Facts constituting to the filing of this writ petition are to the effect that Respondent No, 1/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 Power (Rules 1960), 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 The notification dated 1.10.1998 taking over the control of the said Mosque had been withdrawn by a subsequent notification dated 27.3.2004 on the reference received from District Nazim, Chakwal and a petition from Namazian of the Mosque.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 11 of Punjab Waqaf 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Ordinance, 1979 before the District Judge, Chakwal challenging the Notification dated 15.10.1998 was also dismissed as withdrawn on 26.3.2004 and the Notification had attained finality.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, 1111/2004 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 two others vs. Chief Administrator of Auqaf and two others (1991 M.L.D. 303).
4. Learned counsel for the application in C.M. No, 1111/2004 has vehemently opposed the arguments of the learned counsel for the petitioners contending that Respondent No, 1 was competent to re- call or rescind the earlier notification under the law. Further contended that the Mosque was being run by registered Anjuman Ahle Sunnat Wal Jamaat' Jamia Masid 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. Lateron 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.
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 (Rasoomat) mention 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 vexatious or delay.
9. Be that as it may, as per Section 21 of the General Clause 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), order 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 poenitentiae" 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 Quran 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 he 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 affect 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 there under, 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.
(2) -------------- Section 4 of the Ordinance contemplated that the Chief dministrator 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 any one 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 vs. Government of Sindh and others (2004 SCM R 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 is dismissed and issuing of rule 'nisi' is declined.