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Civil Appeal No. 7 of 1967, decided on 16th April 1969.
(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).
‑---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.
, 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.
, 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.
, 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:
Mahmud Ali Qasuri, Senior Advocate Supreme Court (Zaintd Abedin, Advocate Supreme Court with him) instructed by M. Mah boob Ahmad, Attorney for Appellant.
Muhammad Ismail Bhatti, Senior Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Senior Attorney for Respon dent No. 1.
M. Anwar, Senior Advocate Supreme Court (A. H. Najafi, and Syed Afzal Haider, Advocates Supreme Court with him) instructed by Wajid Hussain, Senior Attorney for Respondent No. 2.
Dates of hearing. : 4th, 10th, 11th, 14th and 17th March 1969.
‑---This appeal by special leave arises out of a judgment of a Division Bench of the High Court of West Pakistan dismissing a Constitutional Petition under Article 98 of the Constitution.
The said petition was filed by the appellant Mian Fazal Din who is the owner of a house constructed on Plot No. 86 E/1 in the Gulberg III Scheme of the Lahore Improvement Trust. He sought thereby to have a resolution of the Lahore Improvement Trust passed on the 31st July 1964, allotting 8 Kanals 1 Marla and 40 ‑square feet of Land out of Plot No. 94‑E/I in the same Scheme to respondent No. 2, declared to have been made without lawful authority and of no legal effect, and to have a direction issued upon the Lahore Improvement Trust (Respondent No. 1 herein) for cancelling a deed of agreement for sale in respect of the said Land executed in favour of the respondent No. 2 on the 7th of August 1964.
According to the appellant, the Plot No. 94‑E/I in Gulberg No. III Scheme, was earmarked in the sanctioned Scheme for the construction of a market for the convenience of the residents of the locality and this was the main con sideration which bad induced him to purchase Plot‑ No. 86 E/I and to build a house thereon at an expense, of about Rs. 6 Lacs. The plot earmarked for the market being practically opposite to his purchased plot was said to be a special attraction for him as he expected to open a branch of his iron and steel business in the said proposed market. Indeed the appellant maintains that but for this special attrac tion he might not have purchased Plot No. 8‑E/I at all. The Lahore Improvement Trust, however, it is complained, not only took no steps to set up the said market although the scheme was otherwise completely executed by 1960‑61 but the appellant to his surprise came to, know that the Scheme had been altered when the respondent No. 2 started con struction on the said plot.
The appellant and some 275 other residents of the Scheme on coming to know of ‑this alteration immediately represented to the Chairman of the Lahore Improvement Trust and the Provincial Government, on the 18th September, 1964 and the 22nd October 1964, respectively, objecting not only to the illegal alteration of the Scheme but also to the setting up of a sectarian institution in a locality where the majority of the residents belonged to a different sect. As no action was taken on these representations, the appellant ultimately on the 14th November 1964, invoked the Constitutional jurisdiction of the High Court.
The High‑ Court came to the conclusion that if the Scheme was still in the execution stage, then it was open to the Improvement Trust to alter the Scheme under section 43 of the Punjab Town Improvement Act, 1922, even after the Scheme had been sanctioned by the Government. The Improvement Trust had, therefore, not acted in excess of its lawful autho rity in changing the use to which a particular plot of Land was first to be put. In this view of the matter other questions raised as to the maintainability of the petition and the locus standi of the appellant were not gone into but the petition was dismissed on the 4th March 1965.
Leave was granted in this case on the 12th October, 1965, as various questions of law concerning the interpretation of the provisions of the Punjab Town Improvement Act, 1922, were involved and there was no decision of this Court on any one of these questions. Leave was also granted to con sider the question of the locus standi of the appellant to maintain the petition under Article 98 of the Constitution which was raised by the respondent No. 2 who had entered caveat to oppose the petition for special leave to appeal.
The respondent No. 2 is a registered society the member ship of which is open, according to its Articles of Association adopted on the 25th April 1964, to "any person, male or female, belonging to Imamia School of Islam and agreeing with the aims and objects of the Anjuman." The control and management of the affairs of the Anjuman is vested in a Majlis‑e‑Amla, consisting of a President, a Vice‑President, a Secretary, a Joint Secretary, a Treasurer and at least 7 others, selected annually from amongst the members of the Anjuman in a meeting of the general body.
