P L D 1967 Lahore 709 (PLP)

4. The Secretary to the Government of West Pakistan came to the conclusion that the contention of the Majlis‑Intizamia that they were in a majority in the Ghulam Muhammad Abad Colony was not correct and that the relevant data collected in respect of Moballah Mosques constructed in the Colony revealed that 18 Mohallah Mosques, including 7 unauthorised Mohallah Mosques were in possession of Brelvies and only 3 including 2 unauthorised Mohallah Mosques, were in possession of Deobandies in the Colony. It was apparent to him that the majority of the population in the Colony belonged to the Brelvi School of thought. He repelled the claim of the Majlis‑Intizamia that they were in possession of the site earlier than its formal delivery of possession and that a temporary structure bad already been raised over it.

5. A notice was issued to the Majlis by the Urban Re habilitation Officer, Lyallpur, on the 12th of November 1962, to show-cause why the lease of the site should not be cancelled from its name for breach of the relevant terms and conditions of the allotment. Its explanation submitted in reply was not found to be satisfactory, and the Majlis was informed on the 18th of December 1962, that it should get a plan sanctioned before raising a construction. The construction was, being without sanction, unauthorised. The Secretary also found that there were no traces of a well having been sunk in the plot, and no proof as to whom the bricks, stored at the plot, intimating the direction of the 'Kibla', belonged. He also held that as proper approval of the Government to the allotment of the Jamia Mosque site in favour of the Majlis‑Intizamia was not obtained by the District Allotment Committee, as required by Government letter No. 6300‑URD‑58/9612, dated the 22nd of October 1958, the allotment of the site to the Majlis was not validly made by the District Allotment Committee. As the Majlis had also not followed the terms and conditions of allotment and agreement, executed by them, and had raised an unauthorised structure over the plot, without getting a proper plan approved within the prescribed period, he cancelled the allotment of the site from the name of the Majlis‑Intizamia, but he did not even find Anjuman Markaz‑i‑Ahnaf Ghausia (Registered) entitled to the allotment of the plot, as some of the members of the Anjuman‑i‑Ahnaf Ghausia were not residents of the Colony, and thus did not represent the inhabitants of the locality.

6. On a full consideration of the facts, he came to the conclusion that the allotment of the site to a particular sect would promote unhealthy sectarian feelings and would create bitterness and ill‑feelings among the general community, which might result in a violent clash. He referred to the pendency of some criminal litigation which had resulted from a dispute on the same site. He, therefore, thought that the best solution was to entrust the construction and maintenance of the Jamia Mosque to a Board comprising of non‑official members drawn from all shades of religious opinion and commanding influence in the locality. He directed that the Bard should be a regis tered body presided over by a nominee of the Deputy Commis sioner preferably the Ilaqa Magistrate, and the function and duties of the Board should be drawn up with the approval of the Deputy Commissioner. He further observed that the Mosque should be open to all sects and be named after the locality having universal religious appeal and utility for all Muslims as a place of worship.

7. The above order has been challenged by Anjuman Markaz‑i -Ahnaf Ghausia (Registered), by Writ Petition No. 1425 of 1963, under Article 98 of the Constitution of Islamic Republic of Pakistan, praying that a declaration be made that the order of the Secretary respondent No. 1 and those of his subordinates are without lawful authority and a direction be issued that the disputed site be placed at the disposal of the Anjuman for construction of a Mosque for use for worship by the Muslim Community irrespective of any sectarian consideration. The Majiis‑i‑Intizamia has also filed Writ Petition No. 1026 of 1963, under Article 98 of the Constitution of Islamic Republic of Pakistan, praying that the order of the Secretary setting aside the allotment in their favour be declared to be without lawful authority and of no legal effect. These two petitions will be disposed of by this order.

8. It would be convenient here to refer to the completion and nature of District Allotment Committee set up for the purpose of allotting land for residential or other purposes in Satellite Towns. The District Allotment Committee is presided over by the Deputy Commissioner and its membership is also open to non‑officials. A Division Bench of this Court had called for a report in Writ Petition No. 837 of 1963 entitled Mian Umar Din v. Mst. Umran Bibi and 2 others. The report shows that the Satellite Town Schemes are sponsored by the Urban Rehabilitation Department. Them is no statute governing the operation of the Satellite Town Schemes. The basic policy about the setting up of Satellite Towns was laid down by the Refugee Tax Committee in 1951. The Satellite Town Schemes whose total estimated cost does not exceed Rs. 50 lacs are sanctioned by the Provincial Government and the rest by the Central Government. Prior to 1962 all schemes were sanctioned by the Central Government irrespective of the cost involved. The Provincial Government in Urban Rehabilitation Department is responsible for preparation and implementation of these schemes. All matters connected with the disposal of sites are regulated by the executive instructions issued from time to time. The relations between allottees and Government are regulated by contract. A separate set of terms and conditions of allotment have been provided for each category of plots.

