MAIN CASE C.M No. 1-C/2013.
C.M. No. 1763/2014.
The instant petition has been filed by the petitioner through its president stating therein it is a Madrissah which was founded in the year 1962. The petitioner was duly registered under the Societies Registration Act, 1860, with the Registrar Joint Stock Companies, Jhelum, on 14.10.2006. The petitioner is affiliated with Wafaq-ul-Madaras Al- Arabia, Pakistan. The petitioner is engaged in imparting education to the local students. The petitioner was operating from an old building, however , with the passage of time the building became old and dilapidated. In the meantime, the number of students of the petitioner increased, therefore, the residents of the village earmarked a piece of land in the village for constructi on of the new building of the petitioner and also created a waqf in this respect. The petitioner started construction of its new building, however , in the year 2009 the Tehsil Municipal Administration Jhelum (Respondent No. 4) served a notice upon the petitioner requiring it to stop construction of its new building on the ground that the petitio ner had not obtained the requisite sanction of its site-plan. The petitioner stopped its construction work and through the letter , dated 01.09.2009, duly informed Respondent No. 4 about the stoppage of work. Thereafter , on 07.09.2009, the petitioner moved an application for approval of the site-plan of its new building. The matter kept on pending till the year 2011, when on 11.07.201 1 a meeting of the District Mosque Committee, Jhelum, was held in the office of Respondent No. 2 and it was decided that the requisite NOC be issued to the petitioner , however , through the impugned Letter/Order No. F-226/4126/HC(G), dated 26.09.201 1, issued by Respondent No. 2, the petitioner has been informed that in its meeting held, on 14.09.201 1, the District Mosque Committee declined to issue the requisite NOC for construction of the Madrissah. The petitioner has, therefore, prayed as under: "... submitted that the impugned order passed by the District Co-ordi nation Officer Jhelum dated 26.09.201 1 in connection with the meeting of Mosque committee dated 14.09 .2011 being mala fide, illegal, void and against the constitutional fundamental right may please be set aside and respondents may please be directed to sanction the site-plan of the petitioner and to restrain them not create any hindrance in construction of the educational institution of the petitioner ..."
2. The learned counsel for the petitioner submits that the impugned letter/order dated 26.09.201 1, which is based on a decision of the District Mosque Com mittee, meeting held, on 14.09.201 1, is mala fide, illegal and void given the fact that previously in its meeting held, on 11.07.201 1, the District Mosque Committee decided that the NOC for construction of the Madrissah may be issued to the petitioner .
3. Submits that the petitioner has been performing the function of imparting education to the students of the locality since the year, 1962. The petitioner is duly registered with the relevant Authorities, however , the respondents have illegally and mala fide withheld the requisite NOC to construct the new building of the Madrissah. Prays that a direction may be issued to the respondents to accord the necessary NOC in accordance with the law .
4. The learned Addl. A-G., refers to the report and parawise comment's. Submits that initially the petitioner undertook the construction of its new building/Madrissah without obtaining the requisite NOC from the District Mosque Committee and/or approval of its site-plan by Respondent No. 4. However , upon receipt of the petitioner's application for issuance of the NOC and sanctioning of the site-plan it was forward ed to the TO (P&C) for a report.
Thereafter the application of the petition er, along with the report of the TO (P&C) of Respondent No. 4, was forwarded to the District Coordination Officer/Chairman District Mosque Committee, Jhelum (Respondent No. 2). It was further decided to place the matter before the District Planning and Design Committee, Jhelum, in terms of the Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2009, to the extent of approval of the site-plan. The matter was further conside red and it was decided in the meeting of the District Mosque Committee, held on 11.7.201 1, that the requisite NOC for construction of the Madrissah may be issued, however , since the issue of the approval of the site-plan of the Madrissah was pending with Respondent No. 4, therefore, it was decided that its approval be discussed in the meeting of District Planning and Design Committee, Jhelum, to be held shortly (Copy Annexure-A to the report and parawise comments).