The aims and objects of the Association, according to its Mamorandum of Association are inter alia
(i) To provide and manage a Mosque and other ancillary or necessary buildings for religious gatherings and purposes.
(ii) To erect and manage Hujras, Madrassas, Maktabs, Schools and residences for Pesh‑Namaz, teachers etc.
The Anjuman has since also been recognised by the Govern ment of Pakistan as a Public and Charitable Trust for the purposes of Income‑tax Act.
This Anjuman, soon after its formation, on the 1st May 1964, applied to the Lahore Improvement Trust for allotment of a suitable plot of land in this Scheme for the construc tion of a mosque. No particular plot was specified but the Trust, after considering, the application, resolved on the 2nd of June, 1964, to grant to the Anjuman a little over kanals of land out of Plot No. 94‑E‑1 which was reserved under the Scheme for a market and on the 7th August 1964. an agreement for sale of the said land was executed between the Trust and the respondent No. 2. The land was to be sold at Rs. 2;005 per kanal but it was expressly stipulated in the agreement that "the mosque and Madrasa constructed on the plot will not be restricted to any sect."
The constructions work of the mosque and Madrassa, it appears, had been started even before the representation were made and when the High Court, on the 18th November, 1964, restrained the respondents from proceeding any further with the construction, the construction had already teen raised to the plinth level. In these circumstances the respondents now contend that since the land had already been dedicated to the mosque, the structure thereof partially erected and prayers commenced to be regularly held, the application of the appellant was a belated one and on that ground alone it should have been rejected, because, the appellant himself had allowed by passage of time the use of the plot in ques tion as a mosque which cannot now be demolished or put to any other use Learned counsel for the appellant, however, points out that in the facts and circumstances of this case no question of any laches can at all arise, for, the appellant had started objecting to the construction as soon as he came to know of it and that was immediately after constructions were commenced. In any event, no question of a valid dedication could at this stage arise, for, under clause (h) of the agree ment of sale itself no legal interest in the land could have passed to the respondent No. 2 until a formal deed of sale in respect of the land had been executed in its favour by the Trust, This clause is in the following terms
Nothing in these presents contained shall be considered as a sale at law of the piece of land hereby agreed to be sold or any part thereof so as to give to the said intended vendee any legal interest therein until the said sale‑deed shall be executed, but the said vendee shall only have a right to enter upon the said land for the purpose of performing this agreement.
The respondent No. 2, it is urged, could not by putting up an unauthorised and illegal construction on land, in which it had acquired no legal interest, set up a valid dedication.
There is, in our opinion, force in this contention, for, it appears that on the 18th November, 1964, when the High Court had issued the order restraining the respondents from proceeding with any further construction on the land in question, no plan for the construction of any kind of build ing had even been submitted by the respondent No. 2. The plan was submitted only on the 1st July, 1965 and it was not sanctioned till the 16th July 1965. It is difficult, therefore, to appreciate now the constriction was made.
I am not, in the circumstances, in a position to accept that any construction of a mosque could have been commenced before even the sanction of the necessary plan. The agreement for sale executed by the respondent No. 2 itself clearly contemplated that no construction of any kind whatsoever will be put up without first getting a plan approved and sanctioned by the Trust. The respondent No. 2 cannot, therefore, be allowed to defeat the application of the appellant on the basis of its own illegal acts.
As regards the alleged dedication it will be sufficient to point out that under the Muslim Law; both Hanafi and Shiah schools; it is a condition that the property dedicated should be the wakif's, otherwise the Wakf is not valid. Ameer All in his Muhammadan Law, Volume I, p. 134 states that the subject‑matter of 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 dedica tion, for, even the subsequent acquisition of such a right will not validate it unless the proprietor also ratifies. In the present case the respondent No. 2 was not vested with the full ownership rights at the time of the alleged dedication nor is it even averred that the Trust had ratified the dedi cation.
