Ch. NAVEED MANZOOR vs CHIEF ADMINISTRATOR, AUQAF and others
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which upheld the dismissal of a challenge to a notification issued under the Punjab Waqf Properties Ordinance 1979. The Chief Administrator of Auqaf had assumed control of certain properties, including a mosque and graveyard, via a notification. The petitioner challenged this action before the District Judge, but the petition was dismissed as time-barred, a decision subsequently affirmed by the High Court. Before the Supreme Court, the petitioner contended that the notification was legally ineffective because the mandatory service and affixation requirements stipulated in the second proviso to section 7(1) of the Ordinance were not fulfilled, meaning the limitation period had not commenced. The Supreme Court observed that the lower courts failed to consider the legal effect of this proviso, which was added by the Punjab Waqf Properties (Amendment) Ordinance 1984. Consequently, the Court granted leave to appeal to determine the validity of the proviso under Article 270-A of the Constitution and its impact on the limitation period for challenging such notifications.
- Does the failure to serve and affix a notification under section 7 of the Punjab Waqf Properties Ordinance 1979 prevent the limitation period for challenging that notification from commencing?
- Is the second proviso to section 7(1) of the Punjab Waqf Properties Ordinance 1979, as added by the Punjab Waqf Properties (Amendment) Ordinance 1984, a valid existing law under Article 270-A of the Constitution of Pakistan 1973?
- Section 7, Punjab Waqf Properties Ordinance 1979
- Section 7(1), Punjab Waqf Properties Ordinance 1979
- Section 11, Punjab Waqf Properties Ordinance 1979
- Article 270-A, Constitution of Pakistan 1973
- Punjab Waqf Properties (Amendment) Ordinance 1984
ORDER
' KHALIL-UR-RAHMAN RAMDAY, J. --Through anotification, dated 22-7-1998 issued under section 7 of the Punjab Waqf Properties Ordinance No,IV of 1979, the Chief Administrator of Auqaf took over and assumed the administration, control, management and maintenance of an area of 1 Kanal 11 Marlas containing graveyard. Darbar Data Noor Shah Wali, a Mosque and one room situated in the said piece of land falling in Wazirabad. The petitioner before us questioned the said notification before the learned District Judge of Gujranwala through a petition under section 11 of the said Ordinance which petition got entrusted to a learned Addl. District Judge at Gujranwala who dismissed the same through his judgment, dated 18-11-1999 essentially on the ground that such a petition could have been , filed only within 30 days of the publication of the notification in question whereas the petition in the present case had been filed on 11-1-1999 which was well beyond the said period of time prescribed by the said section 11. The petitioner impugned the said judgment before the Lahore High Court, through F.A.O. No,10 of 2000 which appeal was also dismissed through a judgment, dated 29-2-2000.
2. Hence this petition.
3. The learned counsel for the petitioner submits that in terms of the second proviso to subsection
(1) of section 7 of the said Ordinance, No, IV of 1979 the notification in question was required to be served upon the management or Mutawali and the same was further required to be affixed on some prominent part of the property which was sought to be taken over and that since the same had not been done therefore the notification in question had not come into operation in the eye of law and thus the period prescribed for questioning the said notification had not started running and both the learned Courts i.e, the learned Addl. District Judge and the Hon'ble High Court were thus in gross error in not having considered the effect of the said provisions contained in the said second proviso.
4. This Proviso was added to subsection (1) of section 7 of the said Ordinance through the Punjab Waqf Properties(Amendment) Ordinance No,XIII of 1984 and both the learned Courts appeared not to have considered the effect of the said provisions of law. The question whether the said proviso was a valid existing law in terms of Article 270-A of the Constitution and if so then what was the effect of the said second proviso on the issue of limitation, requires consideration.
5. This petition is, therefore, allowed and to considerthe above question and others.