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Civil Appeal No. 24/1 of 1958, decided on 16th April 1965.

S. 3 Words "the Provincial Government may by general or special order published in the Official Gazette . . . take over and assume the administration . . . . . of charitable institutions " Power rests with Provincial Government to declare property waqf -Authentication of such order of Government‑Can be made only by one of officers mentioned in r. 7 (2) of N.‑W. F. P. Conduct of Business Rules‑Order of Government under S. 3, N.‑W. F. P. Charitable Institutions Act, 1949 signed by Administrator, Charitable Institutions ‑ Not proper ‑ N.‑W. F. P. Gazette Notification No. 1087‑C‑1 dated 17‑4‑53‑Declared ultra vires‑Government of India Act, 1935, S. 59‑N.‑W. F. P. Charitable Institutions Rules, 1950, Sch. (2), Sr. No. 14‑N.‑W. F. P. Conduct of Business Rules, r. 7(2).

Muhammad Hashem Khan v. Provincial Government, N.‑W. F. P. P L D 1950 Pesh. 13 ref.

Dr. Abdur Rahim for Appellant.

Sher Bahadur Khan, A. A.‑G. for Respondent No. 1.

Dates of hearing: 15th February and 5th April 1965.

This first appeal arises out of the order of the Administrator, Charitable Institutions Department, Peshawar, dated the 28th of January 1958, rejecting the petition of Ghaus Muhammad Shah son of Murid Jafar Shah of D. I. Khan City, for the cancellation of Notification No. 1087/C. 1 dated the 17th of April 1953. The suit property situate in D. I. Khan, was taken over and declared as waqf by the order of the Government, dated the 17th of April 1953, vide Notification No. 1087‑C. 1, published in N.‑W. F. P. Gazette of the same date. This notification is signed by Pir Muhammad Khan Administrator, Charitable Institutions, for the Secretary Government, N.‑W. F. P. Home Department and Department of Charitable Institutions N.‑W. F. P.

2. The appellant alleged that the property was not a public waqf, and therefore, could not be brought under the control of the Department under section 3 of the N.‑W. F. P. Charitable Institutions Act, VIII of 1949.

3. The following issues were framed:‑

(1) Is the petitioner in possession as owner from the time of his ancestors of the kotli known as kotli Hazrat Imam Hussain at D. I. Khan from 1823

(2) Is the petitioner in enjoyment of Rs. 18 P.A. as muafi from before the British Rule and the amount is being spent by the petitioner on the kotli of Imam Hussain

(3) Is the petitioner according to Muhammadan Law solely entitled to the management of the kotli and no other person or institution has got a right to assume its management as kotli is partly set aside for offering Namaz Janaza and offering Majlis‑e‑Imam Hussain

(4) Has the petitioner constructed two brick‑kilns and has reserved an area of 90 kanals for it

(5) Has the petitioner constructed kothas for the tenants or the well in an area of 3 kanals

(6) Has the petitioner constructed a sarai in an area of 10 kanals out of the kotli where people break their fasts on Ashoora Ceremony

(7) Has the petitioner constructed kothas out of the area of the kotli in an area of 25 kanals for the residents of the kothas

(8) is the petitioner in enjoyment of only 39 kanals of agricultural land out of the total area of the kotli and the income thereof is spent by the petitioner on the kotli and its mujawars, etc.

(9) Is the kotli a private waqf and with the exception of the Syeds of D. I. Khan no other person or institution has got a right to assume its management and control

(10) Is the Notification in respect of kotli and the property attached thereto under section 3 of the N.‑W. F. P. Charitable Institutions Act ineffective against the proprietary rights of the petitioner

(11) Is the kotli and the property attached thereto a Charitable Institution meant for a charitable purpose as defined in section 2 of subsections (b) and (c) of the N.‑W. F. P. Charitable Institutions Act, VIII of 1949 and Gazette Notification by the Provincial Government under section 3 of the N.‑W. F. P. Charitable Institutions Act VIII of 1949 has been rightly published and the Department of Charitable Institutions, N: W. F. P. is competent to assume its control and management

After recording the evidence, the learned Administrator, Charitable Institutions Department, Peshawar, found issue No. 1 against the plaintiff. On issue No. 2, he found that the muafi was not in the name of the appellant as an owner, but he was enjoying it as a Manager. Issue No. 3 was also found against the appellant. He (Administrator) left issues 4 to 7 undetermined, as they had no bearing on the case. On issue No. 8, he found that the area under cultivation as stated by the Patwari, was 69 kanals 11 marlas. On issue No. 9, he found that the suit property was not a private Waqf, and after coming into force of Act VIII of 1949, the Government stepped into the shoes of the mutawalli and took its management under section 3 of the Act. On issue No. 10, he found that the Notification was not

was relied upon by the appellant's learned counsel. Second para. at page 19 of this ruling, which is material, is as under:‑