The next objection raised on behalf of the respondents is that the appellant had no such legal right in the matter as would entitle him to object to the sale of the land to the respondent No. 2 or to the erection of a mosque thereon. The mere expectation of a market being built on some future date opposite to his house could not possibly give him a right to insist upon lands in the Scheme being utilized strictly for the purposes originally indicated in the Scheme.
Learned counsel for the appellant, however, contends that the fact that he had been induced to purchase Plot No. 86 E/I by the special attraction of the market proposed to be built op posite to his plot did give him a sufficient right for this purpose as this was not merely an illusory or 'an imaginary right.
In support of this contention learned counsel has also placed strong reliance upon the observations contained in a judgment of the High Court of West Pakistan in the case of Montgomery Flout and General Mills Ltd. v. Director, Food purchases (P L D 1957 Lab. 914) by Kaikaus, J. (as he then was) :‑
"It is true," observed the learned Judge, "that a petitioner must have some right if he applies to the Court for a direction or order under Article 170 (now Article 98 of the Constitution of Pakistan) but he need not have a right in that strict sense of the term which is mentioned above. Whenever an enactment empowers a public. officer to pass orders that benefit tar harm a citizen, the citizen gets a right that in a matter in which he is concerned an order be passed in accordance with law. This too is a right that can be enforced by the Court in the exercise of its jurisdiction under Article 170 of the Constitution of Pakistan. If the officer concerned, passes an order that is not in accordance with law, any person whose interests are affected by the order can maintain a petitioner for a writ or direction under Article 170. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be "affected" even if he loses some benefit or advantage which he would have gained if the order was in accordance with law. A public officer passing an order on an application submitted to him does not grant the applicant a favour. He is only granting the applicant his right in the sense that he has a right to have the matter determined in accordance with law and justice. It will be observed that even a fundamental right may not be a "right" in the strict sense of the term. A right to acquire or hold property, a right to carry on a profession, a right to move about freely, etc. are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurispru dence call "liberties". In a wider sense these too are recognised as rights by jurisprudence and they can form the basis of a writ petition."
This decision was approved by this Court in the case of Ikram Bus Service v: Board of Revenue (P L D 1963 S C 564) where this Court stated that
Even an administrative body such as an R. T. A., is under a legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should deter mine the matter with whose decision it is charged, in accordance with the law.
It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature 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 B 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.
Learned counsel has referred us to Halsbury's Laws of England, Volume 25, Third Edition, p. 389 in order to point out that his client had a real and substantial interest in the setting up of the market, for, an owner of a market is under a duty to provide a place for the holding of a market of a size sufficient for the convenient accommodation of all who are ready to buy and sell in the market. This postulates a corresponding right in the prospective users of the market to insist upon the provision of the requisite accommodation.
This principle was propounded by all the Judges in England in their unanimous opinion on the Islington Alarket Bill (L R (1880) 14 Ch. D 458) referred to them by the House of Lords. They opined that if "after having once appropriated a particular site far the use of the public as a market place, he (the grantee) afterwards employs or permits it or part of it, to be employed for other purposes" he cannot prevent others from selling outside the market, for, he owes a duty towards the members of the public to provide sufficient space for the legitimate purpose of selling within it. This is, because, "an obligation is cast upon him by his acceptance of the grant, to provide convenient accommodation for all who are ready to buy and sell in the public market." Furthermore that a failure on the part of the grantee to discharge this public duty would not only entail a forfeiture of the grant but also give a right of action to any private individual who should have received any special injury thereby.
As against this. learned counsel for the respondent No. 2 his referred us to the decision of the Court of Appeal in England in the case of Ex parte : Sidebotham In re: Sidebotham (L R (1880) 14 Ch. D 458) in support of his contention that for the purposes of such proceedings a person aggrieved "must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something." It cannot, it is said, mean a person "who is disappointed of a benefit which he might have received if some order had been made."
