1. Chief Administrator of Auqaf, defendant in the suit filed by the plaintiffs Allah Ditta and his brother Noor Mohammad to have it declared that the land subject, matter of litigation was exclusively owned and possessed by them, is in revision before this Court. Trial Court decreed the suit on 16-2- 1987. Appeal filed against the decree of the trial Court at the instance of District Manager, Auqaf Muslim was dismissed on 15-5-1989 by Additional District Judge, Gujrat wherein conclusions reached by the trial Court in its judgment were affirmed.
2. By notification dated 5-12-1978, 101 kanals, 17 marlas of land attached to Khanqah Gharib Shah in Mauza Dhabwala, Tehsil Phalia was taken over for its control, management and maintenance as Waqf property by the Auqaf Department. This action was taken under section 7 of Act LVI of 1976-- Auqaf (Federal Control) Act, 1976. On 10-6-1979, Allah Ditta and his brother Noor Mohammad brought a civil suit against province of Punjab through Collector District Gujrat, Chairman Muslim Waqf Board, Province of Punjab, Lahore, and, District Manager Auqaf Muslim, Gujrat, in the Civil Court at Gujrat for judicial nullification of the act of taking over of the land for its trial and management and to claim that the taken over land was owned and possessed by them as their personal property. Defendants in the suit joined issues with plaintiffs and controverted the averments in their plaint. Amongst other pleas, an objection to the assumption of jurisdiction over the subject matter of the dispute by the Civil Court was also raised.
3. Pleadings gave rise to the following issues:- '
4. (1)Whether the plaintiffs are the owners in possession of the property in dispute? OPP.
5. (2)Whether the description of the suit property is incorrect? OPD.
6. (3)Whether this Court has no jurisdiction to try this suit? OPD.
7. (4)Whether the suit is time-barred? OPD.
8. (5)Whether the property in dispute is a waqf and is under the control and supervision of defendant No.2? OPD.
9. (6)Relief.
10. On behalf of the petitioner, it was submitted by Mr. Riaz Kayani that the jurisdiction of the Civil Court was barred expressly by the provisions in Act LVI of 1976 under which the action was taken by the petitioner. To support absence of jurisdiction, reliance was placed on the decisions in Muhammad Sharif v. Chief Administrator of Auqaf. Punjab. Lahore 1971 SCMR 713, Sayyed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf Punjab, Lahore and 3 others 1972 SCMR 297, Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab. Lahore and another 1976 SCMR 450 and section 7 read with sections 11, 13, 21 and 22 of the aforenoticed Act. As against this, Ch. Inayat Ullah, learned counsel for the respondents argued that on the agreed finding reached on the point of ownership of the property in dispute, Civil Court was vested with jurisdiction to give the necessary declaration. In this behalf, observations in the case of Mr. Muhammad Jamil Asghar v.
11. The Improvement Trust, Rawalpindi PLD 1965 SC 698 were pressed in force. "Waqf property" was defined in section 2 (f) of the Auqaf (Federa: Control) Act, 1976. Section 7 of the Act authorises taking over of the waqf property for its administration, control, management and maintenance by the Auqaf Department. Section 11 of the Act provides a remedy against the action of taking over of the property as waqf property. It says that any person claiming any interest in the property in respect of which a notification has been issued may within thirty days of the publication of such notification prefer a petition to the Districl Court for a declaration that the property or any part of it is not waqf property, Section 12 of the Act provides for an appeal to the High Court against the decision of the District Court. In case of non-filing of the appeal, section la of the Act declares that the decision of the District Court shall be final. Section 21 expressly bars jurisdiction of the Civil or Revenue Court or any other authority to question the acts of the Auqaf Department and prohibits granting of an interim relic in regard thereto. Section 22 gave an overriding effect to the orders passed and actions taken under the Act. In case of Muhammad Sharif, the Chief Administrator of Auqaf, Punjab, had by a notification issued under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, assumed management of certain land as waqf property. Muhammad Sharif denied that it was waqf property and claimed that it was his personal property Instead of proceeding in the direction pointed in the Ordinance, a 'writ petition calling in question the validity of notification was filed in the High Court. High Court dismissed the writ petition holding that section 7 provided an adequate alternative remedy. In petition for special leave to appeal, it was observed by the Supreme Court that, "section 7 of the Ordinance