--S. 2(e)--Waqaf Property--Means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable

 PLJ 2022 Peshawar 39

Khyber Pakhtunkhawa Waqaf Property Ordinance, 1979 (I of 1979)--

----Ss. 7 & 11--Civil Procedure Code, (V of 1908), O.VII R. 11(d)--Rejection of appeals--Issue of notification regarding over administrative control of property in question--Time-barred--Notification was not challenged within stipulated period--Appellants in instant case, after issuance of notification did not challenge it within stipulated period and remained mum for a period of more than five decades as impugned notification was published in year, 1960, while appellants filed instant petition under Section 11 of ordinance in year 2011, which is badly time barred--Notification was issued in year 1960, while provisions of service of notification and its affixation on some visible place was inserted vide Khyber Pakhtunkhwa Act No. II of 1985--Trial Court has decided 'lis' pending before it with conscious and application of independent mind--Counsel for appellants was unable to point out any illegality or infirmity in impugned judgment, warrants interference by this Court--Appeal dismissed.

                                                                          [Pp. 42 & 43] C, D & E

Khyber Pakhtunkhawa Waqaf Property Ordinance, 1979 (I of 1979)--

----S. 2(e)--Waqaf Property--Means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable. [P. 41] A

Khyber Pakhtunkhawa Waqaf Property Ordinance, 1979 (I of 1979)--

----S. 7(1)--Assuming of administrative control--Chief Administrators may, by notification, take over and assume administrative control, management and maintenance of waqf property.    [P. 42] B

1982 SCMR 160, PLD 1991 SC 102, PLD 1994 Lahore 241 &
2000 YLR 2506 Lahore ref.

Mr. Arbab Yasir Hayat, Advocate for Appellant.

Mr. Nasir Mehmood, Advocate and Mr. Yasir Khalid, Advocate for Respondent.

Date of hearing: 9.12.2021

PLJ 2022 Peshawar 39
Present: Ms. Musarrat Hilali, J.
ARBAB ALTAF QADIR--Appellant
versus
AUQAF--Respondent
R.F.A. No. 1 of 2013, decided on 9.12.2021.

Judgment

This appeal has been directed against the judgment dated 08.10.2012 passed by learned Additional District Judge-I, Peshawar, whereby petition filed under Section 11 of the Khyber Pakhtunkhwa Waqaf Property Ordinance, 1979, "the Ordinance, 1979" by the appellants was rejected under Order VII Rule 11(d) of the Code of Civil Procedure, 1908.

2. Facts leading to the filing of instant appeal are that the appellants had filed a petition under Section 11 of the Ordinance, 1979, before the District Judge, Peshawar, for declaration to the effect that land along with superstructure of "Spin Jumat", situated in Khasra No. 874, 875 and 876, situated in the estate of mauza Sufaid Dheri, District Peshawar, is owned and possessed by them since time encumbered and, as such, Notification No. 4-27/59-1, dated 07.07.2060, issued by Chief Administrator Auqaf vide which the Auqaf Department took over administrative control, management and maintenance of the property in question, is illegal, without legal foundation, mala fide and void, thus, liable to be cancelled.

3. The petition was entrusted to the learned Additional District Judge-1, Peshawar, for disposal. When summoned, the respondents attended the Court and submitted an application for rejection of petition under Order VII Rule 11, C.P.C. r/w Section 11 of the Ordinance, 1979, on the ground of being barred by time as the appellants had challenged the notification after the lapse of fifty two (52) years. The application was contested by the petitioners by filing written reply. The learned trial Court after hearing the parties, rejected the petition, vide order dated 08.10.2012, by holding that:

"Nevertheless, the impugned notification would show that, admittedly, it was issued in the year, 1960, and whereby the Chief Administrative Auqaf West Pakistan by virtue of West Pakistan, Waqaf Properties Ordinance, 1979, had assumed the administration control, management and maintenance of the Waqf property namely Spin Jumat along with two shops in Peshawar. Thus, a cursory reference to the said document would be sufficient to hold that, respondents/petitioners have woke up of the deep slumber and acquiescence after about five decades and thus, the petition in hand is found truly time barred. Having so, the present petition attracts invoking Order VII Rule 11(d), C.P.C. and thus the petition stands rejected."

4. Not satisfied with the judgment/order passed by learned trial Court, the appellants have now filed the instant regular first appeal.

5. Arguments heard and record perused.

6. It is evident from the record that through notification Bearing No. 4-27/59, dated 06.07.1960, the Chief Administrator of Auqaf, in exercise of the powers conferred on him by Section 6 of the West Pakistan Waqf Properties Ordinance, 1950, took over and assumed the administrative control, management and maintenance of the mosque in question known as "Spin Jumat" along with two shops in Peshawar, duly published by Authority in the Gazette of West Pakistan on 07.07.1960. It is also evident from the record that in year, 2009, Pervez Khan and three others started construction in the premises at the instance of Administrator, Auqaf Department, Peshawar, against which the appellants approached the civil Court by filing a declaratory suit contending therein that they are owners in possession of the disputed property, which was given orally for the use of mosque known as 'Speen Jumat', therefore, the Auqaf department has got no right whatsoever to transfer any part thereof by way of sale, lease or auction in favour of any other person, however, during pendency of the suit, the respondents produced a Notification No. 4-27/59-1 dated 06.07.1960, published in the Gazette on 07.07.1960, issued by Chief Administrator, Auqaf, which was challenged by the appellants through a petition under Section 11 of the Ordinance, 1979, contended thereby that the property in question was not waqf property and the notification, referred to being illegal and without lawful authority is liable to be set aside.

