Case Judgement 16/03/2020, 8*41 AM

2006 C L C 60

[Lahore]

Before Muhammad Akhtar Shabbir, J

Malik MUHAMMAD DIN and 2 others---Petitioners

versus
CHIEF ADMINISTRATOR AUQAF, GOVERNMENT
OF PUNJAB, LAHORE and another---Respondents

Writ Petition No.994 of 2004, decided on 28th June, 2005.

Punjab Waqf Properties Ordinance (IV of 1979)---

---Ss. 3, 4, 7 & 11---Punjab Auqaf Department Delegation of Powers Rules, 1960, R.4---General
Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---
Notification of taking over control of mosque---Withdrawal of Notification---Chief Administrator,
Auqaf vide Notification, had taken over control of a mosque and appointed a manager to manage and
maintain the same---Said Notification, later on, was withdrawn by a subsequent Notification on
reference received from District Nazim and a petition from `Namazian' of said mosque---Subsequent
Notification whereby earlier Notification was withdrawn, had been challenged by petitioner
contending that Administrator Auqaf was not empowered to withdraw earlier Notification---Section
21 of General Clauses Act, 1897, provided that power to make, amend, vary or rescind orders, rules,
or bye-laws were available to the Authority---Authority competent to snake order, in circumstances
had power to undo it, but order could not be withdrawn or rescinded once it had taken legal effect and
certain rights were created in favour of any individual and principle of "Locus Poenitentiae" would be
available---Mosque in question was statedly run by registered Anjuman and it was alleged that
petitioners were not allowing people of other sect to say their prayers in said mosque---Mosque was
meant for the people to offer their prayers and it was right of every Muslim to enter into mosque and
make his prayer in accordance with Injunctions of Qur'an and Sunnah according to his own religious
school of thought---Mosque is for all Muslims of any sect because it was house of `Almighty Allah'---
Right was vested to all muslims, not to a particular person, sect, group or particular school of thought
and it was in the interest of all muslim community of area concerned---Nothing was mentioned in the
impugned Notification of withdrawal that said Notification was issued under direction of any
Minister---Administrator of Auqaf, while issuing impugned Notification, had applied his own mind
accepting request of people of area---Administrator Auqaf, being fully empowered to withdraw
Notification, petition against said Notification was dismissed and issuing of rule "nisi", was declined.

Muhammad Tufail and 2 others v. Chief Administrator of Auqaf and 2 others 1991 MLD 303 and
Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 ref.

Mujeeb-ur-Rehman Kiani for Petitioners.

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Malik Muhammad Jahanzeb Khan Tamman in C. M. No.1111 of 2004.

ORDER
MUHAMMAD AKHTAR SHABBIR, J.--- Facts constituting to the filing of this writ petition are to
the effect that respondent No. l/Chief Administrator, Auqaf, Government of Punjab, Lahore, vide
Notification dated 1-10-1998 in exercise of powers conferred under section 7 of Punjab Waqf
Properties Ordinance, 1979 had taken over and assumed the administration, control, management, and
maintenance of "Jamia Masjid" Tehraran situated in the revenue estate of Tehsil Talagang, District
Chakwal on an area of 14 Marlas containing 8 shops bearing Property No.B-I-22-A. Through the said
notification, respondent No.2 was appointed as Manager of the said Waqf to manage and maintain the
same. Vide the powers conferred under Article 61 of the Punjab Auqaf Department Delegation of
Powers (Rules, 1964), a committee was constituted consisting of 9 members including that of
Chairman and the Secretary vide Notification No.2534 dated 15-10-1998. The notification dated 1-10-
1998 taking over the control of the said mosque had been withdrawn by a subsequent Notification
dated 27-3-2004 on the reference received from District Nazim, Chakwal and a petition from
Namazian of the mosque. The petition filed by one Haji Abdul Hameed under section 1.1 of Punjab
Waqf Properties Ordinance, 1979 before the District Judge, Chakwal challenging the Notification,
dated 15-10-1998 was also dismissed as withdrawn on 26-3-2004 and the Notification had attained
finality.

2. Malik Baz Khan and 5 others had filed C. M. No. 1111 of 2004 for impleading them as respondents
in the writ petition and providing for opportunity of hearing.

3. Learned counsel for the petitioner contended that respondent No.1 was not empowered to rescind,
cancel or withdraw his earlier Notification, which has taken effect and a vested right has been accrued
to the petitioner and the notification could be set aside by the District Judge, if a petition within 30
days of the publication of the notice is preferred before him. Further contended that the respondent
No.1 has delegated his powers to the Committee under the rules and that the principal of "locus
poenitentiae" is attracted to the present case. Further contended that the notification issued on the
direction of Minister or Chief Minister recalling the earlier notification cannot sustain in law. In this
context he has placed reliance on the case of Muhammad Tufail and 2 others v. Chief Administrator of
Auqaf and 2 others 1991 MLD 303.

