TANVIR AHMAD KHAN, J.-The petitioners have challenged the Notification No. SOP-l(88)-Auqaf/77 dated 19.1.1977, issued by the Chief Administrator Auqaf under section 6(1) of the West Pakistan Waqf Properties Ordinance 1961 (Ord.XXVIII of 1961) hereinafter referred to as an Ordinance taking over and assuming the administration, control, management and maintenance of shrine of Hazrat Hafiz Dewan Sahib and the waqf properties attached thereto. The details of the properties is given in the schedule.
2. The main ground urged by the petitioners is that the impugned Notification is without lawful authority as the property in dispute is a Shamlat Deh which does not come within the purview of provisions of the Ordinance. According to the grounds taken by the petitioner even the Dargah Sharif itself is situated on one of the Khasras of Shamlat Deh and as such the same also could not have been taken through the impugned Notification. To substantiate this aspect reliance has been placed on Jamabandi pertaining to the year 1930-31 and other revenue record wherein the land in dispute has been described as Shamlat Deh and being in possession of the Maiawars of the afore stated Khanqah. Learned counsel for the petitioner has also referred to declaratory suit No. 158 of 1962 title Altaf Hussain etc Vs Muhammad Ali, which was dismissed on 19:5.1964, by the Civil Judge Jauharabad, Sargodha on the basis of an earlier declaratory suit No.261-51 titled Sadiq Hussain Vs. Hon'ble Custodian Punjab etc. Dismissed on 19.1.1954 by Senior Civil Judge Sargodha. It was observed therein that the property in dispute was Shamlat Deh and was not open to partition.
3. Mr. Riaz Kayyani, learned counsel for the respondents has taken a preliminary objection respecting the maintainability of this writ petition. He has stated that the Ordinance has provided to any person claiming any interest in the property so declared in the Notification, remedy of petition under section 7 of the Ordinance before the District Court. It has also been stated that section 8 of the Ordinance has provided an appeal to the aggrieved party to the High Court against the decision of the District Court rendered under section 7 of the Ordinance. Further agrament has been advanced that the Civil Court's judgment relied upon by the petitioners has got only a persuasive value as the respondents were never the party in these proceedings. It has got no conclusive proof. According to the learned counsel even in these judgments which have also been relied upon by him in his written statement, certain khasra Nos have specifically been mentioned as being used for the celebration and were reserved for the purposes of Mela of Dargah Sharif. This according to the learned counsel for the respondents established beyond doubt that the property in dispute have been in use since time immemorial for the purposes of Mela and is attached to the shrine. In this regard a reference has also been made to section 2-d of the Ordinance along with Explanation-i, which provides as under: "If a property has been used from time immemorial for any purpose recognized by Islam as religious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf property."
4. I have considered the contentions. Learned counsel for the petitioners has not controverted that certain Khasra Nos. Are being used for Mela purposes. However, his main stance is that the disputed property being Shamlat Deh as mentioned in the revenue record, the same could not have been taken under the Ordinance. I do not want to delate upon the stances taken by the parties respecting the nature of the disputed property in view of my ultimate judgment. But one thing is quite evident that certain Khasra Nos. Of the disputed property have been in use for a considerable period respecting the Mela of Hazrat Shah Dewan. Further more in the Khana-i-Kasht of the revenue record, the disputed land has been shown under the possession of Maiawran of Khanqah. In this view of the matter the dispute cannot be resolved simply on the basis of Civil court's judgments as the respondents were not party therein.
5. The case involves complicated and disputed questions of facts which can only be resolved by adverting to the remedy provided under section 7 of the Ordinance. This petition is like a suit wherein issues are framed and the parties are given full opportunity to lead their evidence.
Reliance is placed upon Haji Ghulam Rasool and others Vs. Chief Administrator of Auqaf(TLD 1966 Lah. 789. Similarly in syed Muhammad Ah Shah Bukhari Vs. Chief Administrator of Auqaf (1972 SCM R 297) while dismissing the petition for leave to appeal, the Hon'ble Supreme Court has held that remedy under section 7 of the Ordinance is a comprehensive one. In another case titled Muhammad Sharif Vs. Chief Administrator of Auqaf (PLD 1971 SCM R 713) the Hon'ble Supreme Court upheld the dismissal of the constitutional petition under Article 98 of the 1962 Constitution in view of the remedy provided under section 7 of the Ordinance. The Ordinance has also provided an appeal to the aggrieved party under section 8 to the High Court against the adverse decision of the District Court. In case of assumption of jurisdiction under Article 199 of the constitution of Islamic Republic of Pakistan, the right of appeal as provided under the Ordinance to the aggrieved party would be frustrated resulting in the loss of one forum provided thereunder. It has been the consistent view of the Supreme Court that the intention of the legislature shall not frustrated. In Mumtaz Hussain alias Bhutta Vs. Chief Administrator of Auqaf (1976 SCM R 450) the Hon'ble Supreme Court has held that the recourse cannot be had to the extraordinary jurisdiction to defeat express provisions of the Statutory law. It is pertinent to mention here that the Ordinance was repealed with the promulgation of Auqaf Federal Control Act 1976 which in turn has now been succeeded by Punjab Waqf Property Ordinance 1979(Ord. IV of 1979). The express intention of the legislature is fully demonstrated through the incorporation of pari materia provisions respecting the remedy of petition to the District Court and the appeal to High Court even in the new law.
6. In the light of the afore stated provisions of law, I am certain in my mind that the exercise of jurisdiction under Article 199 of the Constitution would not only frustrate the intention of the legislature but would also deprive the other party from the remedy of appeal provided under the Ordinance. Accordingly, I am of the view that the writ petition is not maintainable in view of the availability of other effective, efficacious and comprehensive remedy provided under section 7 of the Ordinance. Since the matter remained pending in the High Court for a considerable period, I am sure that the learned District Court in case of approach by the petitioners would take into consideration all these aspects. Resultantly, the writ petition is dismissed with no order as to costs.