7. As per preamble, the purpose of the Ordinance, 1979 is to provide for the proper management and administration of waqf properties in the Khyber Pakhtunkhwa. Waqf property under Section 2 (e) of the Ordinance ibid, means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable. Under explanation I of the Ordinance, if a property has been used from time immemorial for any purpose recognized by Islam as religious, pious or chartable, then in spite of there being no evidence of express dedication, such property shall be deemed to be waqf property. Similarly, under Explanation-V, property permanently dedicated for the purpose of a mosque, takia, khankah, dargah, or other shrine shall be deemed to be a waqf property. The contents of Suit No. 639/1 and petition filed under Section 11 of the ordinance, 1979, would reveal that the property in question was owned by their predecessor since time immemorial, who had given it for use of Masjid and a permanent mosque known as 'Speen Jumat' was constructed over it.

Under Section 202 of the Muhammaden Law, the moment a Waqf is created, all rights of property pass out of the Waqif and vest in the Almighty. Under sub-section (1) of Section 7 of the Ordinance, 1979, the Chief Administrators may, by notification, take over and assume the administrative control, management and maintenance of waqf property, accordingly, the Chief Administrators while exercising such powers, issued the impugned notification by taking over and assuming the administrative control, management and maintenance of the mosque in question. No doubt, after creating Waqf, the property shall be registered under Section 6 of the Ordinance by every person acting as Incharge or exercising control over management of any Waqf property which would also include the person, creating the Waqf and in this respect, though, there is nothing on record in black and white, but non­compliance of the provisions of Section 6 of the Ordinance does not oust the powers of the Chief Administrator from taking over such property by way of notification.

8. Admittedly, in the instant lis, a notification regarding the waqf property under Section 7 of the ordinance has been issued. Legally, under sub-section (1) of Section 11 of the Ordinance, any person claiming any interest in any waqf property in respect of which a notification under Section 7 has been issued may, within thirty (30) days of the publication of such notification, file a petition to the District Judge within whose jurisdiction the waqf property or any part thereof is situated for a declaration that (a) the property is not waqf property and (b) that the property is waqf property within limits stated in the petition, but the appellants in the instant case, after issuance of the notification did not challenge it within the stipulated period and remained mum for a period of more than five decades as the impugned notification was published in year, 1960, while the appellants filed the instant petition under Section 11 of the ordinance ibid in year 2011, which is badly time barred.

9. The argument of learned counsel for the petitioner that neither the notification was served upon them nor it was affixed on some conspicuous part of the property sought to be taken over, has no force as the notification was issued in year 1960, while the provisions of service of notification and its affixation on some visible place was inserted vide Khyber Pakhtunkhwa Act No. II of 1985. Regarding delay in filing of the petition, learned counsel for the petitioners, though, submitted that the notification was issued in year, 1960 while they came to know about it during pendency of the suit filed by them before the civil Court, therefore, the delay caused in filing of the petition is not deliberate and is, therefore, liable to be condoned, but his this submission also has no weight because the Khyber Pakhtunkhwa Waqf properties Ordinance, 1979, is a special law for the purpose of Section 29 of the Limitation Act as held by the Hon'ble the apex Court in a case titled Elahi Bakhsh vs. Chief Administrators, Wagf Property (1982 SCMR 160) wherein it has observed that:

"There can be no doubt that for the purposes of Section 29 of the Limitation Act, this Ordinance of 1959 is a special law. Now Section 7 of the Ordinance clearly states that an application against a notification should be filed within 30 days, it does so because of the provisions already made by the Limitation Act in Section 29 which attract the operation of Section 3 and make that period of time effective as the period of limitation. Furthermore, the last part of clause (2) of Section 29 makes it clear that Section 5 would not apply to an application under a special or local law."

Similar view has also been expressed by the august Supreme Court in a case titled Chief Administrators of Auqaf vs. Muhammad Ramzan and others (PLD 1991 Supreme Court 102 as well as Hon'ble Lahore High Court in cases reported as PLD 1994 Lahore 241 and 2000 YLR 2506 (Lahore).

10. Likewise, the factum of the impugned notification was also discussed by the learned Civil Judge in an interlocutory order dated 21.07.2010 passed in a civil suit filed by the appellants, meaning thereby the appellants were already in the knowledge of the notification, however, the present petition under Section 11 of the Ordinance was filed on 05.03.2011, therefore, on this score too, the petition is time barred.

11. After going through the impugned judgment/order it is held that the learned trial Court has decided the 'lis' pending before it with conscious and application of independent mind. Learned counsel for the appellants was also unable to point out any illegality or infirmity in the impugned judgment/order, warrants interference by this Court, therefore, the instant appeal being without any merit is hereby dismissed.

(Y.A.)  Appeal dismissed