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P L D 1958 Dacca 203 Before Ispahani, J

(On difference of opinion between Ahbar, CJ. and Chowdhury, J.)

MUHAMMAD MAHDI ALI KHAN PANNI and others‑Petitioners

versus

THE PROVINCE OF EAST PAKISTAN and another--Respondents

Constitutional Civil Appeals Nos. (1) 2/D of 1956 in Writ Petition No. 22 of 1956‑Muhammad Mahdi Ali Khan Panni Petitioner v. The Province of East Pakistan and another Respondents ; (2) 3/D of 1956 in Writ Petition No. 62 of 1956: Syed Muhammad Ali‑Petitioner v. The Province of East Pakistan and another‑Respondents ; (3) 4/D of 1956 in Writ Petition No. 18 of 1956‑Khurram Khan Panni ---Petitioner v. The Province of East Pakistan and another--- Respondents ; (4) 3 of 1956 in Writ Petition No. 14 of 1956 Shah Zillur Rahman Chowdhury‑--Petitioner v. The Province of East Pakistan and another‑Respondents ; (5) 13 of 1956 in Writ Petition No. 17 of 1956‑Maulvi Fatadad Gaznvi Petitioner v. The Province of East Pakistan and another ‑Respondents; (6) 28 of 1956 in Writ Petition No. 67 of 1956‑Enayet Hosain Choudhury‑Petitioner v. The Province of East Pakistan and another‑Respondents ; (7) 31 of 1956 in Writ Petition No. 32 of 1956‑Yar Ali Khan‑Petitioner v. The Province of East Pakistan and another‑Respondents ; (8) 34 of 1956 in Writ Petition No. 28 of 1956‑Mr. A. B. M. Shayesta Khan‑Petitioner v. The Province of East Pakistan and another‑Respondents, decided on 20th December 1957. (Division Bench judgment on 26th August 1957).

(a) East Bengal State Acquisition and Tenancy Act, 1950 (XXIVIII of 1951),

S.3 (1) (2)

‑

Wakfs, wakf‑al‑al‑aulad and debuttar are religious institutions within meaning of Art. 18 (b), Constitution of Pakistan and are protected, and therefore not acquirable under the Act (Ispahani, J., agreeing with Chowohury, J., Akbar, J., contra)‑Constitution of Pakistan, Art. 78 (b)‑Word "Denominations" includes individuals (Akbar, J. contra).

Per Ispahani. J., (agreeing with Chowdhury, J., after difference of opinion between Akbar, J, and Chowdhury, J.)‑

Wakfs including wakf al‑al‑aulad, are religious institutions within the meaning of Article 18 of the Constitution and, therefore, protected under that Article.

The framers of the Constitution, while using the expres sion 'religious institution' in clause (b), used it in the sense that is understood among Muslims, and not in a technical sense as understood in English Law. The expression 'every religious denomination and every sect thereof' includes also individuals and thus individuals as well as religious denomina tions and every sect thereof have the right to establish, maintain and manage its religious institutions.

(The above conclusion was arrived at irrespective of the opinion on the point of Their Lordships of the Supreme Court expressed in the order of remand in the case, which opinion was differently interpreted by the learned Judges‑Ispahani, J. and Cliowdhury J. holding that the point had already been determined by the Supreme Court, but Akbar, J., thinking that the point had not been so determined).

Per Akbar, J. (contra)‑

The dedications for the benefit of children and family contained in wakfs are not protected by Article 18 (b) of the Constitution and can be acquired under the East Bengal State Acquisition and Tenancy Act, 1950

Article 18 (b), as it stands, discloses an intention on the part of the Constitution‑makers to restrict the exemption for which it provides, to such religious institution in which a religious denomination has interest in the maintenance and management. In a dedication for the benefit of children, a religious denomination has no such interest and, as such. Article 18 (b) is not applicable to such a dedication.

There may be a dedication which, though a religious institution, may not be for the benefit of a religious denomina tion.

Mahamed Ismail Ariff and others v. Ahmad Moolla Dawood and anothers 43 I A 127 (134); Mahommedally Adamf Peet bhoy and others v. Akberally Abdul Hussain Adamji Peerbhoy and others 38 C W N 452 P C ref.

The question of faith and belief is protected by Article 18 (a) and Article 18 (b) protects an organization of the sect in pursuance of that belief. In other words, the right guaranteed under Article 18 (a) is an individual right whereas the right guaranteed under Article 18 (b) is a collective right of a religious denomination. Hence it may be stated that the question of creating wakf comes within Article 18 (a) which gives fundamental right to anyone to profess and practise his religion. Article 18 (b), however. contemplates establishment of certain organization by the religious denomination in accordance with their faith.

Wakf‑al‑al‑aulad ig a dedicatiqlj substantially for the benefit of the wakif's family. I fail to see how the question of its maintenance and management by a religious denomina tion arises.

Wakf is a religious institution, and wakf‑al‑al‑aulad is as much a wakf as wakf‑i‑lillah. Wakf‑al‑al‑aulad therefore is also a religious institution.

Dedications for the maintenance of mosques and dargahs are religious institutions within the meaning of Article 18 (b) of the Constitution.

Meer Mahomed Israil Khan v. Sashti Churn Ghose I L R 19 Cal. 112 and Bikani Mia v. Shuk Lai Poddar and another I L R 20 Cal. 116 (F. B.) ; Mahomed Ismail Ariff and others v. Ahmed Moolla Dawood and another 43 I A 127 (134) ; Mahommedally Adamji Peerbhoy and others v. Akberally Abdul Hussain Adamji Peerbhoy and others 38 C W N 452 P C

Per Chowdhury, J.

‑Wakfs including wakf‑al‑al‑aulad and debuttar are religious institutions within the meaning of Article 18 of the Constitution and therefore protected under that Article.

The framers of the Constitution, while using the expres sion "religious institution" used it in the same sense as understood by the citizens of Pakistan under their personal law and not in the technical sense of English Law where charity has got a meaning different from a charity, sadakah, under the Muslim Law or Hindu Law, and, by the expression "every religious denomination and every sect thereof" used by them, they mean every member of a religious denomination and every member of the sect thereof. They either individually or collectively will have the right to establish, manage and maintain their religious institutions.

Therefore, the properties of wakfs, wakf‑al‑al‑aulad and debuttar, which were religious institutions within the meaning of Article 18, cannot be acquired under the impugned Act viz East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951) to maintain the object of dedication.

Syed Ameer All's Muhammadan Law, Vol. I, 4th Edition. Chap. wakf.

Abdul Fata Mahomed Ishak and others v. Rasamaya Dhur Chowdhuri and others I L R 22 Cal. 619 (631); The State of Bombay v. Nai asu Appa Mali A I R 1952 Bom. 84 (92) ; The Commissioner, Hindu Religious Endowments, Madras v. Sri Shirur Mutt A I It 1954 S C 282 (288) ref.

(b) Constitution of Pakistan, Arts, 23 (2) & 25 (2) (d) ---‑

Courts not entitled to enquire whether State was carrying out its obligations with regard to organization of wakfs etc.

In view of Article 23 (2), Constitution of Pakistan, Courts are not entitled to enter into the question as to how far the State is carrying out its obligations in respect of organization of wakfs etc., under Article 25 (2) (d).

Hamidul Huq Choudhury, A. T. M. Mustafa, Anil Chandra Sarkar, R. K. Bhattacharjee. A. S. Choudhury and Afzalul Huq for Petitioners.

A. K. Brohi, A. F. M. Mesbahuddin, M. M. G. Hafez, and Abdus Sobhan for Respondents.

Dates of hearing before Akbar and Choudhry, JJ : 3rd to 5th July and 1st, 2nd, 5th, 9th and 13th August 1957.

JUDGMENT

AKBAR, J.--‑

These eight applications were filed under Article 170 of the Constitution for the issue of writs of mandamus or appropriate writs directing the Provincial Government to withdraw or rescind the notification issued under subsections (1) and (2) of section 3 of the East Bengal State Acquisition and Tenancy Act of 1950 (hereinafter referred to as the Act) and by which the Government purported to acquire certain wakf properties.

The petitioners challenged the validity of the aforesaid Act.

Seventy‑five other applications were also filed challenging the acquisition of the interests of rent‑receivers under the Act. All these 83 applications were heard together by a Special Bench of this Court. The Special Bench allowed 18 of those applications "in so far as they relate to acquisition of the khas possession of lands of rent‑receivers who claim to be rent‑receivers in respect of wakf and debuttar properties." They, however, dismissed the remaining 65 petitions.

Fifty‑nine of those petitioners, including the present petitioners, filed appeals to the Supreme Court against the judgment and order of the Special Bench.

The Supreme Court, after hearing those appeals, passed the following order :

"The result is that all the appeals are dismissed except Appeals Nos. 2‑D, 3‑D, 4‑D, 3, 13, 28, 31 and 34 of 1956, which are accepted to this extent that 'the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances."

Hence these applications have come up for hearing before us. They have been heard together at the request of the parties.

