The petitioners through this Constitutional petition have sought declaration that order of respondent No.1 dated 25- 1-1990 is illegal and without jurisdiciton.
2. The relevant facts are that petitioner No.1 is an Anjuman registered under the Societies Registration Act, 1860, while petitioner No.2 is its president. The Anjuman was formed with the object to reconstruct mosques Civil Quarters, Sheikhupura with extended limits and also to arrange for religious education. The aims and objects of the petitioner are appended as Annexure 'B' while the certificate of Registration is appended as Annexure 'A'. The claim of the petitioner is that it was constituted in the year 1981 with the blessing of the local administration. It is added that the mosque originally was constructed in the year 1928 on an area of about 18 marlas but thereafter Masud Jilani, a respectable of Sheikhupura, moved application dated 30-3-1978 for allocation of more land for extension of the mosque. The application was granted by the then Deputy Commissioner vide order dated 24-5-1979. It is added that thereafter the Anjuman was constituted. It raised funds from private as well as official sources. The Anjuman invited late President and he granted Rs.5 lacs to the mosque while another Rs. 2 lacs were granted by Chief Minister , Punjab. It is concluded that the Project is almost complete and since inception the affairs including reconstruction is managed by the petition er. The grievance of the petitioner is that D.C. all of a sudden proceeded to order dissolution of the present body and order fresh elections and appoint A.C. its administrator while controlling body was to be constituted. The petitioner through this Constitutional petition has challenged this order .
3. The petition was admitted to hearing and notices were issued to the respondent s who have entered appearance and contested the petition and in addition to this the applicants made an application for impleading them as respondents. The same has been disallowed but the learned counsel for the applicants has been heard at length.
4. I have heard the learned counsel for the parties. The learned counsel for the petitioner in support of the petition has argued that the respondent No.1 is neither a Member nor office-bearer of this Anjuman in his private capacity as well as ex officio, therefore, his order is void and without jurisdiction. It is added that the Society can only be dissolved in accordance with the provisions of section 13 of the Societies Registration Act, 1860. The arguments are concluded with the submission that the order is patently mala fide.
5. The learned Additional Advocate-General appearing on behalf of respondents Nos.1 and 2 very candidly and fairly conceded that District Magistrate or Deputy Commissioner does not figure anywhere in the Societies Registration Act, therefore, it is not possible to defend his order dissolving Anjuman and appointing of administrator .
6. On the other hand learned counsel for applicants has argued that the matter has two facets. Firstly , the power of dissolution is with Provincial Government and he could not find out any delegation of this power to Deputy Commissioner . In this behalf he has referred to section 16-A. He also in usual fairness conceded that on this score it is difficult to defend the order of respondents. He however , added that second aspect of the matter is that Deputy Commissioner has to give effect to the wishes of the residents of the locality and in that behalf he can take suitable steps for improving the management of the mosque. The learned counsel in this behalf referred to circular dated 24-9-1984 letter Annexure 'K' dated 17-4-1982 and circular dated 7-4-1975. It is maintained that these circulars have the force of law and in this behalf learned counsel after comparing Article 129 of the Constitution of Islamic Republic of Pakistan with Article 154 of the Indian Constitution has referred to Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab AIR 1955 SC 549. It is submitted that in this view the Deputy Commissioner was competent to dissolve the petitioner and order appointment of administrator .
7. The learned counsel for applicants has also challenged the constitution of the petitioner . The argument is that according to section 1 there should be at least 7 persons to form a society under the Societies Act but in the present case only 6' persons have signed the rules of the society while Sh. Masud Jilani did not subscribe to this formation. It is maintained that this question can be gone into in these proceedings. Reliance is placed on the case of Shanti Sarup v. Radhaswami Satsang Sabha, Dayalbagh Agra and others AIR 1969 All. 248. In this behalf it is submitted that the conduct of the petitioner is also not fair because in Annexure `13' the signatures portion was shown blank in the photo-copy attached with the petition. This was, according to learned counsel, done by putting the blank paper on the last column containing the signatures of the members formin g the society . The purpose is to conceal the fact that Sh. Masud Jilani did not sign. It is added that the affairs of the mosque can only be managed by a Mutwalli and in this behalf learned counsel has referred to Muslim Law. The arguments were concluded with the submission that the petition is also hit by the provisions of section 92 C.P.C. and in this behalf reliance is placed on the judgment of Hon'ble Supreme Court in the case of S. Sharif Ahmad v. Chairman, Screening Committee, Lahore and another 1987 SCMR 367 .
