Sakina (Late) through L.Rs Vs Govt of KP and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.KHAN BENCH

(Judicial Department)

W.P.No.636-D/2025.

Sakina (Late) through L.Rs Versus Govt. of K.P and others

JUDGMENT

For petitioners: Mr. Zafar Iqbal Awan, Advocate.

For respondents: Mr. Ghulam Muhammad Sappal, Addl: A.G.

Date of hearing: 03.12.2025.

INAM ULLAH KHAN, J.- Through this single judgment, the following nine connected writ petitions are being decided together, as they arise out of identical facts, common questions of law, and challenge the same impugned Notification No.SO(Auqaf-I)/2-20/2025/Kotli, dated 18.07.2025, issued by the Government of Khyber Pakhtunkhwa, Auqaf, Hajj, Religious & Minority Affairs Department:

1)W.P.No.636-D/2025 (Sakina (Late) through L.Rs vs. Govt. of K.P and others).

2)W.P.No.637-D/2025 (Sakina (Late) through L.Rs vs. Govt. of K.P and others).

3)W.P.No.640-D/2025 (Muhammad Ramzan vs. Govt. of K.P and others).

4)W.P.No.641-D/2025 (Alim Jan vs. Govt. of K.P and others).

5)W.P.No.642-D/2025 (Aziz Ullah vs. Govt. of K.P and others).

6)W.P.No.643-D/2025 (Tariq Mehmood vs. Govt. of K.P and others).

7)W.P.No.644-D/2025 (Rabnawaz Khan vs. Govt. of K.P and others).

8)W.P.No.663-D/2025 (Muhammad Ramzan vs. Govt. of K.P and others).

9)W.P.No.752-D/2025 (Ali Ullah vs. Govt. of K.P and others).

2.In essence, the petitioners claim to be lawful leaseholders of Waqf properties located in Kotli Imam Hussain Sarai, D.I.Khan, consisting of houses, shops, plazas, markets and open plots. By virtue of the impugned notification dated 18.07.2025, the Auqaf Department terminated their lease agreements under Section 9-A of the Waqf Properties Ordinance, 1979 (as amended in 2021), on the basis of Provincial Cabinet approval dated 10.04.2025. Feeling aggrieved, the petitioners approached this Court invoking constitutional jurisdiction.

3.The learned counsel for the petitioners argued that no element of public interest or public purpose has been disclosed in the impugned notification. The petitioners have been regularly paying lease amounts, rent and electricity charges, thereby maintaining a valid subsisting tenancy. No show-cause notice was issued, violating due process under Articles 4, 9, 10-A, 14 and 23 of the Constitution. As long-standing leaseholders in possession,

the petitioners cannot be dispossessed without following the mandatory procedure envisaged under Section 9 of the Ordinance.

4.The learned Addl: A.G. contended that the impugned notification is backed by statutory power under Section 9-A, which authorizes revocation of leases during currency of agreement in public interest. Provincial Cabinet approval, dated 10.04.2025, formed the basis of the decision. After expiry of leases in June 2020, the petitioners became unauthorized occupants; mere payment of rent does not create renewal or any vested rights. Auqaf Department is a trustee of Waqf property and must secure such property for religious and charitable purposes. No fundamental right stands violated because occupation under an expired lease is not constitutionally protected.

The matter being contractual/administrative, the writ petitions are not maintainable. The lease agreements of the petitioners expired in June 2020. No renewal orders exist on record. Their continued occupation is, therefore, without legal sanctity.

5.Arguments heard and record perused.

6.At this stage, it is appropriate to reproduce Section 9 of the Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979, as the petitioners’ arguments heavily rely upon

procedural protections allegedly available under Section 9.

It reads as under:

―Section 9 – Power to terminate a lease or resume a tenancy of breach of conditions.-- (1) If the Administrator is satisfied that a lessee or 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 authority and state his objections to an order being made for the termination of lease or resumption of the tenancy.

(2)if the lessee or tenant to whom a notice is given under sub-section (1) may state that the breach of the conditions of the lease or tenancy specified in the notice is capable of rectifications and undertake to rectify it.

(3)If the Administrator is satisfied that the breach is capable of rectification, it shall allow to the lessee or tenant, as the case may be, reasonable time which shall not be less than thirty days or more than sixty days, to rectify it and may make an order terminating the lease or resuming the tenancy if the lessee or tenant fails to rectify the breach within the time allowed.

(4)Where an order terminating the lease or resuming the tenancy has been passed under the provisions of sub-section (3), the Administrator may forthwith re-enter upon the waqf property and resume possession of it, subject to the payment of compensation to be fixed by the Administrator for un-reap and un-gathered crops or for the improvements, if any, that may have been made by the lessee or tenant under the terms of the lease or

tenancy or with the permission of the Administrator.

(5)If a lease terminated, or tenancy resumed under sub-section (3), 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 sch person to whom allotted such property.

