Pakistan (Punjab) Legislation

THE PUNJAB WAQF PROPERTIES ORDINANCE, 1979

(Ordinance IV of 1979)

Section Heading

1. Short title, extent and commencement.

2. Definitions.

3. Appointment of Chief Administrator of Auqaf.

4. Appointment of Administrators and Deputy Administrators.

5. General appointments.

6. Registration of waqf properties.

7. Chief Administrator may take over waqf property by notification.

7-A. Provision of miscellaneous information.

8. Eviction of persons wrongfully in possession of waqf properties.

8-A. Lease of waqf property and use of derived income.

9. Power to terminate a lease or resume a tenancy for breach of conditions.

10. Appeal and finality.

11. Petition to District court against notification.

12. Appeal against the decision of District court.

13. District court and High Court not to issue temporary injunction or order.

14. Decision of the District court under section 11 or the High Court under section 12 to be final.

15. Chief Administrator to prepare the scheme for the administration of waqf property.

16. Sale of waqf property by Chief Administrator and application of proceeds.

17. Use of waqf property and application of income therefrom.

18. Chief Administrator to maintain accounts.

19. Rents and lease moneys in respect of waqf property may be recovered as arrears of land revenue.

20. Chief Administrator may call for returns, etc. and may issue instructions and directions in respect of waqf property.

20-A. Provision of information to authorities.

20-B. Provision of information to reporting entities.

21. Bar of jurisdiction.

22. Effect of orders, etc., inconsistent with this Ordinance.

23. Protection of action taken under this Ordinance.

24. Offences.

25. Power to frame rules.

26. Continuance of actions, etc., taken under Act LVI of 1976.

^[1]THE PUNJAB WAQF PROPERTIES ORDINANCE, 1979

(Ordinance IV of 1979)

[14 April 1979]

An Ordinance to provide for the proper management and

administration of waqf properties in the Province of the Punjab.

Preamble.- WHEREAS it is expedient to provide for the proper management and administration of waqf properties in the Province of the Punjab;

NOW, THEREFORE, in pursuance of the Proclamation of fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A's Order I of 1977), the Governor of the Punjab is pleased to make and promulgate the following Ordinance:-

1. Short title, extent and commencement.- (1) This Ordinance may be called the Punjab Waqf Properties Ordinance, 1979.

(2) It extends to the Province of the Punjab.

(3) It shall come into force from the date as may be notified by the Government in the official Gazette.

2. Definitions.- In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say:-

(a) "Administrator" means an Administrator of Auqaf appointed under the provisions of section 4;

^[2][(a-i) "authorities" means an 'investigating or prosecuting agency' and the 'Financial Monitoring Unit' as defined in the Anti-Money Laundering Act, 2010 (VII of 2010);

(a-ii) "beneficial owner" means a natural person who owns or controls a waqf property, whether directly or indirectly or by exercising effective control of that waqf property through such other means, as may be prescribed;

(a-iii) "beneficiary" means a person who gets any benefit from the waqf property or whose name is listed in the waqf document as beneficiary of such property;]

(b) "Chief Administrator" means the Chief Administrator of Auqaf, Punjab;

^[3][(b-i) "Collector" means the Chief Officer-in-charge of the revenue administration of the district as define in the Punjab General Clauses Act, 1956 (VI of 1956);]

(c) "Government" means the Government of the Punjab;

^[4][(c-i) "investigating or prosecuting agency" means the investigating or prosecuting agency as defined in the Anti-Money Laundering Act, 2010 (VII of 2010);

(c-ii) "Manager" means a person appointed by the Chief Administrator for the administration, control, management and maintenance of a waqf property;]

(d) "prescribed" means prescribed by rules made under this Ordinance;

^[5][(d-i) "reporting entity" means a person or entity as defined in the Anti-Money Laundering Act, 2010 (VII of 2010);]

(e) "waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any such waqf as is described in section 3 of the Mussalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants.

Explanation 1- If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable, then inspite of there being no evidence of express dedication, such property shall be deemed to be waqf property.

Explanation 2- Property allotted in lieu or in exchange of waqf property left in India shall be deemed to be waqf property.

Explanation 3- Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of waqf property or from subscriptions raised for any purpose recognised by Islam as religious, pious or charitable shall be deemed to be waqf property.

Explanation 4- The income from boxes placed at a shrine and offerings, subscriptions or articles of any kind, description or use presented to a shrine or to any person at the premises of a shrine, shall be deemed to be waqf property.