"The so‑called order of the Provincial Government offends against the Government of India Act in another way also, inasmuch as all orders of the Provincial Government are to be expressed under section 59 of the Government of India Act in the name and on behalf of the Governor, and are to be issued duly authenticated by the Secretary concerned. The present order is neither the order of the Governor, nor has it been expressed in his name and issued on his behalf by a competent Secretary. Thus, the order is no order and the Provincial Government does not come into the picture at all. The case is to be governed by section 9, C. P. C. which enables the Civil Courts to take congnizance of all disputes of civil nature."

The notification relied upon by the respondent, is not proper, as it was not issued on behalf of the Governor by a competent Secretary.

6. The learned Additional Advocate‑General made reference to section 6 of the Charitable Institutions Act, 1949, which is as follows:

"(1) The Provincial Government shall create a separate Department for the administration, control, management and maintenance of all the charitable institutions and the properties.

(2) For the purpose of carrying into effect the provisions of this Act, the Provincial Government shall by notification in the official Gazette, appoint an Administrator who will be the head of Department created under the last preceding subsection."

Section 20 of the Act confers power upon the Provincial Government to frame rules for carrying out the purpose of the Act, and under this section, rules were framed by Notification No. 977‑78/C dated 6‑7‑50. Rule 2(b) of these rules is to the following effect:

"Charitable purpose includes relief of the poor and orphan as amended by Act II of 1951, education, worship, medical relief, shrine or the advancement of any other object of charitable, religious or pious nature or of general public utility but not a private Wakf."

7. A reference was made to Part 5 of these rules dealing with the delegation of powers which lays down that subject to the provisions of this Act and ‑the rules made thereunder, the powers specified in column 2 of Schedule (in Appendix) shall be exercised by the officers mentioned against each in column 3 to the extent referred to in column 4 thereof. The powers delegated are set forth in clause (2) of the Schedule and at Serial No. 14 of the Schedule is given the nature of powers of delegation, which is as under:‑

Relying upon these rules, the learned Additional Advocate General submitted that the "power to decide" where certain property should be taken in charge of the Department of the Charitable Institutions for its control and management and operate from its income and expenditure, is delegated to the Administrator as shown in column 3 of the Schedule, which is as under:‑

Column 4 of the Schedule deals with the extent of the powers delegated, which is in the following terms:‑

The learned Additional Advocate‑General concluded that the Administrator is the Head of the Department and the rules have made him the sole judge to decide whether certain properties are waqf under section 3 and to be taken over, and thus he was the proper authority to authenticate the orders issued under the name of the Provincial Government. Rule 7(2) of the Rules of Business framed under section 59 of the Government of India Act, 1935, for the conduct of business of the Provincial Government of the N.‑W. F. P., is in the following terms:

"The following officers may authenticate by signature all orders and other instruments made and executed in the name of the Governor:‑

(i) Secretary.

(ii) Joint Secretary.

(iii) Deputy Secretary.

(iv) Under Secretary, or

(v) Assistant Secretary, in the Department concerned: Provided that in certain cases an officer may be so authorised for a particular occasion by order of the Governor."

From the above‑mentioned rules, it is obvious that the order of the Provincial Government can be authenticated by Secretary, Joint, Deputy, Under or Assistant Secretary in the Department concerned. Mr. Pir Muhammad Khan Administrator, Auqaf, was neither Secretary, nor Joint Secretary nor Deputy nor Assistant Secretary, and therefore, under the Rules of Business, he was not authorised as the person who could authenticate by signature all orders etc. made and executed in the name of the Governor. The word "Administrator", as an authority to authenticate such orders is missing from these rules. The learned Additional Advocate‑General was unable to produce any rule showing that the Administrator of Charitable Institutions Department had the authority to authenticate the orders of the Government. In view of these facts, I am of the opinion that Notification No. 1087/C. 1 dated the 17th of April 1953 relating to the taking over and declaring the property in suit to be waqf, signed by Mr. Pir Muhammad Khan for the Secretary, Government, N.W.F.P. Home Department and Department of Charitable Institutions, N.‑W. F. P. is ultra vires, because it is neither the order of the Governor nor has it been expressed in his name and issued on his behalf by a competent Secretary. I, therefore, accept this appeal, set aside the judgment of the Administrator, Charitable Institutions, Peshawar, dated 28‑1‑58 and cancel Notification No. 1087/C‑1 dated 17‑4‑53. The respondents to bear the appellant's costs throughout.

K. B. A. Appeal accepted.

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