P L D 1969 Supreme Court 223 (PLP)

(On appeal from the judgment and order of the High Court Petition Pakistan, Lahore, dated the 4th March 1965, in Writ No. 1893 of 1964). (a) Muhammadan Law‑

Wakf‑Dedication to God‑Property dedicated should be that of wakif else wakf not valid‑Even sub sequent acquisition of right in property would not validate dedication unless proprietor ratifies. Under the Muslim Law, both Hanafi and Shia schools, it is a condition that the property dedicated should be the wakif's, otherwise wakf is not valid. Ameer Ali in his Muhammadan Law, Vol. I, p. 134 states that " the subject‑matter of the dedication must be the property of the wakif at the time the wakf is made, that is, he must be in a position to exercise dominion over it". To make a valid dedication it is essential that the person dedicating must be vested with the full proprietary right at the time of dedication, for, even the subsequent acquisition of such a right will not validate it unless the proprietor also ratifies. Where, therefore, a mosque had been put up unautho risedly on a plot of land by an Anjuman before that piece of land had been transferred to the Anjuman, it was held that it could not be contended that the mosque already constructed could not be demolished or put to any other use. Ameer Ali on Muhammadan Law, Vol. I, p. 134 ref. (b) Constitution of Pakistan (1962), Art. 98‑Right considered sufficient for maintaining proceeding in writ jurisdiction‑Need not necessarily be a right in strict juristic sense‑Enough if petitioner can show that he had a personal interest in performance of a legal duty which had not been performed in manner required by law. The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. A corporation entrusted with the task of formulating town improvement schemes had appropriated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently how ever, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition. Montgomery Flour and General Mills Ltd. v. Director, Food Purchases P L D 1967 Lah. 914; Ikram Bus Service v. Board of Revenue P L D 1963 S C 564; Halsbury's Laws of England, Vol. 25, Third Edn., p. 389; Islington Market Bill (1835) 3 Cl. & Fin. 513 and Ex parte: Sidebotham In re: Sidebotham L R (1880) 14 Ch. D 458 ref. (c) Natural justice, Principles of

Could be excluded by express words in enactment itself. University of Dacca v. Zakir Ahmad P L D 1965 S C 90 ref. (d) Punjab Town Improvement Act (IV of 1922), Ss. 43 &c 49‑. Section 43 permits alteration of scheme without republication even after it has been sanctioned by Government if such alteration only marginal or periperal in nature‑Reallocation, of a portion of area reserved in scheme for a market, for erection of a mosque‑Modification, held, neither of radical nature nor within mischief of S. 43: The Lahore Improvement Trust formulated a composite scheme consisting of a Development Scheme" and a "Housing Accommodation Scheme". This scheme was sanctioned by the Government and the' sanction was duly notified' in the official Gazette. A plot of land was earmarked in the sanctioned scheme for the construction of a market. Subsequently however the Trust made a little alteration and a portion out of the plot reserv ed for the proposed market was reallocated for the construction of a mosque. It was urged before the Supreme Court that after a scheme had been sanctioned by the Government the Trust was not at liberty to alter or modify the scheme at its own sweet will without consulting the people of the locality concerned or those who are vitally affected by the alteration or modification. On the question therefore (i) whether the Trust is powerless to alter the scheme, once it had been sanctioned by the Govern ment, without following the procedure laid down for the framing of a scheme initially and (ii) even if section 43 of the Punjab Town Improvement Act, 1922 gives power to the Trust to alter, or modify a scheme: whether the modification made in the case required at least the previous approval of the Government Held, the Punjab Town Improvement Act, is a complete code in itself. Whenever republication was considered necessary, the statute itself has made specific provisions for the same as in sub section (2) of section 41 and section 43 (b). If, as contended by the appellant, whenever a Scheme is modified, even to an Insigni ficant extent, it must be republished then the above provisions would have been wholly unnecessary. The very fact that by clause (b) of subsection (2) of section 41 it is left to the dis cretion of the Government to indicate as to whether the modifi cation is not of such importance as to require republication shows that it was not the intention of the framers of the Town Improvement Act to insist upon republication of a scheme even in the case of unimportant or minor modifications. Section 43 of the Act is, therefore to be read in the light of section 41 and reading it in this context it seems that the intention of the statute was that an alteration of a Scheme made after its sanction by the Government was not to be published except in the cases specified in the said section. The power of alteration or modi fication, if regulated by the statute itself, must prevail over the general principle enunciated in section 20 of the General Clauses Act. It was accepted in the case of the University of Dacca v. Zakir Ahmad P L D 1965 S C 90 that even the principles of natural justice could be excluded by express words in the enactment itself. There seems, therefore, no scope for the argument that under the scheme of the Town Improvement Act no alteration could be made in a sanctioned scheme except by following the procedure prescribed for framing a scheme. An alteration or modification of a sanctioned scheme is permissible in the manner prescribed by section 43 of the Act which seems to indicate that only where the net cost of executing a scheme is estimated to be increased by more than Rs. 50;000 or 20% of such cost by the proposed alteration or the alteration involves the acquisition of further land the pro cedure laid down must be followed otherwise the Improvement Trust has the power to make within these limits other alterations in the scheme. Any major alteration of the scheme will neces sarily involve an increase in the net cost of execution thereof above the figures specified in clause (a) of section 43 or involve the acquisition of more land. In the first case the previous sanction of the Government would, it appears, be sufficient with out any further republication of the scheme but a republication would' be essential only where further land has to be acquired. In addition to this if the modification is such that it completely alters the nature of the scheme or so radically changes it as to render the sanctioned scheme materially different, then notwith standing section 43 the modification must be republished upon general principles, for, otherwise it would amount to a fraud upon the statute itself. The argument that section 49 of the Town Improvement Act read with section 76 of the Municipal Adminis tration Ordinance, 1960, debarred the Trust from making any change, at all in a sanctioned scheme, appears to be untenable. Section 49 only makes the provisions of section 76 of the Municipal Administration Ordinance applicable mutatis mutandis to localities in respect of which a scheme under the Town Improvement Act is in force. Section 76 of the Municipal Administration Ordinance contemplates that the Municipal Committee would have the power of preventing contraventions of the provisions of the scheme or alterations in the site by persons other' than the Municipality itself. The effect of making this section applicable to localities in respect of which a scheme under the Town Improvement Act is in force is to give to the Improvement Trust a similar power of seeking that provisions of the scheme are not contravened by others. 7 his does not create any clog upon the powers of the Improvement Trust itself. The Punjab Town Improvement Act, therefore, does not oblige the Improvement Trust to follow the same procedure for the alteration of a sanctioned scheme as it would have to follow for the framing of a scheme if the modification or alteration is not of a radical nature or such as to render the scheme itself impracticable or unfit for the purpose for which it was originally design ed. In this view of the matter, it seems therefore, that the Trust was not wrong in taking the view that it could make the alteration or modification impugned, namely, the change of the user of part of the site without the previous sanction of the Government. The modification was neither of a radical nature nor fell within the mischief of section 43 of the Town Improve ment Act. The Province of West Pakistan v. Ch. Nazir Hussain P L D 1960 S C 130 ref: Muhammad Ismail Bhatti, Senior Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Senior Attorney for Respon dent No. 1.