Explanation 5- Property permanently dedicated for the purposes of a mosque, takia, khankah, dargarh or other shrine shall be deemed to be waqf property.

Explanation 6- Relief of the poor and the orphan, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes.

3. Appointment of Chief Administrator of Auqaf.- (1) Government shall appoint a Chief Administrator of Auqaf for the Province of the Punjab and may by order, vest in him, the waqf properties situated in the Province including all rights, assets, debts, liabilities and obligations relating thereto.

(2) No person shall be appointed as Chief Administrator unless he is Muslim and possesses such qualifications as may be prescribed by Government.

(3) The Chief Administrator shall be a corporation sole by the name of the Chief Administrator of Auqaf, Punjab, and shall have perpetual succession and an official seal, and may sue and be sued in his corporate name.

(4) The Chief Administrator shall be subject to the general control of Government.

4. Appointment of Administrators and Deputy Administrators.- ^[6][(1) Government may appoint an Administrator or Administrators for such area or areas and Deputy Administrators for such districts as may be specified in the notification to assist the Chief Administrator, on such terms and conditions as may be prescribed, and an Administrator or Deputy Administrator so appointed shall, subject to the general or special orders of the Chief Administrator, be competent to discharge such duties and exercise such powers of the Chief Administrator as may be assigned to him and while discharging such duties or exercising such powers shall have the same privileges and be subject to the same liabilities as the Chief Administrator:

Provided that Government may assign duties of the Deputy Administrator to the Assistant Commissioner (Headquarter) of each District to perform the functions of Deputy Administrator:

Provided further that no person all be appointed as Deputy Administrator unless he is a Muslim.]

(2) The Administrator or Deputy Administrator appointed under sub-section (1) shall be under the administrative control of the Chief Administrator.

5. General appointments.- (1) The Chief Administrator with the previous sanction of Government may from time to time determine the number, designation and grade of the officers and servants whom he considers necessary to employ for the purpose of this Ordinance and the amount and nature of salary, fees and allowances to be paid to each such officer and servant:

^[7][Provided that no person shall be appointed as an Officer unless he is a Muslim].

(2) All persons employed for the purposes of this Ordinance shall be deemed to be public servants within the meaning of section 21 of the Pakistan Penal Code (XLV of 1860).

^[8][6. Registration of waqf properties.− (1) Every person creating a waqf or every Manager shall get the waqf property registered with the Chief Administrator within ninety days of the creation of the waqf in such manner as may be prescribed.

(2) Any person creating a waqf or any Manager who does not get the waqf property registered with the Chief Administrator under subsection (1) within the stipulated period, shall be punished with fine of rupees fifty thousand for each day for the first ninety days after expiry of such stipulated period and thereafter with a fine of rupees one hundred thousand for each day.

(3) The Collector in respect of his respective district shall furnish, in the prescribed manner, a consolidated annual report of all waqf properties recorded as waqf during the year to the Chief Administrator.

(4) Every person creating a waqf or every Manager shall maintain and update the record concerning the waqf property and provide to the Chief Administrator on demand, and shall report any change in the waqf property to the Chief Administrator in such manner as may be prescribed.]

7. Chief Administrator may take over waqf property by notification.- (1) Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act, 1863 (XX of 1863), or any other law for the time being in force, or in any custom or usage, or in any decree, judgement or order of any court or other authority, or in any proceedings pending before any court or other authority, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a waqf property:

Provided that, during the life time of a person dedicating a waqf property, the Chief Administrator shall not take over and assume the administration, control, management and maintenance of such waqf property except with the consent of such person and on such terms and conditions as may be agreed upon between such person and the Chief Administrator:

^[9][Provided that the notification shall be served upon the management or the mutawalli and also affixed on some prominent part of the property which is sought to be taken over].

Explanation- For the purposes of this section "control and management" shall include control over the performance and management of religious, spiritual, cultural and other services and ceremonies (Rasoomat) at or in a waqf property.

(2) No person shall perform services or ceremonies (Rasoomat) referred to in sub-section (1) except with the prior permission of the Chief Administrator and in accordance with such directions as may be given by him.

^[10][(3) The Chief Administrator shall maintain a centralized record of all properties registered under section 6 and taken over under subsection (1) in such manner as may be prescribed, and until so prescribed as may be determined by the Government; and at the end of each financial year shall submit a report to this effect to the Government.]

