ARBAB ALTAF QADIR vs AUQAF Ss — 2022 CLC 644 PESHAWAR-HIGH-COURT

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ARBAB ALTAF QADIR VS AUQAF Ss.2(e), 7 & 11---Limitation Act (IX of 1908), Ss. 5 & 29---Notification by Chief Administrator Auqaf---Condonaiton of delay---Applicability---Appellants/applicants alleged that land along with superstructure of a Mosque along with 2 shops was owned and possessed by them; that Auqaf department took over administrative control management/maintenance of the said property vide notification; that that property in question was not Waqf property; that neither the notification was served upon appellants nor it was affixed on some conspicuous part of the property; that they came to know about the said notification during pendency of the suit filed by them before civil court; that delay in filing petition was not deliberate; that such acts of the Department were illegal, mala fide and void---Trial Court rejected appellant's petition under O.VII, R.11 of Civil Procedure Code, 1908 on ground of being barred by time (with 52 years delay)---Validity---Notification in question issued by Chief Administrator of Auqaf Department was duly published by Authority in Gazette---"Waqf property" meant property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable---If a property had been used from time immemorial for any such purpose, then in spite of there being no evidence of express dedication, such property would be deemed to be waqf property---When a waqf was created, all rights of property passed out of waqif and vest in the Almighty---Chief Administrator while exercising powers under S. 7 of Khyber Pakhtunkhwa Waqf Property Ordinance, 1979, issued impugned notification by taking over and assuming the administrative control, management and maintenance of the mosque in question---Such property had to be registered under S.6 of the Ordinance, 1979, by every person acting as in-charge including a person creating the waqf, however, non-compliance of the provisions of said S.6 would not oust the powers of the Chief Administrator from taking over such property by way of notification---Appellant did not challenge the impugned notification within the stipulated period of 30 days and remained mum for a period of more than 5 decades in year 2011---Impugned notification was issued in year 1960 while the provisions of service of notification and its affixation on some visible place was inserted vide Khyber Pakhtunkhwa Act, 1985---Ordinance, 1979, was a special law for the purpose of S.29 of the Limitation Act, 1908 which made it clear that S.5 of Limitation Act, 1908, would not apply to an application under a special or local law---Impugned notification was also discussed by Civil Judge in an interlocutory order in appellants' suit, meaning thereby the appellants were already in knowledge of such notification as the present petition was filed on 05/03/2011---Appeal was dismissed accordingly. Head Notes

ARBAB ALTAF QADIR vs AUQAF Ss — 2022 CLC 644 PESHAWAR-HIGH-COURT

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