8. The learned counsel for the petitioner while replying to the points raised by the petitioner has submitted that Masud Jilani, the convener was very much active in the formation of the Society and he has been participating in the meetings. In this behalf on the one hand he has referred to resolution dated 23-8-1985. On the other hand, he has referred to Annexures 'G' and 'L' with the parawise comments submitted by respondents Nos.1 and 2 that said Masud Jilani was recognised as President of the petitioner but also the petitioner was acknowledged as a legal body , therefore, the respondents arc now estopped by their own conduct from disputing the entity and formation of the petitioner and that too after a period of 12 years.
9. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record. The admitted position is that the respondent No.1 passed the impugned order in complete ignorance of the law and facts. The same is absolutely illegal, void and without jurisdiction. The learned Additional Advocate- General clearly , fairly and candidly while Syed A Jamshed Ali, Advocate for the applicants impliedly conceded vires of the order when he referred to section 16-A of the Societies Act to urge that the power of dissolution rests with the Provincial Government. However , the tried to justify the order , therefore, I am straightaway taking his arguments to find out whether the same furnishes any justification to uphold the impugned order or not.
10. The first submission of the learned counsel for the applicants was that the petitioners are to show that the Wakif entrusted the management of the mosqu e to the petitioner . The learned counsel has referred to Muslim Law by Kashi Prasad Saksena, 1963 Edition, to argue that a valid Wakf comes into existence only with the consent of the owner . The precise reply to this argument is contained in the order dated 24-5-1979 of the then Deputy Commissioner .
The same is appended as annexure 'G' with the report submitted by the respondent No.1. The relevant portion reads as under:-- "While I fully appreciate the requiremen ts of Sub-Engineer's Quarter , but Exec utive Engineer Building cannot earmark it without the approval of the District Collector . Even if for arguments sake he could do it, the requirements for the mosque to extension and future extension have priority over the proposed construction of Sub-Engineer's Quarter . As such I allow the proposed extension of Mosque. I further approve that Management Committee may be constituted and Mr . Masud Jilani to act as convener of the Committee."
This is not all. Mr. Masud Jilani submitte d a plan for reconstruction to the Munic ipal Committee as is clear from memo dated 30-4-1985 from Chairman, M.C., Sheikhupura to respondent No.1. The copy of the same was endorsed to Sh. Masud Jilani as President. Above all the Anjuman was constituted and registered in 1981 but nobody including the respondents raised a little finger either to its constitution or its assumption of management of the mosque. This also adversely reflects to the claim of the respondent No.1 as to the presidency of the society .
The petitioner was not only registered but it has been functioning as such and submitting the proceedings to the Registrar of Societies.
11. The other objection was that the said Sh. Masud Mani did not sign the aims and objects of the Society .
Therefore, there were not 7 Members as required under section 1 and that the petitioner has submitted the aims and objects but shown the last column pertaining to signatures as blank. It is added that this Court can examine the legality of the constitution of the Society and reliance has been placed on the case of Shanti Sarup v. Radhaswami Satsang Sabha, Dayalbagh Agra and others AIR 1969 All. 248. The same is not relevant as Civil Revision had arisen from a civil suit where issues were framed and evidence was led. On the other hand, in the present case no sanctity can be attached to Annexure 'R/2' appended with their application because the same is just photo copy and nobody knows at what stage of formation of the Society this was obtained. The applicants have not cared to obtain certified copies of the aims and objects of the Society from the Registrar . This also explains the absence of signatures on the copy appended by the petitioners with the petition. There is no misconduct on the part of the petitioners as submitted by the learned counsel for the applicants. The photo copies submitted by the parties pertain to dif ferent stages, therefore, the same are of no legal consequence.