^[11][7-A. Provision of miscellaneous information.− Before entering into a business relationship or carrying out any occasional transaction with a reporting entity, any person creating a waqf or any Manager shall disclose his status as such to the reporting entity.]

^[12][8. Eviction of persons wrongfully in possession of waqf properties.− (1) If any person is in occupation of, or enters upon, or is using any immovable waqf property to the occupation or use of which he is not, or has ceased to be, entitled by virtue of any provision of this Ordinance, the Chief Administrator or any other person authorized by him may, with the assistance of the district administration or an investigating or prosecuting agency, after giving such person a reasonable opportunity of showing cause against the action proposed to be taken, shall get it evicted with use of such force as may be necessary.

(2) Any crop standing, or a building, or other structure erected on a waqf property in respect of which action is taken under subsection (1) shall stand forfeited to the Chief Administrator.]

^[13][8-A. Lease of waqf property and use of derived income.- The Chief Administrator may lease out the waqf property taken over under section 7 for such period as may be prescribed, and the income derived from such property shall be used for any purpose recognized by Islam as religious, pious and charitable as the Chief Administrator may deem fit.]

^[14][9. Power to terminate a lease or resume a tenancy for breach of conditions.− (1) If the Administrator is satisfied that the lessee or the tenant of any immovable waqf property has committed a breach, of the conditions of lease or tenancy, the Administrator may give to such lessee or tenant a notice to appear before the Administrator and state his objections, if any, before an order for the termination of lease or resumption of the tenancy is made.

(2) The lessee or the tenant to whom a notice is given under subsection (1) may undertake in writing to the Administrator that the breach of the conditions of the lease or tenancy specified in such notice is likely to be rectified and he shall rectify such breach.

(3) If the Administrator is satisfied that the breach is likely to be rectified, he shall allow to the lessee or the tenant, as the case may be, a period not less than thirty days or more than sixty days to rectify such breach, and may make an order terminating the lease or resuming the tenancy if the lessee or the tenant fails to rectify the breach within the stipulated time.

(4) Where an order terminating the lease or resuming the tenancy has been made under subsection (3), the Administrator may forthwith resume the possession of a waqf property, subject to the payment of compensation to be fixed by the Administrator for standing and un-gathered crops or for the improvements of the waqf property, if any, that have been made by the lessee or the tenant under the terms of the lease or the tenancy or made with the permission of the Administrator.

(5) If a lease or tenancy of a waqf property is terminated or resumed and is allotted to any other person, the amount of the compensation, if any, paid to the outgoing lessee or tenant under sub-section (4) may be recovered from such person to whom such property is allotted.]

10. Appeal and finality.- (1) Any person evicted under the provisions of section 8 or aggrieved by an order of termination of lease or resumption of tenancy made under section 9 may within sixty days of such eviction or within thirty days of the order of termination of the lease or resumption of tenancy, prefer an appeal to the Chief Administrator and the Chief Administrator after giving such person an opportunity of being heard, confirm, modify or vacate the order made by the Administrator under section 8 or 9.

(2) If there is no appeal against an eviction under section 8 or an order of termination of lease or resumption of tenancy made by the Administrator under section 9 the eviction, termination of lease or resumption of tenancy, as the case may be, shall be final and when there is an appeal, the decision of the Chief Administrator in appeal shall be final.

11. Petition to District court against notification.- (1) Any person claiming any interest in any waqf property in respect of which a notification has been issued under section 7 may within thirty days of the publication of such notification petition the District court within whose jurisdiction the waqf property or any part thereof is situated for a declaration-

(a) that the property is not waqf property;

(b) that the property is waqf property within limits stated in the petition:

Provided that notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgement, or order of any court or other authority, or in any proceeding pending before any court or other authority, no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles referred to in Explanation 4 to clause (c) of section 2, or the services or ceremonies (Rasoomat) mentioned in section 7.

(2) The District court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay.

12. Appeal against the decision of District court.- Any person aggrieved by a decision of the District court under sub-section (1) of section 11 may, within sixty days of the order, appeal to the High Court.

13. District court and High Court not to issue temporary injunction or order.- Notwithstanding anything to the contrary contained in any other enactment for the time being in force, the District court or the High Court shall not, pending disposal of a petition filed under section 11 or an appeal filed under section 12, have the power to issue temporary injunction or order restraining the Chief Administrator from taking over or assuming the administration, control, management and maintenance of property in respect of which a notification has been issued under section 7.