provides that any one aggrieved by a Notification under section 6 can move the District Judge having the territorial jurisdiction to have a declaration that the property in question is not a waqf property. An appeal against the decision of the District Judge lies to the High Court. In view of the remedies available under the Ordinance, the High Court was right in dismissing the writ petition. In fact, the petitioner, as conceded by the learned counsel, has since moved the District Judge under section 7 of the Ordinance". In the case of Sayyed Muhammad Ali Shah Bokhari, act of Chief Administrator Auqaf assuming control, management and maintenance of Dargah known as Hazrat Karmanwala was challenged in a petition to the District Court. While the case was pending before the District Judge, a petition in constitutional jurisdiction challenging the action of Chief Administrator of Auqaf on the ground that it was unlawful and without legal authority, was filed in the High Court. It was argued that since Ordinance precluded the remedy of an injunction, it was not an adequate remedy. A Division Bench of this Court dismissed the writ petition. In petition for special leave to appeal, the Supreme Court observed, "A study of the Ordinance on the whole, does yield the conclusion reached by the learned Judges that the Legislature has dispensed with the requirement of a show-cause notice before taking action under section 6. A comprehensive remedy has been provided by section 7 of the Ordinance by an application to the District Judge to challenge the validity of action taken. Even while providing that remedy, the Ordinance has ousted the jurisdiction of the District Judge and the High Court to issue injunction against the Chief Administrator, Auqaf, to restrain him from assuming control of the property as waqf property under section 6. This clearly demonstrates the intention of the law-giver that the assumption and control of the properties by the Chief Administrator, Auqaf, under the Ordinance, should continue to remain uninterrupted till the disposal of the question of title on merits by the Civil Courts". In Mumtaz Hussain alias Bhutta, similar views were expressed by the Supreme Court. No decision directly in point was brought to my notice by the, learned counsel for the parties. However, I have been able to discover a decision in the case of Anjuman Insar Ul Islam v. Ghulam Oadir etc. PLD 1981 Lah. 737 which materially assists the decision on the point of jurisdiction. Relevant observations are in paragraph 12 of the Report at page 659 which read, "It will be seen that the respondents had filed a civil suit to seek a declaration about the title of a property which had been taken over by the Chief Administrator of Auqaf under section 6 of the West Pakistan Waqf Properties Ordinance, 1959. That Ordinance provides an exclusive procedure for redress of any grievance that may be there. It lays down a period of one month to challenge the notification taking over any such property. Admittedly, the respondents did not challenge the original notification of 1900. Rather, they went on paying rent for about 9 years. It is, thereafter, that they filed the Civil suit. As said above, section 17 of the above Ordinance bars any other remedy and ousts the jurisdiction of the Civil Court. The District Judge, therefore, unlawfully assumed jurisdiction to decide the appeal on merits." In my opinion, the aforenoticed case enunciates a correct statement of law and I respectfully agree with it. The scheme of the Act visibly demonstrates its clear intent that the remedy specified in the special legislation was exclusive and not concurrent. In view of the nature of the property and the issues involved for determination, it was thought fit to confer exclusive jurisdiction on the District Court to decide whether the property taken over was waqf or not and this matter was not left for decision by the ordinary Civil Courts.
12. Parallel litigation in different forums was not contemplated. Term `jurisdiction' which refers to the legal authority and the competence of the Court to administer justice is conferred by law only. It can neither be conferred nor taken away by consent of parties. Even submission shall not confer jurisdiction where it does not exist. Provisions in the Act LVI of 1956 later substituted by parallel provisions in Punjab Waqf Properties Ordinance, 1979 gave clear indication that jurisdiction of ordinary Civil Courts was expressly barred by a special remedy provided in section 7 of the Act. In this view, it is difficult to uphold the views expressed by the Courts below about their jurisdiction over the subject-matter in dispute. I would, accordingly, accept the petition and order return of plaint to the plaintiffs for its presentation to the Court of competent jurisdiction leaving the parties to bear their own costs of the litigation.