' ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to consider the following questions of law:---
(i) Whether a Letters Patent Appeal lay from the order of a learned Single Judge of the High Court who accepted the writ petition filed by the petitioners herein and set aside the order of the Chief Administrator of Auqaf dated 28-4-1973 whereby he had dismissed the application made by the petitioners for implementation of certain rights such as performance of Rasoomat at the Dargah of Hazrat Data Ganj Bakhsh Sahib in terms of the judgment delivered by the Court in Civil Appeals Nos.127 to 167 of 1969. In dismissing the application the Chief Administrator relied on the provisions of the Amending Ordinance XVI of 1971 which was apparently enacted to overcome the declaration given in the aforementioned judgment of the Court in favour of the Mujawaran of the Dargah of Hazart Data Ganj Bakhsh Sahib?
' Whether a Provincial Legislature can enact a law which has the effect of nullifying a judgment.
Decree or order passed by this Court?
(iii) Whether Amending Ordinance XVI of 1971 is not a valid law?
(iv) Whether the Amending Ordinance XVI of 1971 stands. Validated by Article 281 of the Interim Constitution of 1972 and cannot be challenged in a Court of law within the dictum of the Court in Zia-ur-Rehman's case reported in PLD 1973 SC 49? And
(v) Whether the provisions of the Amending Ordinance No,XVI of 1971 are retrospective and if not what is the effect of the amendments made by the Ordinance on the facts of the present case?"
2. The facts are that the property attached to the Darbar of Hazrat Data Ganj Bakhsh, was taken over by the Chief Administrator, Auqaf, under the West Pakistan Waqf Properties Ordinance, 1959 (hereinafter referred to as the Ordinance). The Mujawaran of the Darbar filed proceedings under section 7 of the Ordinance, in the Court of District Judge, Lahore, for a declaration that certain properties taken over by the Chief Administrator of Auqaf were not Waqf properties. After decision by the District Judge, both the parties filed appeals in the West Pakistan High Court which were disposed of on 3-3-1966. Ultimately, the case came up before this Court and the same was disposed of by means of judgment dated 26-4-1971 (PLD 1971 SC 376).
3. The following reliefs were granted to the Mujawaran:--
(i) That the Mujawaran acquired the right by immemorial user of performing the 'Rasoomat' and other religious ceremonies connected with the shrine provided that the performance of such functions does not amount to misuse the Waqf properties.
(ii) That under the Waqf Properties Ordinance the Chief Administrator of Auqaf had no right to deprive them of this privilege of performing such 'Rasoomat" and other religious ceremonies although he had the discretion to contribute or not to contribute towards the expenses thereof and the right to recover the Lame.
(iii) That the taking over of the amount of Rs,12,561.50 in cash found in a Potla or bag was illegal, as it was a part of pre-Notification offerings which have already been appropriated by the Mujawaran. This amount should be returned to the Mujawaran.
(iv) That if the ornaments are in the shape of utensils such as Atar Daan, Gulab Passh, etc., or articles such as Gilafs, Pabor Yosh Canopies, etc., they should be treated as Waqf Properties belonging to the shrine and not as the personal properties of the Mujawaran but if there be any item of purely personal use presented to the shrine by way of offerings then they should be returned to the Mujawaran.
4. According to the appellants they made an application on 17-5-1971 to the Chief Administrator, Auqaf for compliance with the directions given by this Court. On 19-7-1971, the Governor of Punjab promulgated Ordinance XVI of 1971 whereby certain amendments were made in the West Pakistan Waqf Properties Ordinance, 1959.
5. The appellants filed a writ petition in the Lahore High Court praying for a direction to the respondents to perform their legal obligations in complying with the judgment of this Court. A learned Single Judge on 21-2-1973 directed the Chief Administrator of Auqaf, to dispose of the application moved by the appellants after hearing them. The Chief Administrator decided the application against the appellants. The writ petition was finally disposed of by the learned Judge on 24-5-1974. The order dated 28-4-1973 passed by the Chief Administrator of Auqaf was set aside and the case was remitted to him for fresh decision on the application of the appellants. This order of the learned Judge was challenged in Letters Patent Appeal before a Division Bench of the High Court on 5-7-1974. The Division Bench accepted the appeal filed by the respondents and set aside the judgment dated 24-5-1974 passed by the learned Single Judge. The appellants being aggrieved have challenged the aforesaid order in this appeal.