12. The other submission is that Deputy Commissioner was appointed as President and was empowered to take over the management of the Committee . In this behalf, the learned counsel for the applicants has referred to circulars/letters dated 24-9-1984, 7-4-1954, 25-9-1939 and 4-10-1980, which was noted in the letter of Chairman, M.C., Sheikhupura dated 17-4-1982. It is submitted that these circulars have the force of law. In this behalf, the learned counsel for the petitioners has referred to Article 129 of the Constitution of Islamic Republic of Pakistan and compared it with Article 154 of the Indian Constitution. It is submitted that in our Constitution the key words are 'executive authority' while in the Indian Constitution the key words are 'executive power' and for remaining part both the Constitutional provisions are similar . It is added that the term 'executive power' came for interpretation in the case of Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab AIR 1955 SC 549. In this case it was alleged that the Education Department of the Punjab Government in pursua nce of its so-called policy of nationalisation of text-books has issued a series of notifications regulating printing, publication and sale of these books, which have not only placed unwarranted restriction on the rights of the petiti oners to carry out their business but had practically ousted them from the business. These notifications were challenged by the petitioners through the Constitutional petition, which was dismissed. The appeal also met the same fate and the notifications were held valid. There is no cavil with the legal proposition. The circulars relied on by the learned counsel for the applicants are valid and legal but this will not advance the case of the applicants any further because the case of the petitioners was processed in accordance with these circulars, which are as under:--
(i) It is letter dated 17-4-1982. The same is not relevant because through it a Committee was constituted to grant permission for the construction of the mosque and other religious monuments. The text of the letter reads as under:-- "It is intimated that the Management Committee of the Mosque situated at Civil Quarters Road has submitted a building plan to Municipal Committee Sheikhupura for the extension in the, existin g Mosque. It is pointed out that Government of the Punjab Local Governm ent & Rural Development Department vide letter No.S-III/2-27/81 dated 4-10-1981 has constituted a Committee consisting of the following members for according permission for the construction of Mosque and other religious monuments:
(i) Deputy Commissioner Convener ,
(ii) Dy: Dir: (T own Planning) H & PP Divn. Member
(iii) XEN (Buildings) -do-
(iv) Xen (PHED) -do-
(v) Mayor/Chairman of the Municipal Corp:/Committee concerned or their representative."Member/Secy: This is to be read with memo dated 3-4-1985 from Chairman to Deputy Commissioner . The relevant portion of the same reads as under:-- "It is, therefore, requested that the building plan submitted by the President Jamia Tohidia for the construction of mosque may please be placed before the District Religious Committee, constituted by the Government."
It is clear from the reading the both letters together that the District Religious Committee was constituted by the Government and the Chairman, M.C., Sheikhupura, has accordingly asked for placing the building plan of the mosque before the said Committee. The Committee has no other connection with the mosque. These letters if minutely gone through demolish the complete fabric of the structure tried to be built by the learned counsel for the applicants. It is clear from these letters that the Society was functioning as such to the entire knowledge of the District Administration including Deputy Commissioner;
(ii) The second document relied on by the learned counsel for the applicants is circular dated 7-4-1954. This again is not relevant as is clear from the subject which reads as under:-- "Subject: Construction of mosques in the compounds attached to Government buildings."
It is nobody's case that the civil quarter's mosque is situated in any compound or that it was built after issuance of this circular . The learned counsel for the applicants submitted that the word 'premises' if considered in wider scope it includes the locality . The argument is clearly against the text.of the circular . The same is to be read as a whole and it is clear that it covered only the mosque to be built in the compound of the premises. It has nothing to do with the other mosques to be built or the mosques already in-existence.
(iii) The third document to which the learned counsel has referred is a memorandum dated 25-9-1939. This is again irrelevant because through this Executive Engineers were directed to prepare the lists of places of worships of different religions in Punjab and to ensure that no place of wordship is constructed on Government's land without prior approval of the Government of Punjab; and
(iv) Lastly , the learned counsel for the petitioners referred to circular dated 24-9-1984. This is again irrelevant. This was issued to all Mayors/Chairmen, Municipal Corporations/Committees and Town Committees in the Punjab. It was pointed out that it has come to the notice of the Government that construction of religious buildings/places outside Housing Schemes has led to tension amongst various religions, religious factions and sects and in order to obviate any ugly situation it was thought necessary to make institutional arrangements for regulating the construction of places of worship within municipal limits. It was approved by the Government that commitees be constituted at District levels with Deputy Commissioner as Convener . This is again irrelevant because this only stressed the need of Committees for dealing with new places for worship within Municipal limits. It was in fact just repetition of Commitees constituted under the circular letter dated 4-10-1981, as is clear from -the memo. of the Chairman, M.C. dated 17-4-1982 to Depu ty Commissioner , Sheikhupura. The same has already been reproduced in the earlier portion of this judgment.
13. The learned counsel in the end submi tted that the membership of the petitioner is limited to 11 members. It is in fact closed door management with no access to the others. It is, therefore, concluded that following principle of judicial restraint as laid down by the Hon'ble Supreme Court in the judgment reporte d as 1978 SCMR 367 the writ should be refused. The submission is controverted by the Minutes Book, accord ing to which the strength of the members is 42.
14. The petitioners like all other citizens have right of to be dealt with strictly in accordance with the law. This is an inalienable right of every person, natural or legal, guaranteed by the Article 4 of the Constitution of Islamic Republic of Pakistan. The respondents have over-stepped their jurisdiction and it is clearly wanton and careless exercise of power . The same cannot be protected and given blessing.
15. The result is that this petition is allowed and the impugned order and proce edings of the respondents are declared to be illegal and without jurisdiction.