In the course of hearing of these applications, four matters arose for discussion and decision, namely :‑

(1) Whether the Supreme Court has decided that Wakf al‑al‑aulad is a religious institution

(2) If not, is dedication for benefit of the children a religious institution

(3) If dedication for benefit of the children is a religious institution, is it protected by Article 18 (b) of the Consti tution

(4) To what relief, if any; are the petitioners entitled

Upon the first point, the argument of the learned Advocates for the petitioners is that the Supreme Court has already decided that wakf‑al‑al‑aulad is a religious institution and Hence we are not entitled to enter into that question. In support of their argument, they have relied on the following passages from the judgment of the Supreme Court

"In their attack on the validity of acquisitions of rent receiving interests where the land was held under wakf, wakf‑al‑al‑auiad or debuttar, learned counsel for the appellants in cases where such property has been acquired have relied on the principle according to which ownership of wakf property, according to Muslim Law, vests in the Almighty, and in cases of debuttar, according to Hindu Law, in the deity, the mutwalli in the former cases and the shebait in the latter, not being a trustee, but a tnere superintendent or manager. Under clause (23) of section 2 of the Act, a "rent‑receiver" means a proprietor or a tenure‑holder, and includes a raiyat, and under raiyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands as have been let our, together with any 'building standing thereon and necessary adjuncts thereof, otherwise than in perpetuity. The 20th clause of the same section defines a "proprietor" as a person owning, whether in trust or for his own benefit, an estate or a part of an estate. The argument advanced on belief of this set of appellants is that, because mutwalli or shebat does not own either in trust or for his benefit the property dedicated, he is not a proprietor within the meaning of this clause and, therefore, not a rent‑receiver the definition of clause (23). Mr. Ray relies on the decision of the King's Bench Division in clobbins v. Middlexes County Council (LR (1949)1 KB 142) in support of the proposition that since The Legislature has defined a rent‑receiver, and that defini tion is not applicable to mutwallis or shebaits, the subsequent sections of the Act which permit the acquisition of interests in land which are held under wakf or debuttar are invalid. The case relied on stares no general principle, and, in fact, It is against Mr. Ray's contention because it was held therein that in case of apparent conflict between an interpretation clause and the operative provisions of an Act, the latter override the former. The question to be determined in the present cases is what is the true meaning of the words used by the Legislature and whether the acquisitions challenged were intended to fall within the expropriating provisions of the Act It may be conceded that neither a mutwalli nor a shebait is a trustee in the English sense of the term but the word "trust" in clause 20 of section 3 of the Act does not appear to have been used in its technical sense but in its ordinary sense and is wide enough to include the case of a mutwalli or a shebait who does not hold the property for his own benefit but for the benefit of a religious or charitable institution, the word "owning" in the clause being equivalent to "holding". This seems to be perfectly clear from the subsequent provisions of the Act which expressly provide for the acquisition of rent‑receiving interests in estates which are held under wakf or debuttar.

The next objection to the acquisition of such lands is founded on Article 18 of the Constitution which provides that ''subject to law, public order and morality, (a) every citizen has the right to profess, practise and propagate any religion ; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institutions." The point sought to be made is that the acquisition of wakf or debuttar lands which the Act permits interferes with the rights of Muslim citizens in the case of wakf and Hindu citizens in the case of debuttar to establish, maintain and manage their religious institutions. With a view to determining whether the Act infringes the fundamental right guaranteed by Article 18 of the Constitu tion, it is necessary to examine the relevant provisions of the Act in so far as they relate to the acquisition of rent receiving interest in such estates and the dispossession of persons whose duty under their personal law is to maintain and manage the religious institutions with the income of such properties. As I have held that a mutwalli or a shebait is included in the definition of the word "proprietor it follows that he is also a rent‑receiver within the meaning of clause (23) of section 2. Now, on the making of a notification under subsection (1) of section 3, all the interests of rent‑receivers who fall in this category vet absolutely in the Provincial Government, that is to say; by operation of the Act, this class of rent‑receivers is divested of their interests in the land which, whether they vested in the Almighty or a deity or for the purposes of the Act in the mutwalli or the shebait, are from the date of the notification transferred absolutely to the Provincial Government. And under subsection (5) of section 3, the out‑going mutwalli or shebait becomes entitled to compensation as provided in the Act. Subsection (3) of section 37 directs that where the net income or any portion of the net income in respect of any estate, tenure, holding or tenancy wholly or partly held under wake, wakf‑al‑al‑aulad, debuttar or any other trust or legal obligation has been dedicated and applied exclusively to charitable or religious purposes without any reservation of pecuniary benefit for any individual, the compensation payable for the acquisition of the interests of any rent‑receiver in respect of the net income or the portion of the net income so dedicated and applied shall, instead of being assessed under clause (1), be assessed in the prescribed manner as a perpetual annuity, equal to such net income or portion of the‑net income, as the case may be. Thus the first effect of the acquisition of wakf or debuttar property is that while the Provincial Government becomes owner of the corpus of the property, equal to the net income or a portion of the net income of the property. This, however, is subject to the important qualification that the net income or portion of the net income of the estate must 'not only have been dedicated but exclusively applied to charitable or religious purposes and without any reservation of pecuniary benefit for any individual. From this, two further consequences follow : First, the pecuniary benefit which may have been reserved by the creator of the wakf for his descendants, or for himself, as under the Hanafi Law, is completely wiped out ; and second, a mere breach of trust by the mutwalli or the shebait in not applying, as directed by the dedicator, the income of the property to religious or charitable purposes causes the income so misappropriated to cease to be available for such purposes. Thus wakf‑al‑al‑aulad are directly hit by this provision as well as other religious or charitable institutions if their manager has not been apply ing the income of the property to the objects to which it was intended by the dedicator to be applied. Similarly, where acquisition has been effected in the alternative manner detailed in Chapter V, namely, by preparation of a record‑of‑rights and compensation assessment rolls, the rent‑receiver becomes liable to be dispossessed of all lands in his khas possession except a 100 standard bighas of land or 10 standard bighas per member of the family, whichever is greater. In such cases, by reason of subsection (5) (i) (c) of section 20, a rent‑receiver in possession of wakf, wakf‑al‑al‑aulad or debuttar lands as are exclusively applied to religious or charitable purposes without reservation of pecuniary benefit for any individual cannot be dispossessed, but the result here is just the same because what is exempt ed is land, the income from which is exclusively applied to religious or charitable purposes without reservation of pecuniary benefit for any individual. And where the income from the land held under any wakf, wakf‑al‑al‑aulad or debuttar is partly dedicated for religious or charitable purposes and partly reserved for the pecuniary benefit of any individual, under sub‑clause (ii) of subsection (5) of section 20, only such portion of the lands, as may be selected in accordance with the rules to be made in this behalf by the Provincial Government, comes within the exemption. There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution 7 In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are "subject to law" and may, therefore, be taken away by the law, succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who, in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Sunnah, could not possibly have intended to empower the Legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institu tions, and who, in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non‑Muslim citizens of the State. If the argument of Mr. Brohi is sound, it would follow, and he admitted that it would, that the Legislature may today interdict the profession of Islam by the citizens because the right to profess, practise and propagate religion is under the Article as much subject to law as the right to establish, maintain and manage religious institutions. I refuse to be a party to any such pedantic, technical and narrow construction of the Article in question, for, I consider it to be a fundamental canon of construction that a Constitution should receive a liberal interpretation in favour of the citizen, especially with respect to those pro visions which were designed to safeguard the freedom of conscience and worship. Consistently with the language used, constitutional instruments should receive a broader and more liberal construction than statutes, for, the power dealt with in the former case is original and unlimited and in the latter case limited, and constitutional rights should not be permitted to be nullified or evaded by astute verbal criticism, without regard to the fundamental aim and object of the instrument and the principles on which it is based, If the language is not explicit, or admits of doubt, it should be presumed that the provision was intended to be in accordance with the acknowledges principles of justice and liberty. Accordingly, in doubtful cases, that particular construction, should be preferred which does not violate those principles. In the light of these rules of construction of constitutional instruments, it seems to me that what Article 18 means is that every citizen has the right to profess, practise and propagate his religion and every sect of a religious denomination has the right to establish, maintain and manage its religious institutions, though the law may regulate the manner in which religion is to be professed, practised and propagated and religious institu tions are to be established, maintained and managed. The words "the right to establish, subject to law, religious institutions" cannot and do not mean that such institutions may be abolished altogether by the law. Speaking of the right of political franchise, Chief Justice Shaw of the Supreme Judicial Court of Massachusettes remarke in Coven v. Foster (12 Pick 485‑488)

That in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is, clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly and convenient manner . . . . . . Nevertheless, such a construction would afford no warrant for such an exercise of legislative power, as under the pretence and colour of regulating, should subvert or injuriously restrain the right itself.

This principle is, in my opinion, fully applicable to the interpretation of the extent of religious freedom recognized by Article 18 of our Constitution. That Article, inter alia guarantees the right to establish, maintain and manage religious institutions but concedes to the Legislature the power to regulate the manner in which such institutions may be established, maintained and managed. It does not, however, empower the Legislature to make a law that hereafter no institutions of a religious character shall be established, maintained or managed or that an existing religious institution shall be abolished. The Article appears to me to proceed on the well‑known principle that while Legislature may not interfere with mere profession or belief, law may step in when professions break out in open practices inviting breaches of peace or when belief, whether in publicly practising a religion or running a religious institution, leads to overt acts against public order. In the present case, no question of law and order being involved, I am constrained to differ from the view taken of this fundamental right by the High Court.

The learned Advocates for the petitioners have laid great stress on the following sentences occurring in the above quoted passage

"Thus wakf‑al‑al‑aulad are directly hit by this provision as well as other religious or charitable institutions if their manager has not been applying the income of the property to the objects to which it was intended by the dedicator to be applied.

There can be no doubt that these drastic provisions of the Act strike religious institution at their very root, and the question is whether, that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution."

On the other hand, Mr. Brohi, the learned Advocate for the respondents, has contended that the question for decision before the Supreme Court was "whether acquisition of wakf or debuttar land, which the Act permits, interferes with the rights of Muslim citizens in the case of wakf to establish and manage their religious institutions", and his argument before the said Court was that the rights referred to in Article 18 of the constitution were "subject to law" and therefore might be taken away by the law was not accepted and their Lordships held (1) that wakf properties can be acquired, and (2) that only such dedication which is for religious institutions will be exempted by Article 18 (b) of the Constitution. I uphold this contention of Mr, Brohi. From the first paragraph of the passage quoted above as well as from the remand order, it is clear that their Lordships held the wakf can be acquired under the provisions of the East Bengal State Acquisition and Tenancy Act of 1950. Their Lordships then proceeded to consider the objection of Mr. Brohi which was founded on Article 18 (b) of the Constitution. It was contended by the appellants that the acquisition of wakf which the Act permits. interferes with the rights of Muslims to establish, maintain and manage their religious institutions. Their Lordships, after examining the different provisions of the Act, came to the conclusion that Article 18 (6) guarantees the right to establish maintain and manage religious institutions and that the High Court decision on this point was not correct.

The learned Advocates for the petitioners have relied on two sentences quoted in prepage to show that their Lordships had decided that wakf‑al‑al‑aulad was a religious institution, Here I shall merely observe that these sentences must be read along with the context in which they occur.

From the judgment, it appears to me that the question, whether wakf‑al‑al‑aulad is a religious institution was never raised before the Supreme Court, and hence their Lordships had no occasion to decide that question. Furthermore, the order of remand namely "that the High Court was to deter mine as to what extent the dedications involved in them come within the definition of religious institutions" leaves no room for doubt that their Lordships left the decision of the question, whether a particular dedication is a religious institution or not, to the High Court.

