' This is an appeal against decision, dated the 10th November, 1970, made by the District Judge, Sargodha, whereby he dismissed a petition filed by the appeallant, Sher Shah, against the Administrator Auqaf, West Pakistan, Lahore and others, challenging Notification No,1(152) Auqaf/68, dated the 6th March, 1970, whereby certain property was declared to be Waqf property. The application was filed on 2nd June, 1970. According to section 7 of the West Pakistan Waqf Properties Ordinance, 1959, period of limitation for making such a petition is 30 days from the date of publication of the Notification. Since the petition submitted by the appellant was filed after running out of the said period, it was dismissed as time-barred, without going into the merits of the case.
Hence this appeal.
2. Plea raised by the appellant was that disputed property was his private property and not a Waqf property and, therefore, the notification was invalid. It was also averred by him that he filed the petition as soon as he came to know of the notification, without wasting any time.
3. It was contended by learned counsel for the appellant that the appellant did not come to know of the notification till the petition was filed by him and, therefore, the petition deserved to be treated as within time. His petition was also accompained by an application, under section 5 of the Limitation Act, 1908, for condonation of delay in making the petition. He cited Muhammad Ishaq v.
Chief Administrator of Auqaf, Punjab PLD 1977 Supreme Court 639 to support his plea.
4. Learned Counsel for the appellant did not press his prayer for condonation of delay in the filing of the petition but strenuously argued that the petition was within time inasmuch as it was filed within one month of the knowledge of the appellant. According to him, it was obligatory for the Auqaf authorities to serve a copy of the notification on the appellant but as this was not done, the period of limitation would not start from the date of the notification. He heavily relied on the following observation appearing in the cited case of Muhammad Ishaq:-- "We are further of the view that a notification under section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator Auqaf had declared to be Waqf."
5. In reply, it was submitted by learned counsel for the respondent that facts of the case under report were quite different from those of the case in hand and, therefore, the cited case was of no help to the appellant. As for above observations of the Supreme Court, his submission was that it was in the nature of an obiter dicta and did not lay down law obliging the authorities to serve copy of notification on the person in possession of the property which is declared to be Waqf property.
Argument proceeds that in section 7 of the said Odinance no such requirement has been laid down.
6. I have carefully gone through the case of Muhammad Ishaq. Main grievance voiced in that case was that although the notification was printed in the official Gazette on 30th September, 1969 yet copies thereof did not reach the Government Book Depot till 23rd October, 1969. Petition in the cited case was filed on 15th November, 1969. In support of the above plea, a certificate of Manager, Works II, Government Press, Punjab, Lahore, was also placed on the record. Allegation made by the appellant in the case under report was that he came to know of the notification on 25th October, 1969 when an officer of the Auqaf Department auctioned standing crops of the land involved. In the circumstances spelt out above, the Supreme Court ruled as follows:-- "It is common sense that the clause 'within 30 days of the publication of such notification' in section 7 of the Ordinance means that an application contesting the legality of the notification should be filed within 30 days of the time when the notification is brought to the notice of the general public by a normal mode. In the instant case this could not have happened till 23-10-1969 when the Gazette was first delivered to the book depot in the printing press. To hold otherwise would be contrary to justice and good conscience as it would ascribe an intent to the Legislature to deprive a citizen of valuable, property rights by merely printing a notification and not giving it proper publication."
' Having given the above verdict, the Supreme Court was pleased to observe as under:- "After printing, the notification must be passed on to the sales depot and displayed prominently at suitable public places. We are further of the view that a notification under section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator of Auqaf has declared to be Waqf."
7. In the instant case, it is not the plea of the appellant that the notification in question did not reach the Book Depot in time or was not displayed prominently at suitable public places. What has been stated by learned counsel for the appellant is that the notification was not served on the appellant. This plea does not find mention in the petition or in the application under section 5 of the Limitation Act. I have given anxious consideration to the observations of the Supreme Court with regard to the service of the notification on the person in possession of the property which the Administrator Auqaf has declared to be Waqf. Even if it is obiter dicta, due regard has to be shown to it. My difficulty was, however, solved by subsequent observations of the judgment of the.
Supreme Court in which it was held that in the cited case period of limitation would start from 23rd October, 1969 and not from 30th September, 1969. Now, 23rd October, 1969 is the date of the placement of the notification at the Book Depot for sale and not the date, namely, 25th October, 1969 on which possession of standing crops was allegedly taken from the appellant by an Officer of the Auqaf Department. If intention of the Supreme Court had been that the period of limitation should start from the date of the knowledge of the person who is in possession of the property, the Supreme Court would have observed in the case under report that the period of limitation would start from 25th October, 1969, i.e,, the date on which the person in possession of the property involved in that case got knowledge of the notification on auction of standing crops by the Auqaf Department but this was not done. I am, therefore, of the considered view that in the cited case Supreme Court interfered with the decision under challenge due to non-availability of the notification in question for sale till 23rd October, 1969 and not on account of want of knowledge of the appellant. It is also noteworthy that in the instant petition it was stated by the appellant that he came to know of the notification in question before the petition was filed. According to his averment in paragraph 11 of the petition, which was drafted on 2nd June, 1970, he learnt of the notificatiion on 31st May, 1970 In paragraph 3 of his application for condonation of delay, however, he said that he filed the petition as soon as he came to know of the notification. The petition was filed on 3rd June, 1970. This shows that the appellant learnt of the notification on 3rd June, 1970.
There is a clear contradiction on the part of the appellant which does not reflect well on his good faith. He, therefore, does not deserve any leniency in the matter of limitation even if the Court has discretion to show such leniency.
8. In view of above discussion, I cannot help endorsing the order of the learned District Judge dismissing the petition on the ground of limitation. This appeal, accordingly, fails. It is dismissed with costs.