This was a case in which the question which arose was as to whether a bankrupt or any of his creditors was entitled to appeal from an order of a Court refusing to act on a report by the Comptroller in Bankruptcy to the effect that a trustee in bankruptcy had been guilty of misfeasance, neglect or omission causing loss, to the estate, where the Comptroller himself had not preferred any appeal. The ratio of the decision there was that such a report was purely a matter between the Comptroller and the trustee and there was no decision or judgment or finding by the Court upon the report which could possibly have prejudiced any bankrupt or creditor or caused any embarrassment to such a person in any proceedings which he may wish to take against the trustee.
This principle governing an appeal cannot be invoked in the present case, particularly, since the abandonment of a privilege or facility undertaken to be provided by the Improve ment Trust cannot but have prejudicially affected the residents of the locality who had come to live therein not only on the expectation but on the representation contained in the scheme, as sanctioned by the Government, that such a facility would be provided. The deprivation of such a facility would in our opinion, confer a sufficiently valuable right upon the residents of the scheme to enable them to maintain an appli cation for enforcing the Trust to discharge its obligation of executing the Scheme as sanctioned by the Government.
Having thus disposed of the preliminary objections I now come to the merits of the care. Learned counsel for the appellant points out that under the Punjab Town Improvement Act comprehensive provisions have been made providing not only for types of Schemes that may be set up under the Act but also the manner of initiating and executing such Schemes. Thus there are some nine different kinds of schemes provided for in sections 22 to 28. Section 33 pro vides how Schemes are to be initiated. Then section 36 provides that when a Scheme under the Act has been framed a Notice is to be published weekly for three consecutive weeks the official Gazette and in a newspaper or newspapers with a specification of the period within which objections ill be receive. The notice shall also specify the place at rich details of the Scheme including a statement of the land proposed to be acquired and a general map of the locality comprised in the Scheme may be inspected at reasonable hours. Any, person desiring to obtain copies of the above documents may also obtain the same on payment of the prescribed fees. Section 40 enjoins upon the Trust to consider tile objections and representations, if any, received and after hearing all persons on their representatives making any such objection, or representation, who may desire to be heard, the Trust must, if it does not decide to abandon the Scheme, apply to the Provincial Government for sanction of the Scheme with such modifications as the Trust may deem necessary. It is necessary under subsection (2) of this section that every application submitted to the Government should be accompanied by the complete plans and details of the Scheme ; an estimate of the cost of executing it ; a statement of the reasons for modifications, if any, in the Scheme ; a statement of objections; if any, received, the representations, if any, received ; a list of the names of all persons who have objected to the acquisition of their property ; a statement of no reasons given for such objection ; and a statement of the Arrangements made or proposed by the Trust for the rehous ing of person who are likely to be displaced by the execution of the Scheme.
The Provincial Government may then, under section 41, sanction the Scheme with or without modification or may refuse to sanction, or may return the Scheme for reconsideration. If a Scheme is returned for reconsideration then under subsection (2) of the said section, it has to be republished again in accordance with the provisions of section 36 in every case in which the modification affects the boundaries of the locality comprised in the Scheme, or involves the acquisition of any land not previously proposed to be acquired. Apart from this republication is also necessary under this section in every other case where the Government modifies the Scheme unless the Provincial Government itself certifies that in its opinion the modification is not of sufficient importance to require republica tion.
If. the Provincial Government sanctions the Scheme, the sanction has to be duly notified in the official Gazette. Then we come to section 43 of the Act which is in the following terms:‑
"A Scheme under this Act may be altered by the trust at any time between its sanction by the Provincial Government and its execution:
Provided as follows:‑
(a) if any alteration is estimated to, increase the estimated net cost of executing a scheme by more than Rs. 50,000 or twenty per cent. of such cost such alteration shall not be made without the previous sanction of the Provincial Government.
(b) if any alteration involves the acquisition, otherwise than by agreement of any land the acquisition of which has not been sanctioned by the Provincial Government, the procedure prescribed in the foregoing sections of this chapter shall, so far as applicable, be followed as if the alteration were a separate Scheme."
