IHSAN UL HAQ CHAUDHARY, J.- The petitioners through this Constitutional petition has sought a declaration that the action of the respondent No. 1 in denotifying property in dispute is illegal and without lawful authority.
2. The relevant facts are that one Mian Qurban Ali was owner of land measuring 4 kanals comprising of Khasra Nos: 5549,5497 to 5499. He constructed a mosque Usmania, Madarisa with hostel for students etc. He was a pious man, therefore, he created a Waqf-ul-Aam. This Waqf was for Muslim Umma and with its creation the property vested in Almighty God. Thereafter 9 shops were constructed to cover the expenses of these institutions. It is added that the residents of the locality including the petitioners contributed generously for the completion of this Project.
Subsequently 9 more shops were added with the contribution of the public. Mian Qurban Ali, after his death was buried in the Ihata of the Madarisa. It is alleged that the respondent No. 2 and 3 claimed portion of the land attached to these institutions and this gave rise to the litigation on the civil and revenue sides. It is pleaded that ultimately the followers of late Mian Qurban Ali made an application to respondent No. 1 to take over the property. The respondent No. 1 after observing the formalities issued notification of take over on 2.3.1988. It is alleged that thereafter respondents No. 2 and 3 illegally maneuvered order of denotification the property as Waqf. This obliged the petitioners to file present Constitutional petition.
3. The petition came up for preliminary hearing on 2.5.1990 when respondent No. 1 was directed to submit report and instruct its legal advisor to be present alongwith the record. The preliminary arguments were heard on 7.7.1990. The petition was admitted to hearing.
4. The learned counsel for the petitioner in support of the petition has argued that Auqaf Deptt, proceeded to issue notification dated 23.1988 under section 7 of Punjab Waqf Properties, Ordinance, 1979 after fully satisfying itself as to the status of the property. It is submitted that respondents No. 2 and 3 exercising political influence has maneuvered order of denotification from the then Minister, Auqaf. It is submitted that Minister does not appear in the scheme of Waqf Properties Ordinance, 1979 anywhere and his order is nothing but a nullity in the eye of law. The arguments are concluded with the submission that the whole exercise is malafide and this way the Waqf property is being converted into private property.
5. On the other hand, Mr. Riaz Kiyani, Advocate, for respondent No. 1 argued that although Minister ordered the denotification but respondent No. 1. Has not given effect to the same so far and he will exercise the jurisdiction in accordance with law and facts on record. While learned counsel for respondent No. 2 and 3 submitted that the petition is premature as no order has been passed in pursuance of the direction of the Minister, Auqaf. It is added that the Minister was fully justified to pass the order.
6. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and relevant provisions of Waqf Ordinance, 1979. The properties are taken over under section 7 of the Ordinance which reads as under.- Section 7 "Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act 1863 (XX of 1863), or any other law l or the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority or in any proceeding pending before any Court or other authority, The Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a Waqf property.
Provided that....................... "
7. The admitted position is that there is no provision in the Waqf Ordinance, 1979 (hereinafter to be referred as Ordinance, 1979), as to denotification. However, the aggrieved person can petition to District Judge against the notification of take-over under section 11 seeking declaration that property is not Waqf property or it is a Waqf property within the limits stated in the petition. It is no body's case that any petition was filed by respondents No. 2 and 3 or any-body else under this provision. The decision of the District Judge is appealable to this Court in view of the provision of section 12 of the Ordinance and decision so arrived is final. The jurisdiction of all civil, revenue Court or other authority is barred under section 21. All these Courts and authorities can not entertain any matter until expressly provided in this Ordinance. However, the argument of the learned counsel for respondent No. 1 was that according to section 20 of General Clauses that an authority which has power to issue notification has power to rescind the same. Before proceeding any-further it is relevant to refer to the provision. The same is reproduced as under:- "Where, by any West Pakistan Act, a power to issue notification, orders rules, scheme, form or bye- laws is conferred 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 of rescind, any notifications, orders, rules, scheme, form, bye-laws so issued."