9. By an executive measure provision has also been made for appeals against the orders of allotment passed by the District Allotment Committee and of cancellation passed by the Secretary. Where an order of cancellation of plot is passed by the Secretary of the District Allotment Committee who under the executive instructions is authorised to do so an appeal in the first instance lies to the Deputy Commissioner and a second appeal lies to the Additional Commissioner. Where an original order is passed by the District Allotment Committee an appeal lies to the Additional Commissioner and further appeal lies to Government (Secretary to Government West Pakistan Communi cations and Works Department). Previously the appellate authority for such appeals used to be the Member, Board of Revenue Incharge of the Urban Rehabilitation Department which has now been merged in the West Pakistan Housing and Settlement Agency w. e. f. the I st of August 1953. The said Agency is functioning under the administrative control of the Communications and Works Department.

10. The first question that arises in regard to these writ petitions is of their competence. There is no statute which governs the working of the Satellite Town Schemes, therefore, it cannot be said that it is a question of the legal rights of the petitioners on the basis of which they can invoke the provision of Article 98 of the Constitution for compelling the respondent Government or its functionaries to perform their legal obligations. The whole scheme of the Satellite Towns has been spun within an administrative frame‑work and provisions have been made for appeals with a view to the efficient and better working of these schemes so that the District Allotment Committees do not function in an arbitrary manner. The relationship between the parties are at the most contractual and the remedy sought in this case is not for the performance of some public duty imposed upon the Government or its functionaries under any statute. It is open to serious question whether the grievances made in these writ petitions can be remedied by orders of the nature com templated in paragraphs (a) (i) & (ii) of Article 98 of the Constitution. Where a policy is laid down or directions given for guidance of the officers connected with a department without any statutory backing, no claim of a vested right can arise on account of such directions or rules. This is what was held by the Supreme Court in Estate Ofcer, Government of Pakistan v. Syed Tahir Hussain (P LD 1962 S C 75). We may quote here with respect from page 79 of the report:‑ "The learned Judges described the Karachi Allocation Rules as "statutory rules", but with all respect it seems to us that the assumption is a difficult one to make. The Rules themselves do not refer to any statute under which they are made. We have already said that it is possible that these Rules may have been made with reference to Fundamental Rule 45, which is itself a statutory rule, but it does not follow that rules made under a statutory rule are also statutory rules. It is in our opinion far more reasonable to regard these Rules as having been made for the better direction of the affairs of the Estate Office in Karachi, and to ensure that Government accommodation was distributed equitably and to the best advantage. We consider upon a general appreciation of the content and purpose of the Karachi Allocation Rules that they may best be described as "internal regulations for the guidance" of the Estate Office. The words quoted above are taken from the judgment of the Judicial Committee in the case, Corporation of Calcutta v. Province of Bengal L R 71 I A 31) where their Lordships of the Privy Council observed as follows:‑ "The exact regulations which deal with the terms on which houses occupied by Government officials are provided are not easy to ascertain." We shall have occasion to refer to this decision in greater detail almost immediately, but here we refer to it for the purpose of indicating that similar Rules relating to provision of Govern ment residences for officers made by the Government of undivid ed Bengal were treated by the Privy Council as regulations of an internal or subsidiary kind, in other words, as mere rules of convenience for the better working of the particular depart ment. No claim of a vested right can arise out of such rules."

11. Sh. Muhammad Shafi, the learned counsel for the petitioner in Writ Petition No. 1026 of 1963 referred to the decision of the Supreme Court in Anjuman‑e‑Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another (P L D 1966 S C 639). In this case Anjuman‑e‑Ahmadiya had been sold some State land under the Colonization of Government Lands Act (V of 1912) for the construction of a mosque and while construction was in progress a notice was served on the President of the appellant Anjuman that the Government had decided to cancel the sale of the land to the Anjuman. It was asked to vacate the possession of the land in question. A copy of this order was also endorsed to the Superintendent of Police, Sargodba, for necessary action. The Anjuman sought to challenge this order by filing a writ petition in the High Court. It was dismissed in limine on the ground that the alternative remedy of a suit was available to the Anjuman and it should have resort to the same. Leave to appeal was granted by the Supreme Court to consider whether the remedy by way of a suit was an adequate alternative remedy, as the order complained of appeared to be "one purporting to be made in exercise of public power, and suitable prima facie for scrutiny in the prerogative jurisdiction". The Supreme Court ultimately held that what the appellant really wanted was the performance of a public duty, namely, that the authorities seeking to cancel its grant should proceed in accordance with law, namely the provisions of the Colonization of Government Lands Act, 1912, under which the grant was made. A reference was also made to the Crown Grant Act wherein it is stated that such a grant will have effect notwith standing any statute or law to the contrary. Their Lordships found that if it was a valid grant then it could not be cancelled in the manner in which the authorities had purported to do in that case. The case according to their Lordships was one in which the appellant was complaining of a non‑performance of a public duty and asking for a direction that the authorities concerned should perform their public duty in accordance with law. We, therefore, find that the judgment cited by the learned counsel Sh. Muhammad Shafi is distinguishable from the present case. Here the Government is working in one of its beneficent department under a departmental procedure and under regulations which have no statutory backing and which have been framed for the internal guidance of the functionaries of the State as also for keeping the overall supervision over the officers at the lower rungs. These regulations do not create any vested right for the petitioners and in our opinion these writ petitions are not competent because they have not been filed to enforce a public right or compel the performance of a public duty.

