2024 C L C 1158
[Sindh (Larkana Bench)]
Before Arbab Ali Hakro, J
REHMATULLAH BROHI----Petitioner
Versus
GHULAM SARWAR and 2 others----Respondents
Constitutional Petition No.S-401 of 2022, decided on 18th May, 2023.
(a) Sindh Waqf Properties Act (XXVII of 2020)---
----S. 3(f)---Muslim Waqf---Object, purpose and scope---Once Waqif creates Waqf, it gets tied up forever and becomes non-transferable---Main objective behind creating Waqf is that its usufruct is made available for purposes that are valid under Muslim Law---For creating a Waqf, there are certain essentials that need to be followed:- (i) Waqf should be for religious, pious, and/or charitable purposes; (ii) It should be of permanent nature, i.e., absolute, irrevocable, non-transferable, and unconditional and (iii) Once Waqf is created, ownership vests in the name of Almighty Allah, i.e., detention of thing, is implied ownership of the Almighty---Usufruct that is obtained from Waqf property is for the benefit of mankind---Waqf cannot be created by every person---There are only certain people who can create a Waqf---It can be created by a major person, with no fraud, undue influence or coercion, or any deadly illness---There are only certain things that can be made, Waqf like the Koran, swords, war camels and horses, shares in companies, and money for loans to the poor---Waqf, under Muslim Law, is created by Waqif orally or in writing and then Almighty Allah becomes the owner of the property, which is irrevocable and later cannot be transferred back---Waqf can only be of those objects that are considered valid under Muslim law.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Sindh Waqf Properties Act (XXVII of 2020), Ss.10 & 11---Ejectment of tenant---Concurrent findings of facts by two Courts below---Petitioner / tenant was aggrieved of eviction order passed against him by two Courts below---Plea raised by petitioner / tenant was that demised premises was Waqf property and provisions of Sindh Waqf Properties Act, 2020, were applicable---Validity---Interconnection of landlord and tenant among respondent and petitioner, coupled with unfolding of chronological process and passing of their respective fathers, resulted in manifestation of a statutory tenancy---Conclusions drawn by Revisional Court regarding applicability of Ss. 10 & 11 of Sindh Waqf Properties Act, 2020, were valid in instances where demised premises had been duly registered or had undergone transfer of possession under the purview of the Chief Administrator---High Court declined to preclude jurisdiction of Rent Controller---In the hierarchy contemplated under Sindh Rented Premises Ordinance, 1979, the "Appellate Court" is the final authority---High Court cannot interfere in well-reasoned orders and findings of the Rent Controller and Lower Appellate Court unless there is grave miscarriage of justice, misreading, non-reading of evidence available on record or error of jurisdiction was caused by the Rent Controller or Lower Appellate Authority---High Court in Constitutional jurisdiction declined to interfere in eviction orders passed by Courts below, as the same did not suffer from any illegality or jurisdictional error---Constitutional petition was dismissed, in circumstances.
Mst. Shahana Jawed v. Haroon 1991 MLD 1914; Mohammad Ibrahim v. Zeenat Bibi and others 1991 CLC 1967 and Abdul Hussain and 2 others v. The Fourth Rent Controller, South Karachi and 2 others 1993 CLC 1809 distinguished.
Manager Auqaf and another v. Mazhar Ali 1985 CLC 1794; Yousaf and another v. Muhammad Zubair and another PLD 1986 SC 154; Muhammad Bashir v. Yaseen and others 2011 CLC 1464 and Hanif and others v. Malik Armed Shah and another 2001 SCMR 577 ref.
(c) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 21---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Interim order---Object, purpose and scope---Right of appeal, absence of---Purpose of not providing appeal from interim orders is to avoid piecemeal decision and to ensure expeditious disposal of matters under Sindh Rented Premises Ordinance, 1979---This object cannot be allowed to be defeated by device of challenging interim orders in Constitutional jurisdiction.
Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 rel.
Mohammad Ibrahim Lashari for Petitioner.
Abdul Rehman Mughal for Respondent No.1.
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