The learned Advocates for the petitioners, realising this difficulty, attempted to interpret the remand order to mean that the High Court should only consider the validity of the dedications involved in these wakfs. I am, however, unable, to accept this interpretation. The language of the order is very clear and I see no justification from departing from the simple and ordinary construction of the order.

Now, I take up the second point which raises a question of considerable importance, namely, whether a dedication for the benefit of children is a religious institution. A great many cases were cited by the learned Advocates for the petitioners to show that such dedications are valid in law. As none of these cases bear directly upon the present point, I have not referred to them. Mr. Brohi has also not challenged the validity of the wakfs under consideration.

The question here is whether dedication for benefit of the children is a religious trust. The learned Advocates for the petitioners have argued that it is so, because, first, it is an act of piety, and, secondly, that ultimate benefit is reserved for charity. They have relied on the following passages from the translations of the Holy Quran by Allama Abdullah Yusuf Ali, page 69, Verse 177‑--

"It is not righteousness,

That ye turn your faces

Towards East or West ;

But it is righteousness

To believe in God

And the Last day,

And the Angels,

And the Book,

And the Messengers ;

To spend your substance

Out of love for Him,

For your kin,

For orphans,

For the needy,

For the way farer,

For those who ask,

And for the ransom of slaves ;

To be steadfast in, prayer,

And practise regular charity ;

To fulfil the contracts

Which ye have made ;"

Page 1161, Verse 29‑

"Those who rehearse the Book

Of God,establish regular prayer,

And spend (in Charity)

Out of what We have provided

For them, secretly and openly,

Hope for a Commerce

That will never fail"'

They have also relied on the judgment of Ameer Ali. J., in Meer Mahomed Israd Khan v. Sashti Churn Ghose (I L R 19 Cal. 112) and in Bikani Mia v. Shuk Lai Poddar and another (I L R 20 Cal. 116 (F.B.)), Mr. Brohi's argument is as follows : No doubt it is true that the basis of Muhammadan Law is religion, but from this it cannot be said that everything which can be legal under the personal law of the Muslims, on that account alone, should be treated as religious institution. To read the religious institution in that way will make Article 18 an effective shield against possibility of any legislation taking place with reference to the personal law of the various religious sects. It would also involve the acceptance of the conclusion that the persona] law of the Muslims is incapable of being legislated upon. The wakf is merely a form of disposition of property just like gift.

Now, Muhammadan Law attempts to create an equilibrium between religious ideal and actual practices. This accounts for the religious character of Quranic legislation. The Holy Prophet became the law‑giver on the religious basis. The aim of the Prophet was not to create a new system of law but it was to teach men how to act, what to do and what to avoid in order to pass the reckoning on the Day of Judgment. The Prophet, therefore, applied religious and ethical principles to' the legal norms and relationship, as he found them. Hence Sunnah became one of the central concepts of Muhammadan Law. For the above reasons, the whole sphere of Muslim Law has been permeated with religious and ethical standards appropriate to Islam. I think Mr. Brohi's apprehension that treating wakf as a religious institution would mean that the personal law of the Muslims cannot be legislated upon is not well‑founded. How far the personal law of Muslims can be legislated upon has been dealt with by Allama Iqbal in his book on "The Reconstruction of Religious Thought in Islam". At page 167, the learned Author says

"Turning now to the ground‑work of legal principles in the Quran, it is perfectly clear that far from leaving on scope for human thought and legislative activity the intensive breadth of. these principles virtually acts as an awakener of human thought. Our early doctors of law taking their cue mainly from this ground‑work evolved a number of legal systems ; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors. 'Next to the Romans', says Von Kremer, there is no other nation besides the Arabs which could call its own a system of law so carefully worked out.' But with all their comprehensiveness, these systems are after all individual interpretations, and as such, cannot claim any finality. I know the ulemas of Islam claim finality for the popular schools of Muhammadan Law, though they never found it possible to deny the theoretical possibility of a complete ijtihad. I have tried to explain the causes which, in my opinion, determined this attitude of the ulemas ; but since things have changed and the world of Islam is today confronted and affected by new forces set free by the extraordinary development of human thought in all its directions'. I see no reason why this attitude should be maintained any longer. Did the founders of our Schools ever claim finality for their reasonings and inter pretations Never. The claim of the present generation of Muslim Liberals to re‑interpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life, is, in my opinion, perfectly justified. The teaching of the Quran that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems".

The Author again says at page 173

"The growth of republican spirit and the gradual forma tion of legislative assemblies in Muslim lands constitute a great step in advance. The transfer of the power of ijtihad from individual representative of Schools to a Muslim legislative assembly which in view of the growth of opposing sects, is the only possible form ijma can take in modern times, will secure contributions to legal discussion from laymen who happen .to possess a keen insight into affairs. In this way alone we can stir into activity the dormant spirit of life in our legal system, and give it an evolutionary outlook". .

I respectfully agree with the above observations of Allama Iqbal. I therfore, think that Mr. Brohi has no real cause of apprehension. In my opinion, the Legislature can always legislate regarding personal law of the Muslims, but, while legislating, they should keep in view religious and basic principles of Islam.

I now proceed to consider if this law of wakf‑al‑al‑aulad is based on religious principles of Islam. There can be no doubt that these rules, which deal with the fundamentals of Islam, such as salat, zakat, haj and roza are governed by the injunctions contained in the Quran. Thus zakat, which is a form of charity, is obligatory. The Holy Quran is also full of injunctions on the subject of charity. It not only lays stress on good deeds of Charity such as emancipation of slaves, feeding of poor and taking care of all orphans but also speaks in the same strain regarding feeding of kith and kin. Now, these which are voluntary charities are called sadakahs. Mr. Brohi has contended that "to give a smile to a neighbour" and "to remove anything from the road which' may cause hurt" are also called sadakahs; but these cannot be considered as a part of the religion. Mr. Brohi seems to minimise, if not destroy, the practical importance of charity.

For full appreciation of the word Sadakah, I shall quote the following passage from Ameer Ali's Muhammadan Law, Vol I, page 213

"The word sadakah occurs so frequently in works bearing with Muhammadan Law, and, as such, an important apprehension of its meaning is necessary to a proper under standing of the rules relating to dedications in the Islamic System.

Richardson in his Dictionary translates it as meaning an "alms gift" and also as "property dedicated to pious uses". Hamilton, the translator of the Persian version, of the Hedayah, evidently thought that the word meant alms', to the poor, and this error has influenced all subsequent conceptions.

As a matter of fact, the word sadakah has a much larger meaning in the Mussalman system. It means, properly speaking, a pious act :‑--'a smile in a neighbour's face is sadakah ; to help the weary is sadakah .' Probably, the only expression by which it can be construed is the word Charity in its broadest sense.

In the Mussalman Law, however, it means an offering or gift made with the object of obtaining the approval of the Almighty or a reward in the next World. For example, a present to a friend is not a sadakah because there is no pious intention. But if a gift be made with the object of relieving his wants or to provide against his falling into indigence, it is a sadakah. A donation, therefore, with the object of obtaining the reward or approbation of the Almighty is a sadakah. If the purpose itself is pious, whether the gift is made primarily with the intention of obtaining the Almighty's reward or not, still it is sadakah, for the Almighty will bless the act whether the person doing it did it with that motive or not. For example, the making of a provision for one's self or for one's children against future want, is a pious act. If one makes such a provision, the Almighty will bestow His reward even if the person did not at the time think of such reward. As a matter of tact, among Mussalmans, no dedication is created, or offerings made, without the intention (niat) being formulated in the mind : 'I do this with the object of approaching the Almighty'."

The learned Author, after quoting various authorities, says :‑

"It will be seen from these authorities, which are regarded as binding on the whole Sunni world, that provision for one's family and descendants is an absolute act of charity".

Now, the illustrations cited by Mr. Brohi are no doubt as much a good deed as making a wakf, but the difference between the two is that the object of one, namely, to give a smile to a neighbour is to please the neighbour, whereas the object of wakf is to give the property in the custody of God for the benefit of humanity. Hence, though both doing a good deed and wakf are sadakahs, but there is a vast difference between the two, because one is for personal satisfaction and the other is for spiritual gain.

We find that when giving the fundamentals of Faith, the Quran often couples with it doing of good deeds. It means that mere profession of faith in words or a vague intellectual way is not enough. The charity for the poor, orphens and kith and kin enjoined by the Quran was given a shape of wakf by the Prophet. Hence, Mr. Ameer Ali at page 309 of his Mahomedan Law, Volume I, observes :‑

"The institution of wakf, in which the endower's family and descendants are the immediate recipients of the bene faction, owes its origin to the direct ordinances of the Prophet. Not only did he declare that a provision for one's family was the best of alms‑giving, but he also encouraged members of his household and his companions to create such wakfs, and himself set the example by consecrating certain lands at Khaibar. As I have said before, in dealing with the Mussulman Law, the meaning attached by Mussalmans to the words 'charitable purpose' has been, unfortunately, often lost sight of. Charity has been cons trued to mean 'charity to the poor', irrespective of the endower and his desendants; and piety and religion to mean such acts as would, in practical Europe, be regarded as pious or religious. This is not the Mussalman Law, which will be best explained by the following passages from the Miskhat showing what the Prophet considered 'piety' and charity' to mean :‑

"The Apostle of God said: 'When a Mussalman bestows on his family and kindred, hoping for reward in the next World, it becomes alms, although lie has not given to the poor, but to his family and children . . . . . ' The Apostle of God said : There is one dinar which you have bestowed in the way of God and another in. freeing a slave, and another in alms to the poor : and anotner given to your family and children, that is the greatest dinar in point of reward, which you gave to your family, 'The Apostle of God said : 'The most excellent dinar which a man bestows is that which he bestows upon his own family, and a dinar which is spent upon quadrupeds in the way of God, and a dinar which a man‑bestows upon his friends in the way of God. Ummi Salma says: 'I said to the Prophet : 'Is there any good tidings for me of rewards for my bestowing on the sons of. Abu Salina His sons are no otherwise than mine . . . . . ' The Prophet said : 'Then give to them, and for you are the rewards of what you bestow upon them"'.

"The Apostle of God said : 'Giving alms to the poor has the reward of one alms, but that given to kindred has two rewards ; one, the reward of alms, the other, the reward of relationship . . . . ' ".

