical observance of external action as a require ment for legal or religious ofiicacy, or as a means for coming into spiritual relations with the unseen . . . . . . . .
The religious duties that the Hanifi law imposes in regard to burial and tombs are no exception in regard to this freedom. The duties fall under two heads: (1) every human being is bound to see to the respectful burial of every other human being; and (2) it is expected that the vicinity of a grave, where death seems imminent, will lead to meditation on the responsibility of life and death. . .
Thus it is not the overt act or ceremonial form, but the subjective frame of mind that is the foundation of the religious observance consisting of a recitation from the Quran in the vicinity of a grave. When the grave covers the remains of a holy person the sense of religious duty may be presumed to be intensified. But the law does not annex to the devotional recitation any secular rights. The difficulty in the plaintiffs case lies in conceiving a complete change of these common duties, in the vain attempts to explain the process by which these duties are transferred from the shoulders of ordinary human beings who visit graves to those of the extraordinary human beings who are entitled to the designated Mujawirs and how by the transfer they are converted from the duties of the former into the privileges of the latter . . . . . . . .
The claim to act as intermediaries or intercessors calls for ‑ consideration by itself. Apart from this special claim the plaintiffs do not put forward any such allegation relating to their duties or functions as would lead to a decision that the alleged office is known to the law and the holder of the office is expected to perform those duties. Apart from intercession, what according to their allegations must be deemed to be the Mujawars' duties are the ordinary duties, rather amenities, expected from every Muslim. From the performance of such acts of religious courtesy, notwithstanding that the appellation of duties or services be ascribed to them, no one can be excluded or restrained. The right to do such acts cannot be claimed as the special privilege and function of any individual. From the fact, if it be the fact, that such acts of religious courtesy have been done in the past by the plaintiffs and their ancestors, no title to special privileges can be derived. The trustees cannot be prevented from employing any person they may select for the observance or for rendering assistance in the observance of such part of the amenities as may be deemed necessary or proper."
23. As for the doctrine of intercession, i.e. an intervention between the devotee and the Pir and ultimately the God, it was pointed out that the Holy Quran itself insists that each soul is directly answerable to God and that no intercession shall avail "save his whom God shall allow to intercede" (Sura XX: 108; II: 48, 255; XLIII: 86). Regarding the claim of the Mujawirs to offerings made at the shrine, reference is made in the judgment to the Verses in the Holy Quran, wherein it is emphasised that service rendered by imparting religious instructions or in the performance of religious duties should not be rendered "for the sake of recompense" but only as seeking, the face of the Most High." The Mujawirs in that case, as in the present, sought to establish their claim to receive the offerings on the basis that as they or their ancestors have been receiving them in the past, they should continue to receive them in the future. As remarked by His Lordship, any idea of the offerings being made as gift to the Mujawirs personally must be put aside. . "What are referred to as offerings at the dargah are gifts, in some way specially connected with the dargah (Sadqa is probably the term that ought to be applied to them), brought by those who visit the shrine. The position in law of such offerings ought not to admit of serious question. I have already alluded to the fact that a visit to a tomb is presumed to act as a memento of death and to produce a feeling of heightened spiritual consciousness, leading to devotional recitation (from the Quran) and resulting in a desire to fulfill the dictates of religion generally. The Quran has from first to last linked with religion a duty to help the needy . . . . . The thought of death and charity are pointedly brought together in several passages of the Holy Quran: "Oh ye who believe, let not your wealth divert you from remembrance of God: and expend in giving alms and become of the just ere death surprise each of you." (LXIII 9, 10). Visitors to graves being reminded that death may surprise them, incline to give a due share of their wealth to the suppliant and the outcast. (LI: 19); and thus to "Lend God a good deed: for whatever good deeds ye send on before for your own behalf ye shall find with God. "(LXXIII 20)." None of the prayers sought by the Mujawirs was granted and the suit was dismissed.