It is argued on behalf of the appellant that if the Act is so particular that in every case where the Government returns the Scheme with a modification, the Scheme must be republished unless the Government certifies that the modification is of such an insignificant nature or of such insufficient importance as not to require republication, then it can hardly be contended that after a Scheme has been sanctioned by the Government the Trust should have full liberty to alter or modify the Scheme, at its own sweet will, without consulting the people of the locality concerned or those who are to be vitally affected by the alteration or modifica tion. It is urged that it would he wholly inconsistent with the Scheme of the statute to concede such a power to the Trust, for, then the Trust could defeat the very object of a Scheme even after it had been sanctioned by the Government. The alteration has, therefore, of necessity, to be made by following the same procedure that has to be followed in framing the Scheme initially, for, the people affected may have a variety of reasons for objecting to the alteration of the Scheme. It would be an astounding proposition if the persons for whose benefit the Scheme N as made were not given an opportunity of expressing their opinion as to the proposed modification of the Scheme, for, such schemes are made for the benefit of the residents of the locality and not for the benefit of the Trust.
Both upon general principles of natural justice as well as the principles contained in section 20 of the General Clauses Act it must, therefore, it is said follow that no modifica tion of a Scheme can be made without either getting a fresh sanction of the Government or inviting objections of the people after republication as required by section 36 of the Act, particu larly, since the impugned action of the Trust in transferring the lands earmarked for the market to respondent No. 2 for Rs. 2,000 per kanal was clearly opposed to the specific instructions of the Government issued for the sale of plots by public auction first on the 3rd March 1951 and then again on the 12th November 1962, and 5th February 1968, respectively. Such an illegal modification of the Scheme has, it is contended, thereby also caused consider able loss to the Trust and increased the net cost of execution of the Scheme very substantially.
On behalf of the Trust, however, it is argued that the Punjab Town Improvement Act is a complete code in itself. It has specifically provided for those cases in which republication of a Scheme is considered necessary. Hence, there is no scope for the application of the principle of section 20 of the General Clauses Act or any other principle, for, all these principles can apply only if no express contrary provision is made in the statute itself. Section 43 of the Act, it is urged, gives the power to the Trust to alter the Scheme even after it has been sanctioned by the Government but before its execution is complete, and it itself provides the two circumstances in which (a) sanction of the Provincial Government must again be taken and (b) the Scheme must be republished. The provision for republica tion is necessary only where additional land is proposed to be acquired and the sanction of the Provincial Government is to be taken only if the net cost of executing the Scheme is increased by more than Rs. 50,000 or 20 % of the total cost. By the alteration sought to be made in the present case, the learned counsel points out, not only is there no increase but in fact there would be a considerable saving in the cost of executing if the market is not constructed.
It is further pointed out that this is not a case of a wholesale alteration or abandonment or even a material modification of a Scheme, for, six kanals of land are still available at the very site, namely; Plot No. 94‑E/I, for the construction of a reasonably spacious market. In any view of the matter, therefore, the appellant has no cause for complaint. If his objection is purely on sectarian grounds to the construction of the mosque in question, then too his objection is not well founded, because, a mosque can never be a sectarian mosque. The agreement of sale also expressly provides that the mosque proposed to be built on the land in dispute will not be meant exclusively for any particular sect.
Learned counsel for the respondent No. 2, however, concedes that if the alteration proposed to be made is not marginal or peripheral then republication may be necessary but he maintains that in the present case there was no such drastic alteration of the Scheme from that originally sanctioned as to attract this principle. Such alterations, according to him, have, it appears, been often made by the Trust. A list of some of such instances is also cited in a supplementary affidavit filed by the said respondent, Learned counsel also contends that since the construction of the mosque had already been commenced and the land already bona fide purchaser for value whose title could defeated even if, assuming though not admitting for the purtjusus of argument, there was some defect in the procedure followed by the Trust in completing the transfer.
He has relied very strongly, for this purpose, on an observa tion contained in a decision of this Court in the case of The Province of West Pakistan v. Ch. Nazir Hussain (P L D 1960 SC 130) where it was held that even the Government was under a duty to comply with the necessary formalities for fulfilling its obligations under a contract. It is, therefore, contended that it is now the duty of the Trust to remove the defect, if any, and to complete the title of the respondent. The Trust is under an obligation to do so and it cannot now avoid its contract.