14. Decision of the District court under section 11 or the High Court under section 12 to be final.- If there is no appeal, the decision of the District court, or when there is an appeal the decision in appeal shall be final.

15. Chief Administrator to prepare the scheme for the administration of waqf property.- (1) The Chief Administrator shall, as respects the waqf property in respect of which a notification under section 7 has been issued and the gross annual income from which exceeds five thousand rupees and in other cases may, settle a scheme for the administration and development of such waqf property.

(2) In the settlement of a scheme the Chief Administrator shall give effect to such wishes of the person dedicating as can be ascertained, and to which effect can be reasonably given.

16. Sale of waqf property by Chief Administrator and application of proceeds.- Government may, ^[15][subject to the provisions of subsection (2) of section 15,] where it is satisfied that circumstances exist which make it necessary to sell or otherwise dispose of any waqf property in order-

(a) to secure maximum economic benefits out of such property and to avoid loss or damage to such property; or

(b) to serve the best public interest and public purpose for which such property was dedicated; or

(c) to give effect to such wishes of the person dedicating the property as can be ascertained; or

(d) in the absence of evidence of express dedication, to enable the property to be used for the purpose for which it has been used or for any purpose recognised by Islam as religious, pious or charitable; or

(e) to provide maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or

(f) to provide education, medical aid, housing, public facilities and services such as roads, sewerage, gas and electric power; or

(g) to prevent danger to life, property or public health,

permit the Chief Administrator to do so and to invest the proceeds in accordance with its directions:

^[16][Provided that the sale-proceeds shall first be applied for satisfying the main purpose of the waqf.]

17. Use of waqf property and application of income therefrom.- Subject to the provisions of this Ordinance, a waqf property shall be used for the purpose for which it was dedicated or has been used or for any purpose recognised by Islam as religious, pious or charitable, as the Chief Administrator may deem fit.

18. Chief Administrator to maintain accounts.- (1) The Chief Administrator shall maintain a complete record of all properties under his control and management and shall keep accounts of income and expenditure of such properties, including expenditure on the Chief Administrator and his establishment, in such manner as may be prescribed.

(2) All moneys received or realised by the Chief Administrator in respect of properties under his control and management, shall form and be credited to a fund to be called Auqaf fund, shall be under the control of, and operated upon by the Chief Administrator, subject to general supervision of Government, and shall be kept in such custody as may be prescribed.

(3) At the end of each financial year the accounts maintained by the Chief Administrator shall be audited by such authority as may be prescribed and the audit report with the comment of the Chief Administrator shall be laid before the Government.

19. Rents and lease moneys in respect of waqf property may be recovered as arrears of land revenue.- Any sum due as rent or lease money in respect of waqf property, the administration whereof has been taken over and assumed by the Chief Administrator, if not paid within thirty days of its having become due, may be recovered as arrears of land revenue.

20. Chief Administrator may call for returns, etc. and may issue instructions and directions in respect of waqf property.- (1) The Chief Administrator may require any person-in-charge of or exercising control over the management of any waqf property, the administration whereof has not been taken over or assumed by him under section 7, to furnish him with any return, statement, statistics or other information regarding such waqf property, or a copy of any document relating to such property, and such person shall comply with such order or direction without any delay.

(2) The Chief Administrator may issue to any person-in-charge of or exercising control over the management of any waqf property, the administration whereof has not been taken over or assumed by the Chief Administrator under section 7, such instructions or directions for the proper administration, control, management and maintenance of such waqf property as he may deem necessary including directions prohibiting delivery of sermons, khutbas or lectures which may contain any matter prejudicial to the sovereignty and integrity of Pakistan or calculated to arouse feeling of hatred or disaffection amongst various religious sects or groups in the country and directions prohibiting such person from indulging in party politics through sermons or lectures, and the person having charge or exercising control over the management of such property shall comply with such instructions and directions.

^[17][20-A. Provision of information to authorities.− (1) The Chief Administrator shall provide such information about waqf properties to the authorities in such manner as may be prescribed or as may be required by the authorities.

(2) A Manager shall provide the following information to the authorities for the purposes of domestic and international cooperation from time to time in such manner as may be prescribed:

(a) beneficial ownership of waqf property;

(b) the residences of the staff who have control over the waqf properties;

(c) any assets held or managed by a reporting entity in relation to waqf property; or

(d) any other information ancillary to the above.