5. Further submits that the next meeting of the District. Mosque Committee was held, on 14.09.201 1, wherein the case of the petitioner was taken up again . The participants of the meeting were informed by Respondent No. 2 that a report from the Intelligence Agencies had been received, according to which the petitioner's president and one of its office bearers, namely Qari Shabbir and Hafiz Abdul Jabbar , respectively , are both affiliated with the Sipah-e- Sahaba Pakistan, a banned organization. It was further informed that Hafiz Abdul Jabbar had received Jihadi training from Kashmir and Afghanistan and had currently joined the MQM. The meeting was further informed that the construction of a large basement in the proposed building had also created doubts in the minds of the local residents. (The petitioner/Madrissah was based in Village Sukha, Tehsil & District Jhelum. In the said Village only 3 or 4 houses of persons belonging to the Deobandi school of thought existed whereas the remaining population belongs to the Brailvi school of thought. As a consequence, grave concern had been expressed by the majority population about establishment of the Madrissah. The meeting was further informed that the construction of the Madrissah could lead to a conflict between persons belonging to the Deobandi and Brailvi schools of thought in the village. The meeting was also informed that the proposed Madrissah is located right next to the main road which is the convoy route for transporting ammunition from COD Kala to the rest of Pakistan, therefore, the possibility of hindrance to the communication network of COD Kala could not be ruled out (Cop y Annexure-B to the report and parawise comments).
6. Submits that the report/matter was discussed at length in the meeting and the Committee unanimously resolved that the NOC, which was granted to the petitioner for construction of the Madrissah, on 15.07.201 1, may be withdrawn, with immediate ef fect (Copy Annexure-B to, the report and parawise comments.
7. Further submits that the matter of the approval of the site-plan of the new building of the Madrissah came up before the District Planning & Design Committee, Jhelum, on 24.09.201 1. And in view of the decision of the Mosque Committee, Jhelum, dated 14.09.201 1, the District Planning & Design Committee, Jhelum, rejected the approval of the site-plan of the Madrissah due to non-clearance by the District Mosque Committee, Jhelum (Copy Annexure-C to the report and parawise comments).
8. Further submits that in the above circumstances the requisite NOC cannot be granted to the petitioner . Further submits that the petition is, even otherwise, not maintainable as the petitioner has not exhausted the statutory remedy of appeal before approaching this Court.
9. The learned counsel for Respondent No. 4 adopts the arguments of the learned Addl. A-G., and prays for dismissal of the petition.
10. The learned counsel for the petitioner calls into question the veracity of the report of the Intelligence Agencies.
He reiterates his earlier arguments and submits that the petitioner is performing a public service in the form of imparting education to the local students. The refusal by the respondents to grant the requisite NOC is not warranted under the law .
11. I have considered the arguments of the learned counsel for the petitioner , the learned Addl. A-G., and the learned counsel for Respondent No. 4. I have also gone through the record with their assistance. The learned counsel for the petitioner has questioned the stance of the respondents maintained by them through the report and parawise comments. To say the least this amounts to the petition being based on disputed questions of fact. It is settled law that this Court in the exercise of its constitutional jurisdiction normally does not determine questions of fact. Moreover , the learned counsel for the petitioner has been unable to justify the non-exhaustion of the remedy of appeal before approaching this Court in its constitutional jurisdiction. He has similarly failed to establish that the remedy of appeal was neither ef ficacious nor speedy in the facts and circumstances of the case.
12. There is another aspect of the case and that; is to the effect that subsequent to the passing of the impugned decision of the District Mosque Committee , Jhelum, dated 14.09.201 1, the District Planning and Design Committee, Jhelum, in its meeting, held on 24.09.201 1, rejected the approval of the site-plan of the Madrissah due to non- clearance by the District Mosque Commi ttee, Jhelum. Annexure-C to the report and parawise comments refers.
As will be clear from the prayer clause quoted in Para 1, above, the petitioner does not appear to have challenged the said decision of the District. Planning & Design Committee, Jhelum. The petition is, therefore, not maintainable on this score also.
13. Under the circumstances, I am not persuaded to intervene in the matter . The petition is accordingly dismissed with the observation that the petitioner may pursue the alternative remedies, available to it, under the law, if so advised.