The objective of the appellant is furthermore characterized as being not only illusory but also vindictive and perverse having been prompted purely by sectarian motives although it is now well settled that a mosque cannot possibly belong to any particular sect or group. The house of God is open to any Muslim who comes to offer his prayer therein.
I have already dealt with the preliminary objections raised by the learned counsel in this behalf. A valid dedication, as already indicated, cannot be made of a property which is not lawfully vested in the dedicator himself. The legal interest in the land could not under the agreement of sale pass to the purchaser until the deed of sale was executed. Till then the vendee had only the right to enter upon the land for the purpose of performing the agreement. The putting up of unauthorised constructions could not also advance the case of the respondent No. 2, for, under the deed of agreement itself the Trust could have re‑entered upon the land and taken possession of the structures on the ground that the unauthorised constructions were put up in breach of the covenants of the agreement.
The main questions for consideration, however, are (i) as to whether, as contended by the appellant, the Trust is powerless to alter the Scheme once it has been sanctioned by the Government without following the procedure laid down for the framing of a Scheme initially and (ii) even if section 43 of the Act gives power to the Trust to alter or modify a Scheme; whether the present modification required at least the previous approval of the Provincial Government.
There is no dispute that the Gulberg Scheme No. III was a composite Scheme being both a Development Scheme' under subsection (3) of section 24 and a Housing Accommodation Scheme' under section 25 of the Town Improvement Act. Such a combination could lawfully be made under section 28 of the said Act. There is also no dispute that notices of the Scheme as required by section 36 of the Act. Were duly punished representations heard and the Scheme submitted to Government for its sanction under section 40 and the Government in exercise of its powers under subsection (1) of section 41 of the Town Improvement Act sanctioned the Scheme on 6th August 1953. This sanction was duly notified under section 42 of the Act in the Punjab Gazette dated the 14th August 1953, and one of the conditions in Appendix "A" of the Notification sanctioning the Scheme was to the following effect:
"4. Use of land.‑The area shall not be used for any purpose even though not involving the erection of building inconsistent with the Scheme."
The original estimate of the cost of execution of the Scheme was a little over one crore of rupees but it transpires that this cost progressively increased to over two crores and 25 lacs by stages while the income estimated to be realized by the Scheme was roughly Rs. 2,55,70,000. In the original Scheme various areas had been earmarked for mosques as well as for markets. Some of these have already been constructed upon and there is no
serious complaint that there is any shortage of facilities in this Scheme,
It is also not disputed by the respondents that where power is given to do a thing in a particular way by a statute, that power includes the power to amend, vary, rescind or alter the act of thing done m the same manner and subject to the same conditions and limitations and furthermore that if such action is likely to affect adversely the personal or property or other rights, privileges or benefits of some one else, then according to the principles of natural justice the persons so affected, must be given a fair opportunity of representing their own cases. But it is contended that this rule is always subject to the intent of the statute itself. Thus if the statute has provided to the contrary, then this general principle will not be available. Even section 20 of the West Pakistan General Clauses Act, it is said, applies if nothing repugnant thereto is provided in the statute concerned
The Town Improvement Act, it is said, is a complete in itself. Whenever republication was considered necessary statute itself has made specific provisions for the same as in subsection (2) of section 41 and section 43(b). If, as by the appellant, whenever a Scheme is modified, an insignificant extent, it must be republished then t provisions would have been wholly unnecessary. The that by clause (b) of subsection (2) of section 41 it is left to discretion of the Government to indicate as to require modification is not of such importance as to require rep shows that it was not the intention of the framers of 1 Improvement Act to insist upon republication of a shows that it was not the case of unimportant or minor modifications. Section 43 of 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.
There appears to me to be considerable force in this contention. The power of alteration or modification, if regulated by the statute itself, must prevail over the general principle enunciated in section 20 of the General Clauses Act. It was accepted by this Court 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 to me, therefore, to be no scope for the argument that under the Scheme of the Town Improvement Act no altera tion 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 procedure 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 necessarily 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. 1n the first case the previous sanction of the Government would, it appears, be sufficient without any further republication of the Scheme but a republication would be essential only where further land has to be acquired.