4. Learned counsel for the appellant in C. M. No. 1111 of 2004 has vehemently opposed the
arguments of the learned counsel for the petitioners contending that respondent No.1 was competent
to recall or rescind the earlier notification under the law. Further contended that the mosque was being
run by registered Anjuman Ahle Sunnat Wal Jamaat" Jamia Masjid Tehraran Talagang and the
petitioners now are not allowing the people of the other sect to say their prayers in the mosque.
Further contended that on the request of the District Nazim, respondent No.1 has withdrawn the
earlier notification. Further contended that it was not an evacuee trust property.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6.The Notification dated 1-10-1998 had been issued for taking over the control and management of
the said mosque under section 7 of the Punjab Waqf Properties Ordinance, 1979. Later on it was
withdrawn by a subsequent Notification.

7. The question that boils down for determination in this case is that whether the notification issued
under section 7 with regard to the "Waqf Property" can be rescinded, altered, varied, recalled or
withdrawn by the Chief Administrator Auqaf.

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8. Remedy under section 11 of the Ordinance has been provided to 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 the 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, judgment, or order of 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 (Rassoomat) 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.

9. Be that as it may, as per section 21 of the General Clauses Act, 1897, power to make, to include, to
amend, vary or rescind orders, rules or bye-laws are available to the authority. The language of
section 21 of the General Clauses Act is reproduced as under:--

"Whereby any (Central Act) or Regulation, a power to (issue notifications), orders, rules, or
bye-laws is concerned, then that power includes a power exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to amend, vary or rescind any
(notifications), orders, rules or bye-laws so issued."

It means that the authority competent to make order has the power to undo it, but the order cannot be
withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any
individual and principle of "locus poentientiae" would be available.

10. As to the arguments of learned counsel for the petitioner that a vested right has been accrued in
favour of the Committee. It is suffice to say that no such notification delegating the power of Chief
Administrative has been placed on the- record. Mosque is meant for the people to offer their prayers.
It is the right of every Muslim to enter into the mosque and make his prayer in accordance with the
Injunctions of Qur'an and Sunnah according to his own religious school of thought. No restriction can
be imposed on any person restraining him to enter into the mosque and joining the religious
ceremonies. The mosque is for all Muslims of any sect because the mosque is the house of "Almighty
Allah". The right is vested to all the Muslims not to a particular person sect, group or particular
school of thought.

11. The arguments of the learned counsel for the petitioners is that the Notification dated 1-10-1998
has taken legal effect and a vested right has accrued to the petitioners and the Chief Administrative
Auqaf has delegated the powers to the Committee constituted by him. The Delegation of Powers Rule,
1960 has empowered the Chief Administrative Auqaf to delegate his powers. Section 3 of the
Ordinance deals with the delegation of powers which for ready reference is reproduced as under:--

"3. Delegation of powers.--- (1) Subject to provisions of the Ordinance and the rules made thereunder,
the power specified in column 2 of the Schedule appended hereto shall be exercised by the officer
mentioned against each in column 3 to the extent referred to in column 4 thereof.

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(2) ???????????????????????.?????????

Section 4 of the Ordinance contemplated that the Chief Administrator may, by an order notified in
the official Gazette delegate any of his powers under the Ordinance to an Administrator or a
Deputy Administrator and may, subject to the provisions of the Ordinance, specify in the said
order the manner in which such powers may be exercised.

From plain reading of provisions of section 4, of the Auqaf Delegation of Powers Rules, 1960, it is
manifestly clear that the power of Chief Administrator can be delegated to anyone to an Administrator or
a Deputy Administrator and subject to the provisions of the Ordinance. It would mean that his power
cannot be delegated except the officers mentioned in Rule 4 of the Delegation of Powers Rules, 1960.

12. So far as the aspect of delegation of powers to the Committee is concerned, the delegator is
empowered to recall his power from the delegatee. Delegation does not imply parting with the powers of
the person, who grants the delegation.

13. In the above circumstances, it is observed that as per General Clauses Act, the power of rescission or
recall of the earlier order is always available to the authority passing an earlier order. In this context
reference can be placed to the case of Muhammad Zakir Khan v. Government of Sindh and others 2004
SCMR 497. The Administrator has recalled the earlier notification on the request of reference received
from the District Nazim Chakwal and the petition from the Namazian of the mosque. It was in the interest
of all the Muslim Community of that area. There is no mention in the notification issued by respondent
No.1 dated 27-3-2004 that the said notification was issued under the direction of any Minister. In this
respect, facts of the case relied upon by learned counsel for the petitioner is not applicable to the present
case. If for the sake of arguments, it is accepted that some political figure/ authority has desired to recall
or rescind the earlier notification. The Chief Administrator respondent No.1 was competent not to comply
with any such direction or instruction. From perusal of notification, it seems that the Administrator while
issuing the said notification for withdrawal of earlier notification dated 1-10-1998 has applied his own
mind accepting the request of the people of the area. Learned counsel for the petitioners has not been able
to persuade this Court to issue a writ in favour of the petitioners.

14. For the foregoing reasons, this petition having no force is1H dismissed and issuing of rule `nisi' is
declined.

H.B.T./1249/L???????????????????????????????????????????????????????????????????????? Petition
dismissed.

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