6. Learned counsel for the appellants has raised the following contentions, namely, (i) the Intra- Court appeal was barred by time, (ii) the amendment in law has not affected rights of the appellants: (iii) amendment would not apply retrospectively; and (iv) the Intra-Court Appeal was not competent.
7. As regards tire first contention with regard to the period of limitation, it was contended by the learned counsel that the learned Single Judge decided the appeal on 24-5-1974 but the Intra- Court Appeal was filed on 26-6-1974. The period of limitation was 20 days under Article 151 of the Limitation Act and as such the appeal before the Division Bench was not competent.
8. The learned counsel for the respondents submitted that the appellants cannot take this objection at this stage. The question of limitation was not raised before the Division Bench. It was not even the grounds of the appellants in the petition before the High Court. This objection was taken for the first time. The appellants, therefore, are debarred to raise the question of limitation. In support of such contention, he referred to Abdul Karim v. Bashir Ahmed 1988 CLC 1400, wherein it has been observed that "plea of limitation neither raised before trial Court in his written statement nor assailed in appeal could not be taken up at the stage of appeal against final decision".
9. In the present case, the question of limitation was not raised before the Division Bench of the High Court or in this Court. He submitted that the respondents had obtained a copy of the order of the learned Single Judge and produced the same at the time of presentation of appeal. It was not necessary to file a copy of the judgment alongwith the memo. Of appeal. The copy had been obtained by the then learned Advocate-General Mr. M. B. Zaman who was the senior counsel and it could not be expected of him not to show the copy to the official concerned at the time of presentation of appeal. The learned counsel for the respondents submitted that the period of limitation was 30 days under rule 4 of Chapter 1-A of Volume V of the Rules and Orders of the High Court and Article 151 of the Limitation Act is not applicable. The aforesaid rule of the High Court reads as follows:-- ' "Every appeal to the High Court under clause 10 of the Letters Patent from a Judge sitting singly on the appellate side of the High Court, shall be presented within 30 days from the date of the judgment appealed from, unless the admitting Bench, in its discretion for good cause shown, grants further time.
' The period of limitation for the presentation of an appeal against the judgment of a Single Judge exercising original jurisdiction is 20 days from the date of the judgment (Article 151 of the Schedule to the Indian Limitation Act, 1908)."
10. The learned Single Judge had disposed of the petition of the appellants under Article 201 of the Interim Constitution in its extraordinary original jurisdiction. While exercising original jurisdiction, the period of limitation would be 20 days as prescribed by Art.151 of the Limitation Act and not 30 days.
The High Court rule applies to those cases where the appeal is filed against the appellate judgment of a Single Judge of that Court, but where the High Court exercises its original jurisdiction then the period of limitation would be 20 days. Accordingly an appeal which was filed beyond the period of 20 days was barred by time under section 3 of the Limitation Act.
11. The learned counsel for the appellants in support of his contention has referred to Muhammad Afzal v. Muhammad Sadiq 1988 SCMR 179 wherein it has been observed that "once time has begun to run it does not stop. Time for filing Letters Patent Appeal having already expired neither time spent in pursing review application nor time spent in obtaining copy of the order passed by Single Judge could be deducted from the period of 20 days".
12. This Court has decided the question of limitation in Muhammad Ishaq v. Shah Muhammad 1985 SCMR 799 wherein it was observed that "it would be necessary for appellate or revisional forum, where Limitation Act, is applicable to examine under section 3 of the Limitation Act whether the proceedings instituted before itself are within limitation. But it would not be under any legal obligation like the one visualised by section 3 of the Limitation Act to do so if the plea of limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum. Thus if a question of limitation is raised before the High Court in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court' to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limitation. But if the argument is that the High Court did not examine the question of limitation relatable to the filing of a suit/case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because section 3 of Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum, when exercising its power of review in appellate or other jurisdiction. The same would apply to the discretionary writ jurisdiction". In the same judgment, it was observed that "it is no doubt the duty of the forum/Court wherein a matter is instituted to examine the question of limitation, but same cannot be said about the higher forum as that would also depend upon the attitude of the party which wanted the question of limitation vis-a-vis the lower forum, to be agitated at the higher forum. If it fails to agitate it before the higher forum, it would not then be essential on its own part, for the next higher forum to examine the question suo motu".
' The plea of limitation was neither raised nor examined by the High Court. For the first time it was agitated in this Court.
' The facts need inquiry and we are, therefore, not inclined to accept this plea on this technical ground. Additional, the petitioner has no case on merits.
13. The contention of the learned counsel that the appeal before the Division Bench was not competent has no force. The learned counsel referred to section 3 of the Law Reforms Ordinance, 1972. By means of Law Reforms Ordinance, 1972, an appeal under the provisions of Letters Patent was barred by the provisions of section 3. Section 3 was substituted by the Amending Act with retrospective effect from 14-4-1972. Section 3 reads as follows:- "3. Appeal to High Court in certain cases.---(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (2) of Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, not being an order made under sub-paragraph (i) of paragraph (b) of that clause: ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 201 arises out of any proceedings in which the law applicable provided for at least one appeal to any Court, Tribunal or authority against the original order.
(3) No appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispute of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908 (V of 1908), which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
14. Under clause (2) of section 3 an appeal shall lie to a Bench of two or more Judges against an order made by a Single Judge in exercise of its jurisdiction under clause (2) of Article 201 of the Interim Constitution. There is a rider clause than an appeal is not competent if any proceedings in which the law applicable provided for at least one appeal. To understand the proposition, we may refer to the provisions of the West Pakistan Waqf Properties Ordinance, 1959. Action in the present case was taken under section 6 of the aforesaid Ordinance and the Chief Administrator Auqaf issued the notification and took over the administration of the Waqf of Hazrat Data Ganj Bakhsh.
This action was challenged by the appellants under section 7 of the Ordinance in the Court of District Judge. Then the matter was taken up before the High Court under section 8 of the Ordinance and finally the matter was settled by this Court and the reliefs as mentioned above were granted to the appellants. The grievance of the appellants is that in spite of the passing of the above order, the respondents did not permit them to perform the Rasoomat.
15. The appellants then filed a writ petition in the High Court under Article 201 of the Interim Constitution. The following order was made by a learned Single Judge of the High Court on 19-9- 1971:--- ' "Be that as it may, the petitioners were within their right to make an application for implementation of the Supreme Court judgment in Ghulam Rasul v. Chief Administrator of Auqaf PLD 1971 SC 376. The directions of the Supreme Court were clear and it was a requirement of law for the respondent, as declared by the Supreme Court, at least to pass a speaking order on the application of the petitioners which required nothing else but the implementation of the Supreme Court judgment. The application should have been formally disposed of when it was made. There was no need to keep it pending till the promulgation of the amending Ordinance. Even after the amendment was brought about the application already submitted by the petitioners could be treated as one under subsection (2) of section 6. No such order was even then passed. It was not at all necessary for the petitioners to have moved a fresh application under the amending Ordinance. I, therefore, direct that the aforementioned application shall be disposed of in accordance with law after hearing the petitioners. It may be clarified that the latest position with regard to the details of the Rasoomat adopted by the petitioners can be ascertained from the list filed in this Court, namely, Annex. P/R-2."
' Ultimately the petition of the appellants was allowed with the following reliefs:--- ' "The result of the above discussion on all the questions raised is that this petition is accepted. The order dated 28-4-1973 of the Chief Administrator of Auqaf is set aside as illegal, without lawful authority and of no legal effect. The case is remitted to him for fresh decision on the application of the petitioner (which shall be deemed to be pending before him), after affording due opportunity of hearing to them. The petitioners shall be permitted to give the particulars qua the immovable property with respect to their grievance of alleged illegal ejectment. He is further directed to comply with the decision of the Supreme Court in this case reported as Haji Ghulam Rasul v. Chief Administrator Auqaf PLD 1971 SC 376, in accordance with law as explained and discussed in this judgment. It is also directed that there being no justification for withholding the payment of Rs,12,561.8, the same as agreed to by the learned Advocate-General, shall be paid forthwith to the Mujawaran. There shall be no order as to costs.
' This order of the High Court was challenged before a Division Bench and the appeal was accepted,
16. There is no provision of an appeal/revision against the order of Chief Administrator refusing to entertain the request of the appellants. As such the order would be deemed to have been passed under section 6(2) of the Ordinance. As such an order passed by the High Court under Article 201 of the Interim Constitution was appealable before the Division Bench of the High Court.
17. Section 6 of West Pakistan Waqf Properties Ordinance, 1961, was substituted by the West Pakistan Waqf Properties (Punjab) Ordinance XVI of 1971. After the substitution, the new section reads as follows:-- "6.---(1) Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act, 1863, or any other 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, 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.
(2) No person shall perform services or ceremonies (Rasoomat) referred to in subsection (1) except with the prior permission of the Chief Administrator and in accordance with such.Directions as may be given by him."
18. In Explanation to section 6, the word 'Rasoomat' was inserted. According to subsection (2) no person shall perform 'Rasoomat' without the permission of the Chief Administrator. Subsection (2) is not controlled by subsection (1) of section 6. The two are independent provisions. In the case in hand, an action under section 6(1) had already been taken by a notification which was issued by the Chief Administrator and it was upheld by all the Courts.
19. The learned counsel for the appellants submitted that no notification had been issued under subsection (2) of section 6 of the Ordinance and unless notification is issued, the respondents could not prevent the appellants from performing the 'Rasoomat'. This contention has no force. No notification was required. If any person wants to perform some religious ceremonies, he has to make an application to the Chief Administrator. Any order passed by the Chief Administrator under subsection (2) of section 6 is not challengeable either under section 7 or 8 of the Ordinance.
20. In Fakhruddin v. Hasinuddin Qureshi PLD 1980 Lahore 778, it has been held that an Intra-Court Appeal could lie if law applicable to proceeding allowed for review or revision but in no case appeal could be brought if law applicable to proceeding provided for an appeal."
21. In Muhammad Haroon v. District Food Controller 1980 SCMR 720, it has been observed that "an appeal was competent to Deputy Director, Food, but an appeal before the High Court was barred".
22. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344, it has been observed that "a plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court in a Constitution petition, if such petition arises out of any proceeding in which the law applicable provided for at least one appeal against the original order.
The reference is clearly to the proceedings taken under any statute which prescribes a hierarchy of officers or authorities for the carrying into effect the purposes of such statute including the enforcement of rights, if any created thereunder".
23. We may also refer to Mamrez Khan v. Muhammad Hussain 1986 CLC 2387 in which "it has been observed that an order passed in a case arising out of any proceeding in which law applicable provided remedies by way of appeal etc., the Intra-Court appeal is not competent". In view of the above facts, the Division Bench had the jurisdiction to hear the appeal.
24. The learned counsel next contended that the amendment made in the Ordinance has not changed the legal position. This connection is also devoid of force. The learned Division Bench made a comparative study of the different provisions of the Ordinance and the amendments made therein. Specific provisions have been made to nullify the judgment of this Court. It has not been disputed that the Legislature is competent to enact Jaw nullifying the judgment of the Court.
In Mamukanjan Cotton Factory v. The Punjab Province PLD 1975 SC 50 has held as under:-- ' "The counsel appearing in support of the petitions, frankly conceded, that he did not find it possible to question the vires of the validating Ordinance on the grounds canvassed in the High Court. With the permission of the Supreme Court, he however, attacked the vires of the Ordinance and the resultant action of the Provincial Government on a fresh ground. His argument in a nutshell was that the validating Ordinance purports to enable the Provincial Government to retain and claim, what according to the judgment of the High Court, the Government could not have, at the material time, levied and collected. These judgments are rendered by the High Court in exercise of its jurisdiction conferred by the Constitution itself. The validating Ordinance on the other and, is sun-Constitutional Legislation, which according to counsel cannot undo or destroy, what he described as the 'end product' of the Constitutional jurisdiction.
' The argument is without substance and one which if accepted could indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as .a result of the judgment of a superior Court in exercise of its Constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also 'the end product' of Constitutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs, namely, the Executive, the Legislature and the Judiciary, each being the master in its own assigned filed under the Constitution.".
25. The last contention of the learned counsel for the appellants is that the amendment was not retrospective in effect. The appellants have certain rights, therefore, the amendment would apply prospectively. This argument has no force. The appellants had not started performing the `Rasoomar before the law was amended. According to section 6(2) without the permission of the Chief Administrator nobody could perform any religious ceremony. The amending Ordinance had made provisions for the enforcement of such religious ceremonies. The question of retrospective or prospective application of the amending Ordinance does not arise. The rights conferred upon the appellants by the judgment of the Court had been taken away by the Legislature. The appellants cannot on the basis of such judgment claim such a right. The appellants had to move the Chief Administrator under section 6(2) for the purpose of such rights and unless such permission is granted, they could not perform any religious ceremony.
26. For the reasons enumerated above, this appeal merits dismissal and the same is hereby dismissed leaving the parties to bear their own costs.