8. It seems that the respondents No. 2 and 3 were pressing hard for denotification. The matter was examined in the office of respondent No. 1. The Section Officer, who examined the merits and, demerits of the claim of respondents No. 2 and 3 and of the Department concluded as under:- _____ d>-> J* ((Urdu Taxts))
Thereafter the file was placed before respondent No. 1 through concerned Administrator, Auqaf. The respondent No. 1 made the following observation on the file and submitted it to the Minister, Auqaf:- F^-URD^ " #tbs ((Urdu Taxts))
The then Minister passed the following order:- #tbe ((Urdu Taxts))
Now when the order of the Minister is examined in the, light of the provisions of the Ordinance, 1979, then it is crystal clear that Minister has no authority, whatsoever, to issue any such direction. On the other hand, jurisdiction of all Courts and authorities have been specifically barred. These rules/orders or directions or interference by Minister. The said direction is otherwise against the entire scheme of the Ordinance. The Minister does not possess the power of identifying property either under the General Clauses Act or Waqf Ordinance. It is clear from the note of the respondent No. l and Section Officer that it was not in the public interest to exclude it from the management of Waqf. If looked from this angle then observation of the Minister that it is in the public interest to restore the property is without any legal and factual basis.
10. The direction of the Minister is even otherwise against the very scheme of the Waqf Ordinance, 1979 which was promulgated with a view to provide for proper management and administration of Waqf properties in the Province of Punjab as is clear from pre-amble. The public interest does not appear anywhere in the Pre-amble and in section 7, under which properties are taken over. It is the sole discretion of the Chief Administrator, Auqaf to assume administrative control, management and maintenance of Waqf property. The public interest is that it should be maintained, for the same purpose for which the property was dedicated, by the Auqaf Department rather than making over to persons who do not have a right to possess such property. This way this will amount to convert Waqf property in the private property.
11. The learned counsel for respondent No. 1 frankly and candidly conceded that he does not possess any such authority or jurisdiction and in support of his contention referred to the judgment of Hon'ble Supreme Court in the case of Ahmad Khan Vs. Member (Consolidation) Board of Revenue etc. (P.L.D. 1990 S.C. 1070). It was a case under West Pakistan, Consolidation of Holdings Ordinance. The concerned Minister enquired in the confirmed scheme and directed the reopening of the case. This order was assailed through a Constitutional petition in this Court. The writ was issued and order of the Minister was set aside. The respondent assailed this Order through CPSLA but the Leave was refused. The relevant portion of the judgment of Hon'ble Supreme Court reads as under:- "Under the Law Minister for Consolidation has no jurisdiction or authority to pass any order in respect of consolidation scheme already confirmed under the law against which all objections and judicial proceedings in the nature of appeals and revisions had already been exhausted and disposed of. The impugned order of Minister for Consolidation was, therefore, wholly without jurisdiction and void ab initio. Law is firmly settled that if the basic order is without lawful authority, whole series of such orders together with superstructure of rights and obligations built upon them fall to the ground. Reference may be made to judgments reported as Yousaf Ali v. Muhammad Aslam Zia Secretary to Government of the Punjab Local Government and Rural Development Department and 2 others PLD 1982 Lahore 606. In this view of the matter merely because in pursuance to the impugned void order the village has been re-consolidated, is no ground to maintain the said order."
In addition to the aforesaid reasons in the impugned judgment of the High Court we are also of the view that another argument advanced before the High Court from the respondents' side, was also valid; namely, that "Minister for Consolidation had no authority to interfere with the confirmed consolidation scheme as under the West Pakistan Consolidation of Holdings Ordinance, 1960, the authorities who could act were the Collector, Commissioner and Board of Revenue." The statutory functionaries alone could have interfered with the orders challenged before them. The Minister not being such a functionary had no jurisdiction to deal with the matter in any manner whatsoever. His action thus for this additional ground was also void ab initio and could not at all be act upon.