20-B. Provision of information to reporting entities.− (1) The Chief Administrator shall provide upon request to the reporting entity information about the beneficial ownership and assets of the waqf in the prescribed manner.

(2) The reporting entity may obtain information from a Manager including the beneficial ownership, details of waqf assets and details of beneficiaries or such other information as may be prescribed.]

21. Bar of jurisdiction.- Save as expressly provided in this Ordinance, no civil or revenue court or any other authority, shall have jurisdiction-

(a) to question the legality of anything done under this Ordinance by or at the instance of the Chief Administrator; or

(b) in respect of any matter which the Chief Administrator is empowered by or under this Ordinance to determine or settle; or

(c) to grant an injunction or other order in relation to any proceeding before the Chief Administrator under this Ordinance for anything done or intended to be done by or at the instance of the Chief Administrator under this Ordinance.

22. Effect of orders, etc., inconsistent with this Ordinance.- Every order made and every action taken under this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any document, decree or order of any court, deed, enactment or any instrument having effect by virtue of any such enactment other than this Ordinance.

23. Protection of action taken under this Ordinance.- No suit, prosecution or other legal proceeding shall be instituted against any person for anything which is in good faith done or intended to be done under this Ordinance or the rules made thereunder.

24. Offences.- (1) Whoever obstructs, or offers any resistance to, or impedes or otherwise interferes with-

(a) any authority, officer or person exercising any power or performing any duty conferred or imposed upon it or him by or in pursuance of this Ordinance or otherwise discharging any lawful function under this Ordinance; or

(b) any person who is carrying out the orders of any such authority, officer or person as aforesaid or who is otherwise acting in accordance with his duty in pursuance of this Ordinance;

shall be punished with imprisonment for a term which may extend to five years or with fine or with both.

^[18][(2) Any person who wilfully contravenes any of the provisions of section 20 shall be punished with imprisonment which may extend to five years but shall not be less than one year and shall also be liable to fine which may extend to three times of the amount of income derived from the waqf property but which shall not be less than the benefits derived from the waqf property]

^[19][(3) Any person who intentionally fails to comply with the provisions of section 6 or intentionally conceals any information or provides incomplete or incorrect information to the Chief Administrator as required under this Ordinance, shall be punished with imprisonment which may extend to five years or with fine to pay such amount as may be calculated by the concerned Collector or any other authority duly authorized by the Chief Administrator to do so for the period of factum of waqf property or with both.

(4) The offences punishable under this Ordinance shall triable by a Court of Session.

(5) For contravention of any provision of this Ordinance for which no penalty is provided, shall be punished with fine which may extend to rupees twenty five million.]

25. Power to frame rules.- (1) Government may frame rules for the purpose of carrying into effect the provisions of this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing power, Government may frame rules for all any of the following purposes, namely:-

(a) prescribing the powers and duties of the officers appointed under this Ordinance;

(b) regulating the delegation of any powers by the Chief Administrator to an Administrator or a Deputy Administrator;

(c) prescribing the terms and conditions on which waqf property may be leased or let out;

(d) regulating the manner in which schemes for administration and development of waqf properties shall be prepared;

(e) regulating the conditions of service and conduct of the persons employed under this Ordinance;

(f) regulating the conduct of litigation by or against the Chief Administrator;

(g) prescribing the manner in which the accounts shall be kept;

(h) prescribing the authority for auditing the accounts maintained by the Chief Administrator;

(i) prescribing the syllabus and curricula for the proper education and training of Imams and Khatibs and of other employees of the Auqaf institutions in Punjab;

(j) prescribing and regulating the standards, syllabus and curricula of institutions providing Islamic religious education, by whatever name called, and, where considered necessary in the public interest, the scrutiny of the accounts of such institutions; and

(k) to appoint advisory committee consisting of public representatives, Ulema and other experts.

26. Continuance of actions, etc., taken under Act LVI of 1976.- Everything done or purporting to have been done, action taken, liability or penalty incurred or proceeding commenced, officer appointed or person authorised, jurisdiction or power conferred, rule made or notification or order issued under the Auqaf (Federal Control) Act, 1976 (LVI of 1976) since repealed, shall, so far as it is not inconsistent with the provisions of this Ordinance, continue in force, and so far as may be, deemed to have been done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance.