P L D 1983 Lahore 677 (PLP)

Syed Ali Hassan filed writ petition (W. P. No. 1534/69) under Article 98 (2) of the Constitution of the Islamic Republic of Pakistan, 1962, in which he challenged the vires of Notification No. 1 (631) Auqaf, 68, dated 9-7-1969, issued by the Auqaf Department. By means of the said notification, land measuring 373 Kanals 2 Marlas situate in the revenue estate of Mauza Mal, Tehsil and District, Lahore had been taken over by the Chief Administrator of Auqaf, Lahore. Syed Ali Hassan claimed to be the owner of the said land on the basis of gift made in his favour by Mst. Saeeda Hassan Jan who in turn had been permanently settled and as such was competent to dispose it of as owner under section 15 of the Displaced Persons (Land Settlement) Act, 1958. In the year 1960, the then Chief Settlement Commissioner, Lahore, directed the Additional Deputy Commissioner to report whether the aforesaid property was waqf property. The Additional Deputy Commissioner held enquiry and reported that the property was not waqf in India and the allottee, as such, was entitled to the land as owner. This report was accepted by the Chief Settlement Commissioner. The Writ Petition was admitted to regular hearing on 10-10-1969, by a Division Bench of this Court. Ultimately, it was dismissed on 17-3-1979, with the following observation " . . . . that the petitioners have a more adequate and beneficial remedy open to them before the District Judge. The petitioners in all these petitions have raised question of fact which cannot be decided without thorough inquiry, particularly when prima facie the documents placed by the petitioners themselves on record prove the-properties to be waqf properties . . . " The petitioner then filed a Civil Petition for Special Leave to Appeal in the Supreme Court. That was dismissed on 12-5-1979. Thereafter, Syed Ali Hassan moved the District Judge, Lahore, by means of petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961, read with section 11 of the Punjab Waqf Properties Ordinance, 1979. He sought declaration that the property in dispute was not waqf. It had been allotted to the predecessor-in-interest of Syed Ali Hassan, as such he was the lawful owner and that Notification No. 1 (733) Auqaf/69, dated 11-7-1969, published in the Gazette on 16-8-1969 was illegal. The aforesaid petition was accompanied by an application "for condonation of delay, if any, in filing the titled petition". The District Judge dismissed the petition under section 7 on the ground that it was barred by time. He did not go into merits of the case. Syed Ali Hassan has now filed this appeal from the order of the District Judge. I have heard learned counsel for the parties at full length. The first point urged by the learned counsel for the appellant was that it was necessary for the Auqaf Department to have served the appellant; personally regarding the notification. In the absence of any such service on the appellant, the question of limitation did not arise. In support of this learned counsel relied on the case of Muhammad lshaq v. Chief Administrator of Auqaf Punjab (P L D 1977 S C 639) wherein it has been observed as under : "Apart from the decided cases, 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. 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." On the authority of the aforesaid case, learned counsel argued that the notice served on the appellant through tenant would not be deemed to be a proper service. He submitted that when a particular mode had been prescribed, the process must be issued in pursuance of that. It was next submitted that by invoking the Constitutional jurisdiction of this Court, the appellant did not lose his right to move the District Judge because action of the Chief Administrator, Auqaf, was open to judicial review. Hence, the appellant must not be made to suffer on account of his having filed a Constitution petition. Reliance was placed on Muhammad Sadiq and 15 others v. The Chief Administrator of Auqaf, West Pakistan, Lahore and another (P L D 1972 Lah. 780). Learned counsel then referred to certain dates. Those were 25-9-1969 when notice was issued by Auqaf Department ; the writ petition was filed on 6-10-1969 ; it was dismissed on 17-3-1979 ; Thereafter the petition for Special Leave to Appeal was dismissed on 12-5-1979. The District Judge was moved on 19-5-1979 that is to say after the dismissal of the petition for Special Leave to Appeal. Learned counsel also referred the case of Punjab Province v. Nisar Ahmad (P L D 1960 (W. P.) Lah. 801) in order to prove that a litigant is not to suffer for the mistake of his legal advisor. Learned counsel, therefore, wanted me to exclude the period spent by the appellant in pursuing the Writ Petition as as well as the Civil Petition for Special Leave to Appeal in the Supreme Court. Mr. Sher Zaman who appeared on behalf of the respondent contended that no notice was necessary before taking over of the property under section 6 of the West Pakistan Waqf Properties Ordinance, 1961. In support of this he relied on Sayyed Muhammad Ali Shah Bokharl v. The Chief Administrator of Auqaf Punjab, Lahore and 3 others (1972 S C M R 297). Learned counsel further submitted that section 5 of the Limitation Act did not apply to the proceedings before the