The learned Author also points out in his book that the expression "charitable purpose" has a wider significance in Mahommedan Law and religion than in any other religion. This learned Author has, therefore, taken the view that wakf al‑al‑aulad can be regarded as a religious institution. The said Author, as a judge of the Calcutta High Court, had occasion to deal with a similar question in the case of Bikani Mia v. Shuk Lal Poddar and another. At page 145, he observes :‑

From the promulgation of Islam up to the present day, there has been an absolute consensus of opinion regarding the validity of wakfs on one's children, kindred and neighbours. Practical lawyers, experienced judges, high officers of every sect and School under Mussulman sovereigns are all in unison on this point. There are minor differences, viz., whether a wakf can be created for one's self,, whether the unfailing object should be designated, whether the property should be partitioned or not, whether consignment is necessary or not ; but so far as the validity of a wakf constituting one's family or children, the recipients of the benefaction, in whole or in part, is con cerned, there is absolutely no difference. A wakf is a permanent benefaction for the good of God's creatures ; the wakf may bestow the usufruct but not the property, upon whomsoever he chooses, and in whatever manner he likes; only it must endure for ever. If he bestows the usufruct in the first instance upon those whose maintenance is obligatory on him, or if he gives it to his descendants so long as they exist to prevent their falling into indigence, it is a pious act, more pious, according to the Prophet, than giving to the general body of the poor. He laid down that one's family and descendants are fitting objects of charity, and that to bestow on them and to provide for their future subsistence is more pious and obtains greater 'reward' than to bestow on the indigent stranger. And this is insisted upon so strongly that when a wakf is made for the indigent or poor generally, the proceeds of the endowment is applied to relieve the wants of the endower's children and descendants and kindred in the first place (see Baillie's Dig., 2nd Edition page 593). When a wakf is created consti tuting the family or descendants of the wakif, the recipients of the charity so long as they exist, the poor are expressly or impliedly brought in not for the purpose of making the wakf charitable (for, the support of the family and descen dants is a part and parcel of the charitable purpose for which the dedication is made), but simply to impart permanency to the endowment. When the wakif's descen dants fail, it must come to the poor. So, it is an enduring benefaction‑an act of ibadat or worship, to use the language of the Jawahir‑ul‑Kalam,‑an act by which kurbat or "nearness" is obtained to the Deity, according to the Bahr ur‑Raik".

I respectfully agree with the above observations of the learned judge. 1, therefore, hold that this institution of wakf, which is really based on religion, is a religious institution. Here I would like to observe that wakf al‑al‑aulad is as much a wakf as a wakf‑i‑lillah. Because of the decision of the Judicial E Committee in Abdul Fattah's case, the Government had to pass. The Mussalman Wakf Validating Act of 1913. This Act of 1913 does not effect change in the law but simply states what the Muslim law is. Hence wakf‑al‑al‑aulad should also be regarded as a religious institution.

Some argument was advanced that a Muslim's right to profess his religion is infringed if the wakf property is com pulsorily acquired. I am unable to accept this argument. I fail to see how the acquisition of the wakf property interferes with the right of a Muslim to profess his religion. The Supreme Court has already held that wakf property call be acquired and hence I do not propose to deal with this question further.

I now take the third point, namely, whether a dedication for the benefit of the children is a religious institution within the meaning of Article 18 (b) of the Constitution.

Envisaging Article 18 (b), its design would appear to be to protect religious institutions. 1t is by no means easy to give a definition of the word 'Institution' that will cover every use of it. Its meaning must always depend on the context in which it is found.

Article 18 of the Constitution provides

"Subject to law, public order and morality.‑(a) every citizen has the right to profess, practise and propagate any religion; and

(b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institution".

Did the Constitution‑makers intend that every human activity connected with religion was to be protected That such was not the intention of the Constitution‑makers is apparent from the expressions 'religious denomination' and 'religious institu tions' occurring in Article 18 (b). The word 'denomination' has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under the same name ; a religious sect or body having a common faith and organization, and designated by a distinctive name". Further, the dictionary meaning of the word "manage" is "to govern a thing, command, control or conduct". Hence these words indicate that there should be ail organization and not a mere concept. It seems to me that what is contemplated by the expressions used in Article 18 (b) is something different from the right to practise religion. I am, therefore, unable to accept the contention of the learned Advocates for the petitioners that the concept of wakf is protected by Article 18 (b). The question of faith and belief is protected by Article 18 (a) acid Article 18 (b) protects an organization of the sect in pursuance of that belief. In other words, the right guaranteed under Article 18 (a) is an individual right whereas the right guaranteed under Article 18 (b) is a collective right of a religious denomination. Hence it may be stated that the question of creating wakf comes within Article 18 (a) which gives fundamental right to anyone to profess and practise his religion. Article 18 (b), however, contemplates establishment of certain organization by the religious denomination in accordance with their faith.

Now wakf‑al‑al‑aulad is a dedication substantially for the benefit of the wakif's family. These petitions have been filed by the mutwallis or the beneficiaries. I fail to see how the question of its maintenance and management by a religious denomination arises. No doubt, in a broad sense, the Muslim community may have indirectly some interest in the pre servation of wakf‑al‑al‑au lads. It may be said that property leads to sufferings and on humanitarian grounds the Muslim Community may have distant and theoretical interests in pre venting sufferings. There is, when one comes to think of it, scarcely any measure of benefit to any particular individual in which some argument could not be adduced on the line that a community has an interest, but yet it would be difficult to contend that the Muslim community has a right to maintain and manage any of these particular wakf‑al‑al‑aulads. The Muslim public has not the least interest in whether the individual members of the wakif's family are poor or rich or whether they live in comfort or they do not. Here I may observe that Muslim Law makes a distinction between a public wakf and a private wakf. This is clear from the following observations of the Judicial Committee in the case of Mahomed Ismail Ariff and others v. Ahmed Moolla Dawood and another (43 1 A 127 (1341)) :‑

"The Mussulman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian system is taken by the Civil Court, has, in carrying the trust into execution, to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public, religious or charitable trusts of which a public mosque is a common and well‑known example, the Kazi's discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction ; but as regards management, which must be governed by circumstances, he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of manage ment which he may find either not practicable or not in the best interests of the institution".

This passage was also quoted with approval by the Judicial Committee in Mahommedally Adamji Peerbhoy and others v. Akberally Abdul Hussain Adamji Peerbhoy and others (38 C W N 452 P C) From the above decision, it is clear that the dedication for the benefit of an individual is not a dedication rot public purpose. I, therefore, think that there may lie a dedication which, though a religious institution, may not lie for the benefit of a religious denomination. For example, would a provision in the wakfnama that a certain amount should be paid to a particular individual for performing haj will be a dedication for the benefit of a religious denomination I consider not. No one will say that haj is not a religious institution but the 'community or sect has no concern whether that particular person performs the haj or not. Similarly, a wakif may dedicate certain property for reading the Quran for the benefit of his departed ancestors. This may be regarded as a religious institution but it will be difficult to say that the community has an interest in that institution.

I have given these illustrations because they do promote an enquiry whether in any reasonable sense a purpose which is designed only to assist an individual can be regarded as a purpose for the benefit of a religious denomination. 1 have already said that they will not. I, therefore, think that a dedication for the benefit of the children of the wakif cannot be regarded as an institution in which a religious denomination has any interest.

I think Article 18 (b), as it stands, discloses an intention on the part of the Constitution‑makers to restrict the exemption, for which it provides, to such religious institution in which a religious, denomination has interest in the main tenance and 'management. I hold that, in dedication for the benefit of children, a religious denomination has no such interest and, as such, Article 18 (b) is not applicable to such, a dedication. Had the Constitution‑makers intended to, protect each and every religious institution, which is for the benefit of individuals, nothing would have been easier than to say so. The language of Article 18 (b), however, clearly shows that that was not the intention of the Constitution makers.

The learned Advocates for the petitioners have drawn my attention to sub‑clause (d) of clause (2) of Article 25 of the Constitution which provides that the State will endeavour ''to secure the proper organization of zakat, wakfs and mosques". It has been argued that the proper organization of wakfs means maintenance of wakfs, but the Government, by acquiring wakf‑al‑al‑aulads, is destroying the said wakfs. This Article appears in Part III under the heading "Directive Principles of State Policy". Further, Article 23 (2) of Part III provides

"The State shall be guided in the formulation of its policies by the provisions of this Part, but such provisions shall not be enforceable in any Court".

Hence, in view of the above provisions, I am not entitled to enter into the question as to how far the State is carrying' out their obligations.

I shall, however, like to observe that this wakf‑al‑al‑aulad, which survived the onslaught of the decision of Lord Hobhouse in Abdnl'Fattah's case through the help of Ameer Ali, J., and the Quaid‑e‑Azam, is again faced with total annihilation. It is for the Legislature to consider whether it will be content with what the religious law is prepared to leave to it or would itself determine the sphere which is to be left to the religious law and restrict it or modify it according to its own requirements. I would, however; like to observe that Muslims cannot get away from the deeply‑ingrained concept that wakf for the benefit of children is a religious institution and this, therefore, has become art essential part of the Muslim outlook. I am to interpret the law as it stands and, therefore, I am not entitled to enter into the question of the policy of a particular legislation. I accordingly hold that the dedications for the benefit of children and family contained in these wakfs are not protected by Article 18 (b) of the Constitution and call be acquired under the East Bengal State Acquisition and Tenancy Act, 1950.

Now, I take up the last point : To what relief, if any, the petitioners are entitled. When these petitions were beard by the Special Bench, the learned Advocate for the Govern ment conceded that these notifications in respect of the khas lands of the wakfs were not made in accordance with the provisions of the Act. Hence the Special Bench allowed these applications and ordered for cancellation of the said notifications. The Supreme Court has, however, set aside the said order and has asked us to determine to what extent the dedications involved in them are religious institutions within the meaning of Article 18 of the Constitution. I shall. there fore, now consider how far the dedications contained in these wakfs are religious institutions within the meaning of Article 18 of the Constitution. Before dealing with these different wakf s, I would like to observe that the learned Advocates for the parties confined their arguments to the question as to whether a dedication for the benefit of the wakif's descendants and family is a religious institution within the meaning of Article 18. It seems to me that they have not challenged dedications for other religious and charitable purposes because those dedications have been given sufficient protection by sub‑clause (5) of section 20 of the Act.