24. The offerings that are made at the shrine or put in the box placed there are made by the visitors for the gratification of their own souls as a measure of charity in the belief that by doing so they would by this act of piety be winning the favour of the holy Saint at whose Dargah offerings are made. The object of the donors cannot be that the money be misspent or expended on undeserving individuals, even though such individuals may claim or happen to have close connections and long association with the Dargah. The offerings must be put to real charitable uses. If the Mujawirs feel that the offerings are made to them in their personal capacity, out of veneration for them and not with an object of giving charity for deserving objects, they need not depend on the offerings being put into the box at the shrine to be taken away by them. Persons who desire to bestow charity on them or who want to make offerings to them personally can do so even while they be in their homes. There seems to be no basis whatsoever for the claim of the Mujawirs that the offerings made at the shrine are in fact offerings made to them and are subject to their control and appropriation. The mere fact that they have been receiving and were allowed to have such offerings in the past does not invest them with any title to receive them in the future, on the ground of "user" without there being any foundation for this title. It cannot be seriously denied that offerings made at the shrine which are primarily intended by the donors for charity and alms in "Waqf" according to pure Islamic Law. The Ordinance however, has left the question in no doubt by adding Explanation (4) to section 2(d) whereby the definition of "Waqf Property" has been enlarged to include the "income from boxes placed at a shrine and offerings or subscriptions for charitable purposes." As for the Mujawirs' claim to perform functions and ceremonies in the Dargah which they have been performing in the past, the answer is the same. It is not shown that they are clothed with an exclusive privilege to perform such functions or to continue to perform them on the basis of special piety or learning to which they have not set up any pretensions.
25. The learned counsel for the petitioners has referred us to a judgment of their Lordship of the Supreme Court in the case of Sh. Inayat Ullah and others v. M. A. Khan and others (P L D 1964 S C 126) for the contention that the Chief Administrator Auqaf has no power to ban the ceremonies and functions which the petitioners have been performing in the past and for which their right is now established by user in spite of the acquisition of the Dargah and its properties. We do not consider that the case cited is of any assistance to the petitioners. In that case the question for consideration was whether the Chief Administrator under his powers of administration, control, management and maintenance of Waqf properties can forbid the holding of the Khatm Sharif Ghausia Alia within the precincts of the mosque, a religious practice which had been in vogue in that mosque in the past. The word "control" as used in section 6 of the Ordinance and the Explanation thereof came in for interpretation. The section reads:‑
6. Chief Administrator may take over Waqf property by notification. Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may by notification, take over and assume the administration, control, management and maintenance of a waqf property.
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."
His Lordship, Mr. Justice S. A. Rahman, who wrote the judgment made the following observations‑
"The question whether the performance of Khatm Sharif Ghausia Alia is consistent with the strict injunctions of Islam or not, or whether such a function could be held within the precincts of a mosque in consonance with such injunctions, is a larger question which does not arise for adjudication in the present case. We shall confine ourselves to the limited question raised on the writ petition in the High Court, with regard to the powers of the Manager under the Ordinance, to pass the impugned order.
The word control occurring in section 6 of the Ordinance, was stressed on behalf of the respondents, as conferring power on the Chief Administrator even to check or restrict a ceremony, regarded as religious or otherwise, by virtue of the explanation to that section. It is true that dictionaries assign to the word control the meaning of checking or restricting, among other meanings. The question however is whether that meaning would be in consonance with the purposes and objects of the Ordinance itself. Another meaning given by the dictionaries of the word control is to regulate. Considering that the main object of the consolidating Ordinance is the management of the waqf properties, the latter meaning is more likely to be in accord with the intention of the Legislature."
Commenting on the limitations of the powers of the Chief Administrator under section 13 of the Ordinance in the administration of waqf properties, observations were made at the Bottom of page 133 of the Report containing the following passage: ---
"The question however is whether the Chief Administrator or his nominee can impose such a ban on a user which had existed before the Waqf property was taken over under the Ordinance. The question whether such a user was under the law of Islam, a legitimate user of the property in question or not might be capable of decision in the proper forum, namely, the courts of general civil jurisdiction. It would, however, be too much to say that a similar power existed in the case of the Chief Administrator under the Ordinance, to decide such religious issues. On the contrary, the language employed in section 13 itself, suggests that it is the duty of the Chief Administrator to carry on the user of the Waqf property for the purpose for which it was dedicated or for which it had been used. In certain respects under the last clause of this section, he might even be competent to permit the user of the Waqf property for any other purpose (recognised by Islam as religious, pious or charitable', but that does not imply a power to upset practices claimed to be of a religious character established in the past."