7.Section 9 deals with the power of the Administrator to terminate a lease or resume tenancy on account of breach of conditions. The section establishes a four-stage procedural mechanism. Under Section 9(1), if the Administrator is satisfied that a breach has occurred, a notice must be issued to the lessee to appear and state objections. This provision applies only where the lease is still valid and subsisting. Section 9(2) allows the lessee to state that the breach is capable of rectification.

Section 9(3) empowers the Administrator to allow 30–60 days for rectification, failing which the lease may be terminated. Under Section 9(4), after termination for breach, the Administrator may resume possession, subject to compensation for un-reaped crops or improvements made with permission. Section 9(5) provides a mechanism whereby compensation paid to outgoing lessees can be recovered from the new allottee. The entire structure of Section 9 presupposes a valid and existing lease agreement, a breach by the lessee, and termination due to that breach. Thus, Section 9 does not apply where the

lease has already expired by passage of time, because after expiry, the lessee is no longer in lawful possession, and there can be no question of “breach of conditions” of a non-existent lease.

8.Section 9-A was inserted through the 2021 amendment. It reads:

9A. Revocation of lease agreement.— Notwithstanding anything contained in this Ordinance, the Chief Administrator may, with the prior approval of Government, at any time during the currency of lease agreement, revoke such lease agreement, if deemed appropriate in the public interest.

This provision has three significant features:

1.Non obstante clause – It overrides the entire ordinance including Section 9.

2.Power to revoke – No breach of conditions is required; revocation may be made solely on the basis of public interest.

3.Prior approval of Government – Here, the Provincial Cabinet constitutes the competent authority.

Thus, Section 9-A is a separate and independent source of power, not subject to the procedural requirements of Section 9.

9.After evaluating the statutory scheme, the material placed on record, and the rival submissions, this Court finds that, except for W.P.No.663-D/2025, the admitted position in all other connected petitions is that the respective lease agreements stood expired by efflux of

time in June 2020 and no renewal order was ever issued by the competent authority. Mere deposit of rent after expiry does not create any vested right; it amounts only to permissive holding-over, which is legally non-protective in the context of Waqf properties. Therefore, petitioners in these petitions cannot invoke Section 9, as their leases had already extinguished. However, in W.P.No.663-D/2025, the petitioner’s lease agreement has not expired, placing that petition on a distinct factual footing. Nonetheless, even a subsisting lease can be revoked under Section 9-A of the Ordinance, 1979, which contains a non-obstante clause and overrides Section 9. The record establishes that the Provincial Cabinet, in its meeting dated 10.04.2025, approved retrieval of the subject Waqf properties. The impugned notification dated 18.07.2025 is thus backed by statutory authority and no mala fide or jurisdictional defect is shown. Accordingly, the impugned notification warrants no interference.

10.The record further reveals a sequence of official correspondence demonstrating that the Provincial Cabinet not only approved the sale/retrieval of the subject Waqf land but also directed assessment of compensation relating to constructions raised by leaseholders. The Deputy Commissioner, D.I.Khan, through letter, dated 30.04.2025, forwarded to the Section Officer (Auqaf) the Assessment Report prepared by the Executive Engineer,

C&W (Building) Division, D.I.Khan, pursuant to Cabinet directives issued in its 30th meeting held on 10.04.2025 regarding Agenda Item No.13 (Sale of Waqf Property Kotli Imam Hussain). This included Executive Engineer’s letter No.781/6M, dated 24.04.2025 and the requisite valuation report of shops and houses situated opposite Kotli Imam Hussain. The Government of Khyber Pakhtunkhwa, Auqaf, Hajj, Religious & Minority Affairs Department, through letter, dated 10.04.2025, informed the Deputy Commissioner that the Provincial Cabinet had approved the sale of the subject land by the Auqaf Department/Board of Revenue, and directed assessment of compensation for constructions made by the leaseholders, if any. Pursuant thereto, the Deputy Commissioner, vide letter, dated 14.04.2025, directed the Executive Engineer, C&W Building Division, to prepare and furnish the assessment. In compliance, the Executive Engineer, through letter, dated 24.04.2025, submitted the comprehensive Assessment Report, valuing the constructions at Rs. 23,020,900/-, for further necessary action.

11.In view of the foregoing discussion, all nine writ petitions stand dismissed. However, since the Provincial Cabinet itself mandated assessment of compensation and the competent authorities have already completed the exercise culminating in the Assessment Report, dated

24.04.2025, the respondents are directed to finalize and pay the assessed compensation to the petitioners strictly in accordance with law. The entire process shall be completed within 60 days from the date of receipt of this judgment.

Announced.

Dt:03.12.2025. - Sd/- Imran/* JUDGE

- Sd/-

JUDGE

(D.B)

Hon’ble Ms. Justice Farah Jamshed Hon’ble Mr. Justice Inam Ullah Khan