(1) Writ Petition No. 17 of 1956 : This petition relates to the following Wakfs.‑

(1) Khairunnessa Khanum Wakf.

(2) Shamsunnessa Khatun Wakf.

(3) Majemuddin Ali Khan Wakf.

(4) Abdul Hakim Khan Wakf.

(5) Raushan Khatun Choudhurani Wakf.

(6) Abdul Aziz Khan Wakf.

(7) Sir A. K. Ghuzanavi Wakf.

(8) Pir Shahenshah Wakf.

Kasirunnessa Klianam Wakf provides for the maintenance of a mosque at village Charan.

Majemuddin Ali Khan Wakf provides for the maintenance of mosques at Pakulla, Dilduar and Atia.

Abdul Hakim Khan Wakf provides for the maintenance of mosques at Dilduar, Pakulla and Charan,

Raushan Khatun Choudhurani Wakf also provides for the maintenance of mosques at Pakulla and Dilduar.

Pit Shahenshah Wakf provides for the maintenance of a dargah and for the Annual Urs.

Sir A. K. Ghuznavi Wakf provides substantially for the maintenance of the wakif's family.

Furthermore, there are provisions in these wakfnamas for performance of various ceremonies such as Bakrid Ramzan and Muharram and for the feeding of the poor and the orphans.

(2) Writ Petition No. 32 of 1956 : This petition is with regard to Ershad Ali Choudhury Wakf of Chittagong. It provides for the maintenance of a mosque, dargah and of other charities. Some benefit is also given to the family.

(3) Writ Petition No. 67 of 1956 : This petition relates to Enayet Hossain Choudury Wakf of Faridpur. In this wakf, there is a provision for the maintenance of a mosque. There are also directions for performance of various religious ceremonies and other charities.

(4) Writ Petition No. 28 of 1956 : This petition relates to this Wakf Estate of Khan Bahadur sheikh Obaidullah, Khan and others This wakf provides for the maintenance of four mosques, three at Mirsharai (Chittagong), one at Katalgani. There is also a direction for establishment of mosques at Namabazar and at Soabil at Fatikchhari. Like other wakfs, there are also provisions for religious ceremonies and other charities.

(5) Writ Petition No. 62 of 1956 : This petition relates to Syed Hasan Ali Wakf. This wakf provides for the main tenance of two mosques. There is also provision for performance of ceremonies and other charities.

(6) Writ Petition No. 14 of 1956 : This petition relates to Muhammad Ibrahim Shah Chowdhury Wakf. There are provisions for the maintenance of mosques, family and charity.

Mosques and Dargahs :

In all these six wakfs, there are provisions for the main tenance of mosques. Further, some of the wakfs also provide for the maintenance of dargahs. In my opinion dedications for the maintenance of mosques and dargahs are religious, institutions within the meaning of Article 18 (b) of the Constitution.

Other Charities and Religious Ceremonies : ,

These wakfs also provide for the performance of various religious ceremonies and for other charities. I did not receive much assistance from the learned Advocates with regard to these dedications. On the materials before me, it is not possible to decide whether all or any of them should also get the protection of Article 18 (b). The petitioners, however, will be at liberty to agitate this question later if they so desire.

I, however, find that the notifications for acquisition of khas lands of these wakfs were not published in accordance with the provisions of the Act. The Government have not followed Rules 26 and 37. Furthermore, the exceptions have not been mentioned in the notifications as required in Form No. IIB. I shall, therefore, allow these six petitions (Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956) so far as they relate to the acquisition of the khas lands of the wakls. I accordingly direct that the notifications for acquisition of khas lands of the above‑named wakfs be rescinded and be not given effect to. I shall reject the other prayers in these petitions.

(7) Writ Petition No. 18 of 1956 (Re : Wajed Ali Khan Pani Wakf).

(8) Writ Petition No. 22 of 1956 (Re : Hyder Ali Khan Pani Wakf).

In these two wakfs also, the dedications for maintenance of mosques will get protection under Article 18 (b) of the Constitution. While dealing with the other wakfs, I have stated the reasons why I am unable to give the same protection to other charities and religious ceremonies, I am, however, unable to give these petitioners any relief tot the following reasons. It seems that by Notification No. 8717 L.R., dated 28th May 1955, issued under section 3 of the Act the Government acquired part of the wakf of Wajed Ali Khan Pani. The Mutwalh filed a suit, being Title Suit No. 89 of 1956 in the 2nd Court of the Subordinate Judge Mymensingh, for a declaration that the said Notification was null and void and of no legal effect.

Similarly, the Mutwalli of Hyder Ali Khan Pani Wakf filed T. S. No. 75 of 1955 for a declaration that Notification No. 434 L. R., dated 7th January 1955, issued by the Govern ment under section a of the Act for acquisition of the said wakf properties was bad in law. Both these suits, T. S. 59 and T. S. 89, which were heard together were decreed on 29th June 1951, that is, after the remand order by the Supreme Court. As there is likelihood of two contradictory judgments and orders, one by the High Court and another by the Sub ordinate Court, in respect of the same wakf, it will not be proper to give the petitioners any relief in these cases. They can agitate this question in a separate suit if they so desire.

In the result, I shall allow Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956 and make the Rules absolute to the extent indicated above. The petitioners will be entitled to one set of costs which I assess at fifty Gold Mohurs.

I shall, however, dismiss Writ Petitions Nos. 18 and 22 of 1956 and discharge the Rules without any order as to costs.

CHOWDHURY, J.‑

On the 13th of April 1956, 83 petitions for writ of mandamus or in the nature of mandamus were moved in the High Court of Dacca against the Provincial Government of East Pakistan and others for directing them to withdraw or rescind the notifications issued under sub sections 1 and 2 of section 3 of the East Bengal State Acquisition and Tenancy Act of 1950 (East Bengal Act No. XXVIII of 1951), as amended by East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), acquiring all interests of all rent‑receivers and all khas‑lands of such rent‑receivers in the districts mentioned in the notifications from the 14th of April, 1956.

These petitions, except some, were heard by a Full Bench of this High Court consisting of three judges, who repelled all the constitutional objections to the notifications but in the petitions which were directed against the acquisition of lands iii khas possession of mutwallis of wakf and shebaits of debuttar properties, rules nisi issued were made absolute on the ground that the notifications issued in respect of them contravened the provisions of section 20 of the Act. Those writ petitions that were ‑not heard by the Full Bench were heard by another Division Bench of this Court but the decision therein followed the decision of the Full Bench.

The rent‑receivers in some of these writ petitions, 59 in number, being dissatisfied with the judgment of the High Court, after obtaining a certificate under clause (1) of Article 157 of the Constitution, appealed to the Supreme Court of Pakistan oil the ground that their objections against the notifications were wrongly decided.

The Provincial Government of East Pakistan did not appeal against the decision of the High Court in cases where rules nisi were made absolute as to the khas lands of the mutwalh and shebaits. So, the appeals before the Supreme Court, in these cases, were limited not only to rent‑receiving interests but also all interests of rent‑receivers.

In 8 out of these 59 appeals, namely, appeals No. 2/D, 3/D, 4/D, 3, 13, 28, 31 and 34 of 1956, arising out of Writ Petitions Nos. 22, 62, 18, 14, 17, 67, 32 and 34 of 1956, res pectively, the acquisition of rent‑receiving interests as well as all interests of rent‑receivers in lands held in wakf is questioned.

Their Lordships of the Supreme Court of Pakistan, in those eight appeals, have differed from the view taken by the High Court of Dacca holding that "these drastic provisions of the Act" strike religious institutions like wakf, wakf‑al al‑aulad and debuttar at their very root, which constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution and that the expression "subject to law" in Article 18 of the Constitution does not mean that the funda mental rights guaranteed to the citizens of Pakistan to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions can be taken away or infringed by law ; what it means is that in professing, practising and propagating their religion or running religious institutions, if they break out in open practices inviting breach of peace or lead to overt acts against public order, it can be regulated by law.

Therefore, Their Lordships have allowed these eight appeals and remanded these cases to the High Court for determining the question as to what extent the dedications involved in them come within the term of religious institution and pro tected under Article 18 of the Constitution and for granting

such relief as the Court in its discretion may consider to be appropriate in the circumstances of each case.

The order of remand is as follows :‑

"The result is that all the appeals are dismissed except Appeals Nos. 2/D 3/D, 4/D, 3, 13, 28, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances".

I have quoted the whole of the order of remand because there is a dispute as to the scope of enquiry by this Court under the order of remand.

On behalf of the petitioners, it is contended that wakf, wakf‑al‑al‑aulaa and debuttar in general, true to the sense of those terms under the Muslim Law and Hindu Law, as the case may be, are religious institutions and they are held by the Supreme Court to be so within the meaning of clause (b) of Article 18 of the Constitution and, as such, are protected but the Supreme Court has sent these eight appeals on remand to the High Court only to see to what extent dedications involved in each of them are for purposes recognized by Muslim Law as religious and charitable, in other words to determine to what extent the dedication involved in them are valid under the Muslim Law.

On the other hand, Mr. Brohi, on behalf of the Govern ment, contends that wakf, wakf‑al‑al‑aulad and debuttar in general by themselves are not religious institutions within the meaning of clause (b) of Article 18 of the Constitution nor Their Lordships of the Supreme Court have decided them to be religious institutions within the meaning of Article 18 of the Constitution, and the question has been left undetermined to be determined by the High Court on remand ; so these appeals were remanded to the High Court for determination of the question and then to see to what extent dedication involved in each of them conforms to and constitute such a religious institution and then to grant appropriate relief. According to him, the Supreme Court only settled 2 questions in relation to the controversy whether wakf, wakf‑al al‑aulad and debuttar properties could be acquired under the impugned Act‑the first question relates to the application of the definition of rent‑receiver to the mutwalli and shebait, and the second refers to the interpretation of the expression "subject to law" appearing in the beginning of Article 18 of the Constitution‑and has not only not specifically decided the question "what is the meaning of the expression 'religious institution' in the Article "but also has not even considered the question in any significant sense".

Mr. Hamidul Haq Chowdhury and other learned Advo cates for the petitioner, in support of their contention, referred to that portion of the Supreme Court judgment where His Lordship, the Chief Justice, dealt with the effects of several provisions in the impugned Act on the properties of wakf, wakf‑al al‑aulad and debuttar and held, after considering their effect, that there could be no doubt that "these provisions of the Act" struck the religious institutions at the very root and constituted an infringement of the fundamental right guaran teed by Article 18 of the Constitution.

There was no dispute nor any doubt expressed or ever contended either before the High Court or before the Supreme Court that wakf, wakf al‑al‑aulad and debuttar, true to the sense of the terms, were not religious institutions within the meaning of religious institution" in Article 18 of the Constitution, though by that contention the claim of the petitioners could have been defeated; rather all concerned proceeded on the basis that they are religious institutions and, in fact, before the Division Bench of the High Court which heard some of these petitions, it is expressly conceded by the learned Advocate on behalf of the Government, as it appears from the judgment, that they are religious institu tions within the meaning of Article 18 of the Constitution. I do not think Their Lordships of the Supreme Court are unmindful of this express concession. So, there was no' necessity either for the High Court or for the Supreme Court to decide it specifically. But the fact remains that when the Supreme Court, after considering the effect of some of the provisions of the impugned Act upon the properties of wakf, wakf al‑al‑aulad and debuttar, held that "these drastic provisions in the Act" undoubtedly struck the religious institutions at their very root and constituted an infringement of the fundamental right under Article 18 of the Constitu tion. Their Lordships of the Supreme Court could not have any other institutions in their mind and contemplation than those they were dealing with. Nor can it be contended that Their Lordships were dealing with an hypothetical case dissociated from the facts of the cases before them: So. I think Their Lordships of the Supreme Court, though not expressly but by necessary implications, have decided that wakf, wakf al‑al‑aulad and debuttar in general, true to the sense of those terms, are religious institutions within the meaning of Article 18 of the Constitution. Even if it is not a decision but an opinion expressed by Their Lordships, it is an opinion of the Supreme Court and must have due and high regard.

In my view, therefore, the cases in the eight appeals are remanded only to determine to what extent the dedications involved in each of them are religious institution under the Muslim Law and then to grant appropriate relief. So the determination of the question whether wakf, wakf al‑al‑aulad and debuttar in general, true to the sense of the terms, are religious institutions or not within the meaning of Article 18 of the Constitution does not come within the scope of the order of remand. The remand order, as it appears from the order itself, is confined to the determination of the extent the dedications involved in each of the wakfs, wakf al‑al‑aulad are dedications for purposes‑ recognized by the Muslim Law as religious and charitable.

The next question urged on behalf of the petitioners is that, even if the question comes within the scope of the order of remand, there is no escape from holding that wakf and wakf al‑al‑aulad and debuttar are religious institutions under the Muslim Law and under the Hindu Law, as the case may be. The learned Advocates for petitioners .cited various authorities including Privy Council decisions in support of their contention. The institutions of wakf emanated from and enjoined by the Holy Quran (vide Surah Buqrah, Chapter II of Allama Yusuf's translation) and precepts of the Holy Prophet (ride Ameer Ali's Muhammadan Law, Volume I) and practised by the true followers of the Prophet from the time of the Prophet as a part and parcel of their faith and religion anti, as such, they are religious institutions, The authorities cited are the cases of Bikani Mia v. Shuk Lal Poddar and another (supra), Abut Fata Mahomed Ishak and others v. Rasamaya Dhur Chowdhuri and others (I L R 22 Cal. 619 (631)), The State of Bombay v. Narasu Appa Mali (A I R 1952 Bom. 84 (92)).

The Commissioner, Hindu Religious Endowments. Madras v. Sri Shirur Mutt (A I R 1954 S C 282 (288)) and the case of Meer Mahomed Israil Khan v. Sashti Churn Ghose and other besides Ameer Ali's Muhammadan Law.

I need not discuss all these authorities except Amir Ali's Muhammadan Law (Volume I, 4th Edition), parti cularly Wakf Chapter, where the learned author, after referr ing to and discussing various authorities,‑ ancient and modern, including judicial decisions, found that wakfs which can be divided into public and private, rather, public, quasi -public and private, are religious institutions I may quote the following passage from the book of the learned author at page 308.

" From the year 1798 downwards the Courts of Justice have uniformly applied the Mussulman Law to the deter mination of questions affecting the validity of dispositions made by Muhammadans. In the case of Jewan Das Shau v. Shah Kubiruddin Ahmed ((1840) 2 Moor I A 390), the appellant was a Hindu, and the question was whether the property which formed the subject‑matter of the suit was wakf or not. Their Lordships in the Privy Council decided the case on the basis of the Muhammadan Law. And every case before and since has proceeded upon the same principle (See also Zohoruddin Sircar v. Baharulla Sircar (W R 1684 (187)).

Apart, therefore, from the question whether a wakf in favour of the endower's family is a religious institution or not, it is submitted with respect that it would be contrary, not only to the principles of 'justice, equity and good conscience,' which the British Indian Courts have to administer, but also to 'immemorial and recognized practice.' to apply to its consideration any principle other than that of the Muhammadan Law. And Their Lordships of the Judicial Committee have condemned in express terms the idea that the validity of dispositions made by Mussulmans should be decided from any other point of view than that of their own laws and customs."

The Muhammadan Law, therefore, must be sought in authorities recognized by the Muhammadans as such, for, it would hardly be right to decide a case according to Muhammadan Law, and yet wholly to ignore the Works in which, that law is to be found.

Mr. Morley points out in his Digest the sources from which the Muhammadan Law is derived. He shows that Mussulman Law is founded (a) on the Koran; (b) on the precepts of the Prophet; and (c) on the decisions of the leading disci ples. The direct precepts and practice of the Prophet form part of what may be called the Statutory Law of Islam, being regarded as supplementary of the divine ordinances in the Koran. Mr. Morley also repeatedly mentions show closely connected religion and law are among the Mussulmans, and how impossible it is to dissociate the one from the other. His remarks on this subject are worthy of considerations ;

"In considering the propriety of altering or abrogating the Hindu or tvluhammadati Laws, all pre‑conceived notions of the relative excellence of the English and Native systems of jurisprudence should be taken as secondary considera tion. Nor should it be called in question whether such systems are in themselves good or bad, for, it should never be forgotten . . . . that they are an integral part of faith of that people, and that though we may not be bound by absolute treaty, we have virtually pledged ourselves to preserve them by repeated proclamations and enactments".

The institution of wakf in which the endower's family and descendants are the immediate recipients of the benefaction, owes its origin to the direct ordinance of the Prophet. Not only did he declare that a provision for one's family was the best of alms‑giving but he encouraged members of his household and his companions to create such wakfs, and himself set the example by consecrating certain lands at Khaibar. As I have said before, in dealing with the Mussulman Law, the meaning attached by Mussulmans to the words "charitable purposes" has been, unfortunately, often lost sight of. Charity has been construed to mean "charity to the poor," irrespective of the endower and his descendants; and piety and religion to mean such acts as would, in practical Europe, be regarded as pious or religious. This is not the Mussulman Law, which will be best explained by the following passage from the Mishkat, showing what the Prophet considered "piety and charity" to mean :‑

The Apostle of God said, 'When a Mussulman bestows on his family and kindred, hoping for reward in the next World, it becomes alms, although he has not given to the poor, but to)"his family and children.'

The authority of Ameer Ali on Muslim Law is considered supreme throughout undivided India and even by the Privy Council.

When the view of the learned author was referred to. Mr. Brohi, the learned Advocate for the opposite party, said that "religious institutions" in clause (b) of Article 18 of the Constitution are not those referred to by the learned author Syed Ameer Ali but of a different character, that is, they are different from those that are understood under the Muhammadan Law. His contention is that unless a dedication has got a public character, it is not a religious institution within the meaning of Article 18‑it may be a legal institution but not a religious institution. He contends that the words " religious institution" in clause (b) of Article 18 of the Constitution have to be read with reference to its context "every religious denomination and the sect thereof" which indicates that "religious institution" in the Article contemplated are religious institutions of a public character in which a denomination or a sect thereof are interested and he referred to difference in the language used in clause (a) where it refers every citizen. He also refers to the dictionary meaning of "institution" which, according to the concise Oxford Dictionary, means "organiza tion for promotion of some public object." Therefore, he contends that what is protected is a public wakf, that is, the wakf where the property is dedicated exclusively for public purposes and public charity and so much of private wakf, rather quasi‑public wakf.‑as dedications in them are for such purposes and not the private wakf including wakf al‑al‑aulad in which dedication is for the benefit of an in dividual or a set of individuals.

His further contention is, that wakf like a gift is optional, that is, Mobha, and not compulsory or Faraz, non compliance of which is to incur demerit or displeasure; that is, if you create a wakf, you earn a merit; if you do not, you will not incur demerit or divine displeasure; so it is not an absolute part of religion to call it religious.

There is no doubt that the framers of the Constitution, while using the expression "religious institution", used it in the same sense as understood by the citizens of Pakistan under their personal law and not in the technical sense of English Law where charity has got a meaning different from a charity, sadakah, under the Muslim Law or Hindu Law ,G and, by the expression "every religious denomination and every sect thereof" used by them, they mean every member o a religious denomination and every member of the sect threeof. They either individually or collectively will have the right to establish, manage and maintain their religious institutions. Otherwise, the word "establish" with reference to religious institutions will mean a religious institution established by a religious denomination as a whole and not by an individual of such denomination. The absurd result that would follow would be that if any individual of a religious denomination establishes a wakf, though public in character, it will not be protected under clause (b) of Article 18 of the Constitu tion, as it is not established by the religious denomination itself ; but Mr. Brohi has conceded that such an institution having a public character will be protected under the Article.

Let us take the converse case. Suppose a religious deno mination or a sect thereof created a private wakf for the benefit of poor and his descendants. According to Mr. Brohi, though it was created by the religious denomination as a whole, as it has got no public character, it will not be protected under clause (b) of Article 18 of the Constitution. The same result will follow in case of "maintain" and " manage" if we read them in the way suggested by Mr. Brohi. Then, what is the significance of reading the words "religious institution" with reference to its context "religious deno mination and every sect thereof" in the sense of Mr. Brohi, if that context does not apply equally The expression " religious denomination" is a general name for a class of like individuals such as Christian, Muslim, etc., which means every individual Christian as well as the Christian Community.

In clause (a) of the Article, the right to profess practise and propagate any religion is given to every citizen. Can it be imagined that such a right in respect of establishment, management and maintenance of a religious institution which forms part of practice of a religion is denied to a citizen The Supreme Court has pointed out that Article 18 does not, however, empower the Legislature to make law that thereafter no institution of a religious character shall be established, maintained or managed or that an existing religious institution shall be abolished. The fundamental canon of construction of a Constitution mentioned by the Supreme Court in its judgment that a Constitution should receive liberal interpretation in favour of the citizen specially in respect of those provisions which are designed to safe guard the freedom of conscience and worship is equally applicable in interpreting clause (b) of Article 18 of the Constitution. If it is the intention of the Legislature not to include private wakf and wakf‑al‑al‑aulad in the fundamental right, they might have said so in express terms or by neces sary implication. Further, I may point out here that the very wakf ultimately goes to public charity. So, it cannot be said that a private wakf has not got the public character in object though that object is not the proximate one.

His reference to the dictionary meaning of 'institution' is also not exhaustive. It also means establishment in cure of souls, that which is instituted or established, any thing forming a characteristic and persistent feature in social or national life or habits, established law, customs or practice. It also means an organization instituted for the promotion of some objects, specially one of public utility, religious or charitable : vide Webster's International Dictionary. So, wakf in this context also is an institution, as it is an organiza tion established or instituted for promoting the object of charity in perpetuity, the organisation being provided with necessary properties, rules for management and maintenance. There is no difference between law and religion under the Muhammadan Law. Mr. Morley in his Digest repeatedly mentioned how closely connected religion and law are among the Mussulmans and how impossible it is to dissociate the one from the other. The same consideration will apply to debuttar, as conception of charity is same under the Hindu and Muslim Law. "The laws of Hindus and Muhammadans are part and parcel of their religion and believed by them to be of divine revelation": vide Mr. Morley's Digest quoted by Ameer Ali, J., in Bikani Meah v. Shuk Lai Poddar (supra). In this connection, reference may also be made to the case of ]Jidya haruthi v. Balusree Ayyar (I L R 44 Mad. 831 (P C)).

So, in my opinion wakfs including wakf‑al‑al aulad and l are religious institutions within the meaning of F Article 18 of the Constitution and therefore protected under that Article.

The next question if even if wakf, wakf‑al‑al‑aulad and debuttar are religious institutions, can the properties of such institutions be acquired under the impugned Act to maintain the object of the dedication My answer is in the negative H first of all, I have already pointed out that wakf including wakf‑al‑al‑aulad and debuttar are themselves religious institu tions under the Muhammadan and Hindu Law. Wakf s are constituted by dedication of properties in the name of Allah for the benefit of mankind which may include the wakif and his descendants. If the very property, the dedication of which constitutes the wakf, the religious institution, is acquired, then the whole institution is affected ; in the case of wakf al‑al‑aulad, it is lost and wiped out as pointed out by the Supreme Court. In other cases, the institution itself will be affected. What constitutes a religious institution is not the object for which a wakf is created, namely, mosque, dargah, khanka and other charitable objects but the dedication of property. So wakf itself is a religious institution. If the property of the wakf is acquired, even providing for annuity for the maintenance of the object, it is not protecting the institution under Article 18 of the Constitution. There is also no provision in the impugned Act for annuity in case of private wakf. In this connection, I may refer to the passage in the judgment of the Supreme Court where His Lordship the Chief Justice dealt with the effect of some of the drastic provisions of the impugned Act and held that these drastic provisions in the Act struck religious institutions at the very root and constituted an infringement of the fundamental right guaranteed by Article 18 of the Constitution. So there cannot arise any question of acquisition of property of wakf or wakf al‑al‑aulad or debuttar which are religious institutions and then to provide annuity for maintenance of the object for which dedications were made. The Supreme Court has nowhere held that wakf properties can be acquired. What Their Lordships have held is that mutwallis of wakfs and shebaits of debuttar also come within the definition of rent receivers. But at the same time Their Lordships have held that wakf, wakf‑al‑al‑aulad and debuttar are protected under Article 18 of the Constitution. The result of these findings of the Supreme Court is that though mutwallis and shebaits come within the definition of rent‑receivers, the properties of I such rent‑receivers held in wakf, wakf‑al‑al‑aulad and dubuttar cannot be acquired, they being religious institutions under Article 18 of the Constitution.

The next question is to what extent dedications involved in each of the cases under consideration come within the term of religious institution. I have gone through the deeds of dedication in each case and I have not been able to find any dedication in them which is not for purposes recognized by the Muslim Law as religious and charitable nor it has been contended on behalf of the Government that any dedication involved in any of these cases is not for religious and charit able purposes as understood under the Muslim Law. So, there cannot be any doubt that the interest of the rent receivers involved to these cases are not liable to be acquired by the Government under the impugned Act and the notifi cations issued by the Government acquiring them are all bad and ultra vires as they constitute infringement of fundamental rights.

In respect of Writ Petition Nos. 22 and 18, portions of the wakf properties are not the, subject‑matter of the disputed notices issue' tinder subsections 1 and 2 of section 3 of the impugned Act but they are subject‑matters of different sets of notices issued before, for which civil suits are pending' for a declaration that the acquisitions are ultra vires. The petitioners definitely stated in the petitions the facts that portion of the properties of those wakfs are not covered by the writs suits are pending in the Civil Court in respect of these portions. The matter went up to the Supreme Court. Neither the High Court nor the Supreme Court dismissed those petitions on that ground; rather the Supreme Court affirmed the decision of the High Court cancelling the notifica tions so far as they relate to khas land. The Supreme: Court on the other hand by its order of remand directed us to determine to what extent the dedications involved in them come within the definition of a religious institution. Therefore, I think we cannot go beyond the order of remand and dismiss the writ petitions simply because portion of the wakf property which is not covered by the writ petitions is the subject- matter of civil suit. Further, I do not think it advisable to relegate these petitioners to separate suits as the Civil Court is bound by the decision of this Court and of the Supreme Court on constitutional point involved in all the cases before us.

In this view of the matter, I regret much that I have not been able to agree with my learned brother on the following points, namely, (1) on the scope of the order of remand, (2) on the interpretation of clause (b) of Article 18 of the Constitution, (3) on the question of acquisition of dedicated properties providing annuity for the maintenance of the objects for which dedications are made, and (4) on the question of dismissing the two Writ Petitions, Nos. 18 and 22, because portions of the wakf properties not covered by the writ are subject‑matters of separate suits pending in Civil Court.

The result, therefore, is that the Rules nisi issued in these cases are made absolute and the opposite parties are directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections 1 and 2 of section 3 of the impugned Act. The petitioners shall be entitled to their costs. Hearing fee I assess at 80 Gold Mohurs, that is 10 Gold Mohurs in each petition.

[On a difference of opinion between Akbar, J. and Choudhury J. the case was referred to Ispahani, J].

ISPAHANI, J.‑

These Writ Petitions have been referred to me as a Third judge, because the Division Bench, consisting of Akbar and Chowdhury, JJ., have come to different decisions on various points.

The facts are that 83 petitions for writs of mandamus or in the nature of mandamus were filed in this Court against the Provincial Government directing them to withdraw or rescind the notifications issued under subsections (1) and (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), by which all the interests of all rent‑receivers and all khas lands of rent‑receivers in various districts mentioned in those notifications were acquired from the 14th April 1956. The majority of these petitions were heard by a Full Bench consisting of three judges of this Court and that Full Bench disallowed all the constitutional objections to the notifications but in the petitions which were directed against the acquisi tion of lands in khas possession of mutwallis of wakf and shebaits of debuttar properties, the Rules nisi issued were made absolute because the notifications were against the provisions of section 20 of the Act. Some of the writ petitions, which were not heard by the Special Bench, were heard by a Division Bench, which followed the decision of the Full Bench.

From these decisions, appeal were preferred by the petitioners before the Supreme Court on the ground that their cases had been wrongly decided by this Court. The Provincial Government did not appeal against the decision in cases where the Rules nisi were made absolute in respect of the khas lands of the mutwallis and shebaits. The appeals before the Supreme Court numbered 59 which included the 8 writ petitions which are before me. Their Lordships of the Supreme Court, in the appeals relating to these 8 writ petitions, differed from the view taken by this Court in respect of the acquisition of wakf and debuttar properties. This Court had held that wakf and debuttar properties could be acquired under the provisions of the said Acquisition Act. In these circumstances, Their Lordships allowed the appeals in respect of these 8 writ petitions which relate to wakfs, and they were remanded to this Court with the following order

"The result is that all the appeals are dismissed except Appeals Nos. 2‑D, 3‑D, 4-D, 3, 13, 128, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances."

On remand, these writ petitions were heard by a Division Bench of this Court consisting of Akbar and Cbowdhury, JJ. They have differed on some material points. Akbar, J., held that the question of wakf‑al‑al‑aulad being a religious institu tion was never raised before the Supreme Court and, therefore, the remand order did not cover this question and it was for the High Court to come to a decision on this point. Chowdhury, J., held that the Supreme Court had decided this question and, therefore, the High Court could not re‑open the same. Akbar, J., while deciding the question as to whether dedications for descendants and children were religious institutions or not, held that wakf‑al‑al‑aulad is as much a wakf as a wakf‑i‑lillah. Chowdhury, J., also came to the same decision, irrespective of the decision by the Supreme Court. Akbar, J., while considering the question as to whether a dedication for the benefit of children and descend ants is a religious institution and protected by Article 18 (b) of the Constitution, held that in a dedication for the benefit of children and descendants a religious denomination has no such interest and, as such, Article 18 (b) is not applicable to such a dedication. Chowdhury, J., on the other hand, held that dedications of this nature also were protected under Article 18 (b) of the Constitution. Lastly, so far as the relief to be given by this Court was concerned. Akbar, J., observed as follows

"These wakfs also provide for the performance of various religious ceremonies and for other charities. I did not receive much assistance from the learned Advocates with regard to these dedications. On the materials before me. it is not possible to decide whether all or any of them should also get the protection of Article 18 (b). The petitioners, however, will be at liberty to agitate this question later, if they so desire.

I, however, find that the notifications for acquisition of khan lands of these wakfs were not published in accordance with the provisions of the Act. The Government have not followed Rules 26 and 37. Furthermore, the exceptions have not been mentioned in the notifications as required in Form No. IIB. I shall, therefore, allow these six petitions (Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956) so far as they relate to acquisition of the khas lands of the wakfs. I accordingly direct that the notifications for acquisition of khas lands of the above‑named wakfs be rescinded and be not given effect to. I shall reject the other prayers in these petitions".

The cases in Writ Petitions Nos. 18 and 22 of 1956 were a bit different in the sense that in respect of some lands of the wakfs appertaining to those Estates they had been previously aqquired by the Provincial Government under a previous notification and in respect of which rent suits had been filed and decreed in favour of the Wakf Estate. Appeals were pending and Akbar, J., held that inasmuch as there might be a conflict of decisions so far as these two Wakf Estates were concerned, he did not grant them also any relief. In other words, he discharged the Rules in respect of all the wakf estates except to the extent mentioned relating to six writ petitions. On the other hand, Chowdhury, J., allowed all the writ petitions and made the Rules absolute and the opposite parties were directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections (1) and (2) of section 3 of the impugned Act.

Learned Advocates of the parties have advanced exhaustive and learned arguments before me According to the Advocates for the petitioners, all kinds of wakf and debuttar properties were held by the Supreme Court to be religious institutions and, therefore, they were protected under Article 18 of the Constitution which includes clauses (a) and (b). It was contended that inasmuch as the law involved had been decided by the Supreme Court, the remand order was made to ascertain to what extent the dedications involved in these petitions were valid according to Mohammedan Law. Advocates for the petitioners have most strenuously argued that there was no occasion for reopening this question before the Division Bench and, as the question was allowed to be re‑opened, a new argument was advanced before that Bench. namely, as to whether the dedications involved in these wakfs are religious institutions in terms of clause (b) of Article 18. On the other hand,‑it was argued on behalf of the respondent that Their Lordships of the Supreme Court did not either expressly or impliedly hold that wakfs of all kinds and debuttars are religious institutions. It was thus necessary for this Court to come to an independent finding. According to this argument, the remand order means that the High Court was to look into the objects of the wakfs to ascertain to what extent such objects are exempted under clause (b) of Article 18. After such ascertainment, relief, if any, in the discretion of this Court, was to be given. This argument proceeded on the footing that the Supreme Court decided two questions only, the first relating to the application of the definition of "rent- receiver" to a mutwalli and a shebait and the second to the interpretation of the expression "subject to law" appearing in the beginning of Article 18.

Thus the first point for consideration is what did the Supreme Court decide. Is the matter closed once for all or was it for the High Court to come to a fresh decision There was no dispute nor was this point agitated that the Supreme Court was dealing with any other properties other than wakf properties. It appears that all the parties concerned proceeded on the basis that the properties were wakfs and were religious institutions. It was conceded berore the Division Bench, which heard the second set of writ petitions, that wakf properties were religious institutions. Before the Special Bench also, it was contended that wakf properties were religious institutions but that as wakfs could be made by law, they could also be un‑made by law. Therefore, before the Supreme Court, there was no dispute as to the nature of the properties, which were assumed all along by every body to be religious institutions. The Supreme Court considered the arguments advanced by the learned AdvocatA on behalf of the respondent on the interpretation of Article 18 of the Constitution to show that religious institutions of this kind could not be protected under Article 18 and could be acquired because that Article was subject to law. This argument was considered threadbare by the Supreme Court and that Court also considered whether mutwallis and shebaits were proprietors under clause (23) of section 2 of the impugned Act. Thereafter, subsection (3) of section 37 of the Act was considered and then Their Lordships observed as follows :‑

"Thus wakfs al‑al‑aulad are directly hit by this provision as well as other religious or charitable institutions if their manager has not been applying the income of the property to the objects to which it was intended by the dedicator to be applied".

After that, the implication of subsection (5) (1) (c) of section 20 was considered; after which, Their Lordships observed as follows :‑

"There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are subject to law' and may therefore be taken away by the law succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the maker. of a Constitution to say that a right is fundamental taut that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Sunnah could not possibly have intended to empower the Legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non‑Muslim citizens of the State".

On a consideration of the above passage in the judgment, it seems to me that Their Lordships of the Supreme Court expressly or impliedly have decided that wakf, wakf al-al‑aulad and debutaar are religious institutions and protected under Article 18 of the Constitution from acquisition. Thus the remand order is confined to the determination of the extent the dedications involved in these petitions are dedica tions for purposes recognized by the Muslim Law as religious and charitable. In this connection, Chowdhury, J., has come to a correct decision.

Both the learned judges have, independently of the decision of the Supreme Court, come to a concurrent finding that wakfs are religious institutions. In support, various Text Books and decisions were referred to show the ingredients of wakfs in Muslim Law and the permanency of wakfs, when once made. It is not necessary to refer to all the authorities, for, it is agreed by both the learned judges that wakfs of all kinds are religious institutions. Mention may be made to the well‑known treatises by the late Rt. Hon. Ameer Ali on Mahommedan Law, the Chapter on Wakfs. It is, therefore, not necessary to pussue this matter ally further. Some of the decisions referred to are I L R 19 Cal. 412, 1 L R 20 Cal. 116 (E. B.), I L R 44 Mad. 831 (P C), A I R (1936) Lab. 200 and P L D 1955 Lah. 264.

This brings us to the interpretation of clause (b) of Article 18 of the Constitution, which was for first time argued before Akbar and Chowdhury, JJ. As already stated, the Supreme Court has come to a finding that all wakfs and debuttar are protected under Article 18. The validity of the wakfs was not agitated before the Supreme Court or before Akbar and Chowdhury, JJ., or before me. Mr. Brohi, on behalf of the respondent, before Akbar and Chowdhury, JJ., for the first time, put forward as new argument, faced with the decision of the Supreme Court, that 'religious institutions' in clause (b) of Article 18 of the Constitution are different from those that are understood under the Mahommedan Law. His contention was that unless a dedication had a public character, it would not be a religious institution within the meaning of Article 18, and the words 'religious institution' mentioned in clause (b) must be read with reference to the context 'every religious denomination and every sect thereof". He contended that the religious institution in clause (b) must be of a public character in which a denomination or a sect thereof are interested and, if this condition was not fulfilled, such religious institutions were not protected under clause (b) from acquisition. That self‑same argument has been advanced before me in respect of wakf al‑al‑aulad. On the other hand, learned Advocates for the petitioners have argued firstly that this question has already been decided by the Supreme Court and secondly that clauses (a) and (b) of Article 18 are to be read not independently of each other but in conjunction with each other. In substance, their argument is that every citizen individually and collectively has the right to profess, . practise and propagate any religion and every individual and every religious denom ination and every sect thereof has the right to establish, maintain and manage its religious institutions. Authorities were cited to show what the Holy Prophet said regarding dedications in favour of one's children and descendants and case‑laws were referred to which uphold the Islamic principles on this point. Learned Advocates for the petitioners have argued that, as held by the Supreme Court, a liberal construc tion should be given on the interpretation of the Constitution and Article 18 should not be construed in a narrow sense Mr. Mesbahuddin has referred to the definition of 'institution' which is to be found in Law Lexicon of British India by Iyer, 1940‑Edition, at page 601. It reads, among other definitions 'All establishment of a public character; a place where the business of a society is carried on or the organization itself.' On the other hand, reference was made by the learned Advocates for the petitioners to the definition of practice to be found in Webster's Dictionary. Vol. II, page 1688, as meaning among others 'skilful and artful management'. 'Institution' is defined in Webster's Dictionary, Vol. I, page 1119, as meaning among others to include practice. The argument, therefore, is that clauses (a) and (b) are so inter‑linked with each other that they cannot be separated and one read divorced from the other. On the other hand, the learned Advocate for the respondent has asked me to construe clause (b) in a narrow sense without reference to clause (a). It seem ‑to me that the framers of the Constitution, while, using the expression 'religious institution' in clause (b), used it in the sense that is understood among Muslims, and not in a technical sense as understood in English Law. In my opinion, the expression 'every religious denomination and K every sect hereof, includes also individuals and thus individuals as well as religious denominations and every sect thereof have the right to establish, maintain and manage its religious institutions. The learned Advocates for the petitioners have pointed out that if the argument advanced on behalf of the respondent be accepted that a religious institution to be protected must have a public character, various anomalies would arise. If an individual of a religious denomination. establishes a wakf which may be of a public .character, such as an imambara or a mosque, it will not be protected under clause (b), because 'that wakf is not established by a religious denomination. On the other hand, suppose a religious denomination or any sect thereof creates a wakf making provision for the maintenance of any particular person or persons, though created by a religious denomination, it will have no public character and thus will not be 'protected under clause (b) of Article 18. The expression 'religious denomina tion', in my view, is a' general term used to mean a class of people belonging to a particular religion and every member of that, class. I am of opinion, therefore, that wakf including wakf al‑al aulad are religious institutions within the meaning of Article 18 of the Constitution and, therefore, protected under that Article and the construction sought to be put on clause (b) of Article 18 on behalf of the respondent must be negatived.

This leaves what relief is to be given to the petitioners. As already stated, it is not argued before me and it was not argued else‑where as well about the validity of wakfs including wakf‑al‑al‑aulad. The learned Advocates for the parties have placed before me the objects of the various wakfs in question and no attempt was made to show that any of the objects are not for purposes recognized by Muslim Law to be religious or charitable. Thus on the facts as well, the finding must be in favour of the petitioners.

Separate arguments were advanced in respect of the two writ petitions, namely, Writ Petitions Nos. 18 and 22 of 1956. It is true that in respect of some properties of these wakfs, which were acquired by a previous notification, suits have been filed and decreed in favour of the Mutwallis and appeals are pending. In respect of the properties of these wakfs covered by the respective writ petitions no litigation is pending. There seems no reason why no order should be passed in respect of these two writ petitions. Akbar, J., thinks there may be a conflict of decisions if any order is passed. Whatever order is passed herein will be binding on the subordinate Courts.

I have considered all the writ petitions and the elaborate arguments advanced most carefully and I have come to the decision mentioned above. All the wakfs covered by these writ petitions are protected under Article 18 of the Constitution and they cannot be acquired by Government because of that Article.

The result, therefore, is that the Rules Nisi issued are made absolute and the opposite parties are directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections (1) and (2) of section 3 of the impugned Act. So far as costs are concerned, there will be no order as to costs of this Court and before the Division Bench.

On behalf of the respondents, a prayer is made for a certificate under Article 157(1) of the Constitution. As these cases involve substantial questions of law as to the interpreta tion of the Constitution, the certificate prayed for is granted.

A. H.

Rules made absolute

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