The learned counsel has argued on the basis of this passage that the Administrator had no powers to ban practices which had been going on in this Dargah, whatever their character or nature. This, however, is not correct, as the citation clearly refers to practices, which are claimed to be of a religious character and not all practices. Further, it is explained in the same context that if the user amounts to the misuse of the property, according to all sects of Islam, such a misuse could be prevented by an order of the Administrator. It may be pointed out that section 13 of the Ordinance which enjoins on the Administrator the user of the Waqf property for the purpose for it was dedicated or has been used, or for any purpose recognised by Islam as religious, pious or charitable, as the Administrator may deem fit, is subject to the other provisions of this Ordinance and one of those provisions as already mentioned is the Explanation added to section 6 of the Ordinance, which gives a power to the Chief Administrator to control in the ‑sense of regulating the performance and management of religious, spiritual, cultural and other services and ceremonies at or in a Waqf property. This power certainly extends to the regulating of the performance of these ceremonies the mere fact that such ceremonies have been performed in the past; does not warrant an inference that such ceremonies regardless of their character, were, or have become, the purpose of this Waqf by user. In the present case, however, it is not shown that any of the religious ceremonies or practices performed by the petitioners have been forbidden by the Administrator. In fact, it is admitted in the evidence produced by the petitioners that the "rights and ceremonies are being followed now as they were being per formed previously". (See statement of P. W. 13 Syed Feroze Hasan Shah). What the petitioners claim is that they are exclusively entitled to the performance of certain functions which appear toll be snore emotional and sentimental rather than religious. It is difficult to uphold this exclusive privilege as claimed by the petitioners and to maintain that the Dargah was intended for the performance of the ceremonial functions by the petitioners which the petitioners claim to have been performing exclusively at the Dargah or that they are at all necessary for the maintenance of the shrine and its religious or charitable objects and purposes. Similarly, the petitioner‑ 1N1ujawiran have failed to prove an indefeasible right of burying their dead bodies in the precincts of the Dargah, for which the only basis furnished is that they had buried sonic of their dead bodies in the past. As pointed out by the learned District Judge, this right has lost all significance, as there is no more burial place left in the Dargah for burying the dead bodies.
26. We are finally left with the claim of the petitioners to the sum of Rs. 12,561‑8, which was recovered from the box placed at the shrine at the time the Chief Administrator Auqaf took over properties. The petitioners‑Mujawiran claim that this was their private money which they had placed in the box in thhelis for safe custody. An application was moved before us on behalf of the Chief Administrator Auqaf to allow the production of additional evidence to disclose the circumstances under which this amount was recovered. We have disallowed this as we considered that it was not necessary for the decision of the case. Reference was made to the evidence of P. W. 19 Muhammad Shafi, a clerk of the Treasury, who admitted that some coins were found placed separately in thhelis. This circumstance, in our view, does not make any difference to the ownership of the amount. P. W. Muhammad Amin, who is one of the petitioners, admitted in the course of his statement that this amount was intended for the repairs of the shrine. It is not believable that the Mujawirs would place their own money in the box placed at the shrine. The petitioners cannot lay any claim to the amount of offerings that was found at the Dargah after the assumption of the control and management of the Dargah, and its property by the Auqaf Department. The Ordinance particularly provide that offerings made in the box placed at the shrine is Waqf property.
27. The result is that we maintain the orders made by the learned District Judge declaring that all the properties in dispute, except the superstructures of the shops and buildings which had been put up by the petitioners as decreed by the learned District Judge, are waqf properties. We dismiss all the appeals filed by both sides. In view of the peculiar circumstances of the case, we leave the parties to bear their own costs.
K. B. A.
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