In addition to this I would like to add that 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 notwithstanding 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 Administration Ordinance, 1960, debarred the Trust from making any change at all in a sanctioned scheme, appears to me 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 Improve ment 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 seeing that provisions of the Scheme are not contravened by others. This does not create any clog upon the powers of the Improvement Trust itself.
For these reasons I am of the opinion that the Town Improve ment Act does not oblige the Improvement Trust to follow the same procedure for the alteration of a sanction Scheme as it would have to follow for the framing of a Scheme if the modifica tion 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 designed.
This brings me to the next question, namely; as to whether the alteration or modification proposed to be made in the present case was such as came within the mischief of section 43. There is no question here of the acquisition of any further land. Clause (b) of section 43, therefore, does not apply. The only question is. Has the Improvement Trust by re‑allocating a portion of the area reserved for a market for the erection of a mosque increased the net cost of executing the Scheme by more than Rs. 50,000 or 20 % of such cost The learned counsel appearing on behalf of the respondents have, of course, contended that by curtailing the size of the market which would have had to be constructed at the expense of the Trust itself, the Trust has not only not increased the cost of execution of the Scheme but actually reduced it by a considerable amount. As against this it is contended on behalf of the appellant that since clause (a) speaks of "net cost" there has, of necessity, to be a balancing of the income against expenditure to arrive at the net cost of executing the Scheme.
The use of the word "net", in my view, necessarily connotes that it is used in contradistinction to "gross" and the net increase can only be arrived at after deducting from the gross figure every outgoing properly deductable. Employed as an adjective, the word "net" means clear of all charges and deductions, such as discounts, commissions, rebates, interest charges, etc. Thus net profits can only be deduced after discharging or making provision for all expenditures and out‑goings chargeable against the gross profits. In the case of costs however, it is difficult to appreciate upon what principle of accounting the income expected to be realized by the execution of a Scheme is to be deducted from the gross expenses in working out the net cost. Thus, if the cost of the land proposed to be acquired is an item entering into the cost of execution of the Scheme, then the net cost would be arrived at after debiting therefrom the deductions, if any, to be made under that head. Again if it includes costs of construction of roads, drains, sewerages, etc.; then discounts on bulk purchase of materials or deductions in contractor's bills may be excluded but not the income from the sale of developed plots. The contention that if the land proposed to be given to the respondent No. 2 was sold by public auction, according to the directions of the Government or at the prevailing market prices old to respondent No. 2, is in the circumstances wholly irrelevant It has no bearing on the question of net cost'.
It seems to me to be impossible to balance the income against cost for calculating the net cost of execution of the Scheme. In this view of the matter, it seems to me 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 Improvement Act.
In coming to this conclusion I am totally excluding from consideration the objection to the erection of the mosque on sectarian grounds, since the agreement of sale itself expressly stipulates that the mosque and Madrassa proposed to be constructed on the plot will not be restricted to any sect. The respondent No. 2 has, by a resolution passed on the 17th March 1959, given a further undertaking to this Court that it does not propose to build any Imambara on the said plot at any time or to offer any tuberra in the mosque or Madrassa constructed on the said site or to confine either the mosque or the Madrassa only to Muslims of a particular sect or to restrict the use of the mosque or Madrassa to any particular sect. This undertaking should, in my view, be sufficient to allay any apprehension in the mind of the appellant on this ground. The appellant will not also suffer any serious prejudice by the erection of the Mosque for there will thereby be no serious curtailment in the amenities provided in the Scheme. The 'Trust has not yet altogether abandoned its proposal of constructing a market on the remaining portion of the site as repeatedly stated by its learned counsel. It is hoped that the Trust will adhere to this proposal and not depart from it unless permitted by the Provincial Government.
With these observations, I would dismiss this appeal but would leave the parties, having regard to the special facts of this case, to bear their own costs.
---‑I agree.
---I agree.
K. B. A. Appeal dismissed.
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