MUHAMMAD ISHAQ Versus CHIEF ADMINISTRATOR OF AUQAF,PUNJAB

ORDER

1. MUHAMMAD YAQUB ALI. C. J .--This appeal, by special leave, is directed against the judgment of a Division Bench of the High Court of Lahore, dated 30-9-1973, whereby the learned Judges, in concurrence with the Single Judge, have held that the application filed by Muhammad Ishaq, appellant herein, under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 (hereinafter referred to as the Ordinance), was barred by time and as such rightly dismissed by the District Judge, Sheikhupura.

2. Land measuring 79 kanals and 18 mamas, situated in District Sheikhupura, was by Notification No. 1 (743) Auqaf/69 dated 2nd September 1969, declared by the Chief Administrator of Auqaf, Punjab, as Waqf. Aggrieved by the declaration, the appellant, on 15-11-1969, filed an application under section 7 of the Ordinance in the Court of the District Judge, Sheikhupura, for a declaration that the land was his private property and not Waqf. The application was dismissed by the District Judge on 17-7-1970 holding it to be barred by time.

3. It is contended by the learned counsel for the appellant that the decision given by the learned Judges in the High Court is erroneous as the application under section 7 of the Ordinance was well within time.

4. The relevant portion of section 7 reads :

5. "7. Petitions to District Court against Notification.-(i) Any person claiming any interest in any Waqf property in respect of which notification has been issued under the last preceding section may, within thirty days of the publication of such notification, file a petition in the District Court within whose jurisdiction a part of the Waqf property is situated for declaration-

(a) that the property is not Waqf ;property."

6. As the notification was published on 30-9-1969 and the petition as filed on 15-11-1969, i.e., outside the stipulated period of 30 days prescribed in section of the Ordinance, the Chief Administrator of Auqaf took the objection that the application was barred by time. In reply it was maintained that the appellant was unaware of the Notification, and he first came to know of it when an officer of the Auqaf Department auctioned the standing crops on 25-10-1969. In paragraph 6 of the petition it was specifically pleaded :

7. "6. That the petitioner has checked up the West Pakistan Gazette but the said Notification does not appear to have been published so far. In pursuance of this order of the respondent auction of standing crops was done by the respondent's representatives on 25-10-1969 and suction lease far the laud was done on 6-11-1969 :bough physical possession of the said land is still with the petitioner through his tenants. Due to this action of the respondent the petitioner got a cause of action despite Notification not being so far published in the West Pakistan Gazette. Hence the petition is within limitation.'

8. As mentioned earlier, the District Judge dismissed the petition as barred by time and further held following in unreported judgment of this court in Civil Appeal No. 26 of 1969 (Elahi Bakhsh v. Chief Administrator, Aurqaf nerd others), that section a of the Limitation Act did not apply in the case. The prayer for condonation of delay by the appellant was, in this view refused.

9. The appellant, thereupon, filed an appeal before the High Court against the dismissal of his petition by the District Judge contending inter alia mere printing of the Notification in the Gazette did not amount to publication or notice to the petitioner. The appeal was dismissed by a learned Single Judge maintaining the view adopted by the District Judge. A further appeal before the Letters Patent Bench met the same fate though it was urged that notwithstanding the date of printing. the Gazatte did not leave the Press Branch upon 15th November 1969. The publication as distinct from printing of the Gazette was, therefore, on a date subsequent to 15-11-1969, the date on which the Gazette was printed. The learned Judges ruled out the contention on the ground that it was raised before them for the first time. The appeal was, in this view, dismissed on 20-9-1973.

10. Alongwith the petition for leave to appeal, the appellant has filed in this Court a certificate from the Manager, Works II, Government Press, Punjab, Lahore, dated 27-8-1974, Ref. No. 3988-BD 1 to the effect that the Gazette Notification was received in the Book Depot duly printed on 23-10-1969. On the basis of thus certificate leave to appeal was granted to examine the question as to whether the Courts below were correct in taking the view that the appellant's petition under section 7 of the Ordinance dated 15-11-1969 was barred by time.

11. In support of the appeal Ch. Muhammad Anwar Butter, learned counsel for the appellant, contended that the mere printing of the Notification in the Gazette is not sufficient to constitute 'publication' as envisaged by section 7 of the Ordinance and that publication takes effect only when the Notification is made available to the general public. In support of the contention he referred us to the following authorities :

(1) Bal Krishna Anand Hirlikar v. Emperor A ii R 1931 Born. 132.

(2) Province of East Pakistan v. Hassan Askary P L D 19711 S C 821 and

(3) Straker v. Director ref Public Prosecution (1963) 1 Q B 926.

12. In Bal Krishna Anand Hirlikar v. Emperor, and association, previously lawful was, by virtue of a Government Notification in the official Gazette in terms of the relevant statute, declared unlawful. One of the questions before the Court was whether mere insertion of the Notification in the Gazette was sufficient to constitute the organization illegal and its members subject to prosecution. Answering the question, Beaumont, C. J., observed :

13. "The word used in section 16 is 'notification' and not 'insertion'. 'Notification' is defined in Webster's Dictionary as 'Act of notifying ; act of making known an intimation or notice ; asp. act of giving official notice or information by words, by writing or by other means??? and in order to prove that an association has been declared unlawful under the Criminal Law Amendment Act of 1908, the Government must not only insert the declaration in the official Gazette, but must publish the Gazette in the manner usually adopted for publishing such Gazette, and allow a reasonable opportunity to people concerned to see the Gazette . . . ."

14. In Province of East Pakistan v. Hassan Askary, on the question regarding a notification in the official Gazette under section 3(1) of Bast Bengal State Acquisition and Tenancy Act, this Court has held :

15. " . . . . . that a notification can be said to be published only when some means is adopted to communicate it to the public or to the party concerned in order to publish it. It Is, therefore, not possible to hold in the present case that the impugned notifications were published on the date on which they were inserted in the official Gazette "

16. In Straker v. Director of Public Prosecution, the appellant was charged under the Obsene Publications Act. An offence under the Act is committed when "obscene articles are published." Lord Parker, C. l., dealing with the specific question whether a photographic negative is capable of being published observed

17. " . . . . . It is. I think, difficult. and indeed impossible, to say that it is an article which is capable of publication, because it is not shown, played or projected in the sense there conveyed, which must be a showing, playing or projection to some members of the public, not merely a projection in the darkroom . . . ."

18. 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 publications. 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.

19. It is clear, therefore, that the period of limitation in this case started running from the 23rd October 1969, and not on 30-9-1969. The petition under section 7 of the Ordinance filed by the appellant on 15-11-1969 was thus well within time.

20. The appeal is. accordingly, allowed and the case remanded to the District Judge. Lahore, for trial on merits.' Costs to abide the final event in the case.

21. S. A. H. ?????????? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? ??????????? Appeal allowed.