Learned counsel for the petitioner faced with the foretasted formidable position, argued that in addition to the order passed by the Minister in this case the Board of Revenue had also passed independent order; therefore, the said order would cure the defects pointed out above. We do not agree with him. The order of the Minister as already been explained, was Coram non judice. It could not at all be cured by any functionary even if he was acting under the law in purported exercise of his own jurisdiction. Because obviously this exercise also got tainted by the original orders passed by the Minister.
In this case there is an additional feature namely, that the learned Member, Board of Revenue did not act according to his own independent judgment and this is further shown in the order of the Member of the Board of Revenue relied upon by the learned counsel. It is clearly stated therein that "under the orders of the Minister of Consolidation Punjab, the Member (Consolidation) Board of Revenue Punjab has been pleased to allow reconsolidation in village Kotli Bhagu, Tehsil Daska, District Sialkot". The foregoing supposition is strengthened by further direction issued by the Board of Revenue namely, that the District Authorities were required "to comply with the above orders and submit a report for information of the Minister for Consolidation, Punjab". This order was passed in 1987. As shown above, not only this but subsequent order passed in this case for implementation of the Order of Board of Revenue, whether by saying so or otherwise, would all be treated as void and nullity."
12. Now coming to the argument of the learned counsel for respondent No. 1 that his client is competent to identify the property in View of the provisions of section 20 of General Clauses Act.
This argument, in my humble view, is absolutely misconceived. Once the notification issued, possession taken over and control of the property assumed the respondent No. 1 is left with no jurisdiction or authority to denitrify the property or in other words release the property from the control of the Department. The powers given to the authorities under section 20 of the General Clauses Act (in case of Department of or Federation section 21 of the General Clauses Act) is available till the time some decisive steps are taken. This power given to the authorities under section 20 in legal Parlance is known as 'locus poenitentiase' (right to repent). The scope of the same was considered in various judgments of Superior Courts of Pakistan starting with case of Shahbaz Vs. Crown (P.L.D. 1955) Lahore 65. The same view was approved by the Federal Court and decision is reported as Shahbaz Vs. Crown (P.L.D 1956 F.C. 46), Dr. Mahboob Rabbani Vs. Govt, of West Pakistan (P.L.D. 1963 (W) Lah. 53, It. Col. Bhattacharya v. The State (P.L.D. 1964 S.C. 503), Pakistan v. Muhammad Hiwayat Ullah (P.L.D 1969 S.C. 407), Collector of Central Excise v. Aziz ud Din Industries (P.L.D 1970 S.C 439), M/S.M. Afzal & Sons and 2 others v. Federal Govemment of Pakistan (P.L.D. 1978 Lah. 468), Sattar Muhammad V. Chief Conservator of Forests and others (P.L.D 1980 S.C.
(AJ&K) 46) and Syed Muneeb Nazir Shah v. Azad Kashmir Govt, and another (P.L.D 1985 AJ&K 17).
The notification under section 7 of Ordinance, 1979 is end product.
13. The properties are not taken over by the Auqaf Ordinance, 1979 at random but before the taken over the area is measured, property surveyed and its status determined. It is thereafter that matter is placed before the competent authority to decide whether to take over the property or not. This is followed by taking over of physical possession of the property and from that point Auqaf Department starts managing the property. This creates interest in favor of Muslim Umma as the property is thereafter managed by the Auqaf Department for the benefit of all Muslims. The taking over of the possession is definitely a decisive step after which the respondent No. 1 loses 'locus Penitential' to denounce his earlier decision and take back the notification.
14. The legislature in its wisdom has not given any power to Chie Administrator, Auqaf, to release a property, therefore, cannot be permitted t frustrate the object of the Ordinance, 1979 through back- door. It is settle principle of interpretation of statutes that the intent of the legislature must b given effect to and respected. Reference in this behalf can be made to the judgment of Hon'ble Suprer. e-Court in the case of Pakistan Burmah Shell Ltd. V Mrs. Nasreen Irshad and others (1989 S.C.M.R 1892). .
The suit is that this Constitutional petition is allowed, direction/order of th Minister dated 19.4.90 is declared illegal and without jurisdiction. No order as t costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.