1994 PLP 2267 (MLD)

The petitioners have filed this Constitutional petition for a direction that the respondents cannot auction or lease out agricultural land and the alleged income from cash box and offerings/Nazrana Jats of Ziarat Panja Shah-e-Mardan Qila Marote, Tehsil Fort Abbas, District Bahawalnagar and they cannot interfere in the arrangement or religious education/Taleem-ul-Quran being carried out by the petitioners in the mosque and four rooms constructed by the petitioners for board and lodging of the Tulba (students).

2. The Auqaf Department in reply produced notification dated the 8th of March, 1989, whereby the Chief Administrator of Auqaf in exercise of powers conferred vide section 7 of the Punjab Waqf Properties Ordinance, 1979, had taken over and assumed the administration and control, management and maintenance of building containing a piece of stone known as "PUNJAH SHAH-E-MARDAN" alongwith mosque Old Sarai Ground at Killa Marote, Tehsil Fort Abbas, District Bahawalnagar as per schedule given below: Schedule. (1) A building containing a piece of stone known as Punjab Shab-e-Mardan alongwith Mosque and old Sarai and Mela Ground covering an area of 85 Acres situated in Block No.24/10, Khasra Nos.l to 25, 25 Acres, Block No.24/11 Khasra Nos.l to 25, 25 Acres an No.24/7 Khasra Nos.17 to 25, 25 Acres and Block No.24/6 Khasra Nos.16 to 25, 10 Acres, Killa Marote (Choulistan), Tehsil Fort Abbas' District Bahawalnagar. (2) Cash box placed at the stone building and other offerings and subscriptions etc. (3) Standing trees. (4) Credit balance, if any. 3, This notification, however, was published late on the 15th of November, 1993. Now if the petitioners claim any interest in the Auqaf property in respect of the notification which has been issued under section 7 of the Punjab Waqf Properties Ordinance, 1979, they can file the petition to the District Court under section 11 of the Ordinance within 30 days seeking the requisite declaration. I do not agree with the contentions of the learned counsel for the petitioners that this Court can grant relief to the petitioners in this Constitutional petition and further that the impugned notification shall operate prospectively and not retroactively and, therefore, all the acts of the department subsequent to the 8th of March, 1989 are void.

4. The first argument of the learned counsel is met by this Court in Writ Petition No.369 of 1977 cited as 1990 CLC 1803 wherein it was held that the remedy lay under section 11 of the Ordinance and the exercise of jurisdiction under Article 199 of the Constitution would not only frustrate the intention of the legislature but would also deprive the other party from the remedy of I appeal which they otherwise possess under the Ordinance.

5. As regards second objection, suffice to say that the act of taking over the management, control etc. of the place in question was apparently taken for the good of public-at-large and, therefore, would operate retroactively. It was ruled by the Supreme Court in Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 that notification which purports to impair existing or imposes new liabilities or obligations cannot operate retrospectively in the absence of legal sanction and the notification which confers benefit, whoever, can operate retrospectively. It was also laid down by the Supreme Court in Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180 that depending upon the circumstances of each case, mere fact that a publication in the Gazette was delayed would not invalidate the notification. In the instant case the notification was made on the 8th of Mach, 1989 and the acts and omissions of the Auqaf Department thereafter in respect to the property in question shall stand protected if otherwise were not violative of any provisions of the Ordinance. The notification was published late on the 15th of November, 1993 and that provides terminus a quo of imitation to the petitioners to bring the action under section 11 of the Ordinance. In the circumstances the Constitutional petition stands dismissed. H.B.T./A-667/L Petition dismissed.