District Judge. The petition before the District Judge was an adequate remedy. Therefore, if the appellant invoked the Constitution jurisdiction, it was at his own risk and he must now suffer for that. Learned counsel vehemently contended that the Supreme Court has finally decided that condonation of delay cannot be granted in such cases. In support of these he placed reliance on Elahi Bakhsh v. Chief Administrator Waqf Property (1982 S C M R 160) ; Muhammad Sharif v. Chief Administrator of Auqaf, Punjab, Lahore (1974SCMR158) and Mrs. Ismat Tariq v. Sh. Shaukat Ali (1971 S C M R 713). Last of all, learned counsel argued that the appellant was not entitled to the benefit of section 14 of the Limitation - Act. He relied on the case of G. M. Mufti v. Government of Azad J & K (PLD1975AzadJ&K24). Section 7 of the West Pakistan Waqf Properties Ordinance, 1961 deals with petition to District Court against notification. District Court is to be moved within 30 days of the publication of the notification. Appeal against the order of the District Court lies within sixty days to the High Court. As is clear from the preamble of the Ordinance, it was promulgated to consolidate and amend the law relating to management of waqf properties in the Province of West Pakistan. It is, therefore, a special piece of Legislation. The Ordinance deals with the appointment of Chief Administrator of Auqaf ; his powers ; the remedy provided under this Ordinance to an aggrieved person and so on and so forth. It is thus obvious that the party aggrieved has an adequate and even efficacious remedy. In his jurisdiction a detailed enquiry can be held and question of fact can be thrashed out whereas this is not possible in the Constitution jurisdiction. So, in spite of this if the appellant chose to invoke the Constitution jurisdiction, he cannot successfully take up the plea that the time spent in prosecuting the Constitution Petition and the Civil Petition for Special Leave to appeal be condoned and he be permitted to avail of the plea that he was not given proper legal advice. Ignorance of law has never been an excuse to overcome a legal or factual error. If, at all, any concession is to be given to the appellant then that could be upto the stage when his Constitution petition was dismissed. Having known the fate of his petition and being aware of the observation made by the Division Bench, referred to before, if still he chose to pursue the matter further that was at his own cost and risk. I don't think even before the District Judge the appellant was serious in contesting the petition. Had he been so, then the application for condonation of delay would not have been styled as "condonation of delay if any". It was not even mentioned under which provision of law it had been filed. The contents of paragraph 2 of the application are "That delay, if any, in filing the titled petition has resulted on account of the fact that impugned notification came to the knowledge of petitioner on ???.through outside and sources when he immediately the same in the Lahore High Court in Writ Petition No. (?) of 1969 which was admitted for regular hearing and status quo till its decision was also granted. The writ petition was finally disposed of on. -???? The petitioner then filed an appeal before the Supreme Court which has been dismissed on from 1969 to 1979 the writ petition was kept pending by the Lahore High Court and it is a fundamental principle of law that no one should suffer on account of an act of the Courts of law." ? Paragraph 4 is also relevant and is to the following effect : "That the petitioner bona fide challenged the impugned notification before the Lahore High Court and the Supreme Court. He has been vigilant throughout and the instant petition is being filed immediately after the decision by the Supreme Court. The intervening few days having been consumed in engaging a counsel, preparing of the petition and its institution in this Honourable Court." This application was supported by an affidavit of the appellant. This is dated 17-5-1979. It was attested by the Oath Commissioner on 19-5-1979. Even in the affidavit the blanks have not been filled in." Yet the most important fact to b: noted in this sequence is that the application for condonation of delay is neither signed by the appellant no by his counsel. As is evident from some of. the paragraphs reproduced above, the important dates have been left blank. I am surprised how such an important fact escaped notice of the learned District Judge. Such type of petition does not entitle the appellant to a discretionary relief for condonation of delay. On the other hand, it shows lack of interest, carelessness and negligence. On this ground alone, this appeal was liable to be dismissed. Nevertheless, I gave full opportunity to the learned counsel for the appellant to argue. I have also gone through the case-law cited b him. Decisions referred to above are distinguishable. Moreover, the conduct of the appellant before the District Court was such that his petition was right dismissed by the District Judge. For the foregoing reasons I am of the view that the District Judge rightly dismissed the petition on the ground of limitation. This appeal is accordingly dismissed with costs. M. A. K.????????? Petition dismissed.