12. So far as the writ petition of Anjuman Markaz‑i‑Ahnaf Ghausia is concerned the main attack on the impugned order of the Secretary to Government West Pakistan, Communications and Works Department (Annexure 'C') is that it is not in conformity with the instructions of the Government contained in Annexure D' (para. 39 of Writ Petition No. 1425 of 1963) with the petition. No allotment of land was ever made in favour of Anjuman. They have, therefore, no legal interest in the land in question and no locus standi in the matter. We may also observe that the administrative instructions contained in Annexure 'D' on the file of Writ Petition No. 1425 of 1963 are not exhaustive. They just serve as guide line for the guidance of District Allotment Committee's but there is an inherent power in the Government to deviate from these instructions if the circumstances of the case so warrant. The Secretary to Government, West Pakistan, Communications and Works Department, has given very cogent reasons for not allotting this plot to either of the two petitioners in these writ petitions and has decided the case in a manner to which no exception can be taken. The Anjuman Markaz‑i‑Ahnaf Ghausia, is, therefore, out of Court for two reasons:‑ (i) that they halve no interest in the land in dispute; and (ii) that the instructions of the Government on which they based their claim are not statutory rules but are of administrative nature and cannot be enforced in exercise of the writ jurisdiction.

13. The learned counsel Sh. Muhammad Shafi, appearing for the petitioner in Writ Petition No. 1026 of 1963 on behalf of Majlis‑lntizamia, urged that the act of District Allotment Committee was final and that the observation of the Secretary to Government, West Pakistan, Communications and Works Department, in his appellate order dated the 30th of July 1963, to effect that the approval of the Government before the registra tion of the deed was necessary is not correct. Memo. No.7709‑UDD‑57/12552 dated 3‑12‑58 was shown to us during the argument which actually modified the previous instructions and stated that the Deputy Commissioner in consultation with the District Allotment Committee would deal with the question of allotment of sites for mosque. The argument of the learned counsel was, therefore, correct only partly, but so far his contention regarding the finality, which according to him attaches to an allotment made by the District Allotment Committee, is concerned, we do not find any force in it. It was in the best interest of the allottees as well as the Govern ment that the Government should have a final say in the matter of the orders of the District Allotment Committees which should be tested in appeal firstly before the Additional Commissioner and then before the Government itself. The Government on the administrative side is within its rights to set up such appellate forums to have effective control over the working of its subordinate agencies. The learned counsel lastly submitted that the provision of appeal was a creation of statute and since the appeals before the Additional Commissioner and the Secretary to Government had been provided by departmental instructions, they had no legal sanctity and the word of the `District Allot ment Committee' was final. We have said enough to repel this contention of the learned counsel. He is further debarred from agitating this matter before us for the reason that the petitioner appeared before the Additional Commissioner and the Secretary to Government, West Pakistan, Communications and Works Department and never raised any objection to their jurisdiction. He is, therefore, bit by the principle laid down by their Lordships of the Supreme Court in the case of Ghulom Mohi‑ud‑Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (P L D 1964 S C 829). In this case the appellant had permitted review petition before the Settlement Commissioner and a revision petition before the Chief Settlement Commissioner to proceed simultaneously. When he appeared before the Settlement Commissioner in response to a notice in the review proceedings he did not disclose to that officer that he bad already filed a second revision petition before the Chief Settlement Commis sioner. The Settlement Commissioner proceeded with the review petition and when an order adverse to the appellant was passed he approached the High Court in writ jurisdiction. The learned single Judge of the High Court refused to issue a writ on the ground that the appellant had suffered the proceedings to the end and never brought to the notice of the Settlement Commissioner that he had gone in revision to the Chief Settlement Commissioner. The order of the learned single Judge was upheld in a Letters Patent Appeal. The Supreme Court on appeal also upheld the order of the High Court and observed as follows on page 839 of the report:‑ "In the present case there can be no doubt that the appellant knew that he had filed a second revision petition before the Chief Settlement Commissioner and that this was a circumstance which prevented the Settlement Commissioner in law from exercising his power of review. Notwithstanding this he not only did not raise any objection to the hearing of the review but actually participated in its hearing on merits. In the writ petition also the appellant did not assert that he was unaware that the filing of the second revision petition debarred the Settlement Commissioner in law from reviewing his previous order. The appellant, therefore, knowing the true legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house transferred to himself he would, we feel certain, have made no grievance on account of that illegality. The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."

14. In view of the above discussion we do not find any force in any of these writ petitions which are dismissed with costs. K. B. A. Petitions dismissed.