1. ' SALAHUDDIN AHMED, J.-The petitioner has been aggrieved by his forcible eviction from a piece of land measuring 5 kanals and 14 marlas situated in village Mahmud Booti, Tehsil and Distiict Lahore by the Chief Administrator of Auqaf and Assistant Manager, Auqaf. He claimed that he had been in cultivating possession of the land for about 50 years and the land was rent free because of the services rendered by him to the Khanqah.
2. ' It appears that the original owner of the land had died leaving 39 kanals and 16 marlas of land in village Mahmud Booti including the land in dispute. His son who claimed to be his sole heir created a waqf of the said lands including the land in dispute. By a notification dated the 22nd of September 1972, issued under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, the Chief Administrator of Auqaf took over management and control of the entire 39 kanals and 16 marlas of land. Subsequently he issued the notice dated the 14th of November, 1972, to the petitioner asking him to execute a lease deed by a certain date. As the petitioner failed to comply with the notice, steps were taken to evict him and he was ultimately ejected from the land in dispute as aforesaid. On the 14th of July 1973, the petitioner challenged the validity of his forcible eviction on a Constitution Petition under Article 201 of the Interim Constitution before the Lahore High Court but it was dismissed in limine by a learned Single Judge of the Court on the ground that the petitioner was not a tenant but was in fact in possession of the land in question as "bib lagan bawaja-a-khidmat-eKhanqah". The learned Single Judge also observed that although the Auqaf Department was prepared to accept the petitioner as a tenant he insisted to stay on the property without payment of any lagan to the Chief Administra- tor of Auqaf.
3. ' The petitioner's letters patent appeal was also dismissed in limine by a Division Bench of the High Court. Before the Division Bench the petitioner had contended that he was a tenant and as such the Chief Administrator of Auqaf could not eject him except in due process of law. With regard to this contention the learned Judges of the Division Bench observed that in his reply to the aforesaid notice the petitioner had stated that the notice was illegal and unjust and that he was not and had never been a tenant under the Chief Administrator of Auqaf. The petitioner further claimed that he was the owner of the property as claimed by him in his suit in the civil Court. The learned Judges rightly observed that the petitioner could not approbate and reprobate in the same breath about the same matter and that having `A already and clearly taken up the plea that he was not a tenant he could not then put forward before the letters patent Bench the plea that he was a tenant. The same contention has been repeated before us and we fully agree with the views of the High Court on this point.
4. ' It has also been contended before us in this respect that section 25 of Martial Law Regulation No, i15 (Land Reforms Regulation) laid down certain procedure for evicting a tenant and the particular procedure not having been followed the petitioner's eviction was illegal. As noticed already the petitioner not having been held to be a tenant the contention is not available to him.
5. ' It has next been contended that even if the petitioner is not a tenant he is protected under sections 6-A and 6-B of the aforesaid Ordinance. These sections do not apply to the facts of the case. The petitioner's eviction appears to have been made under section 6 of the same Ordinance read with rule 7 (3) (1) and (2) of the West Pakistan Waqf Properties (Administration) Rules, 1960, which are as follows :- Section 6 of the Ordinance : "Chief Administrator may take over Waqf property by notification-Notwithstanding anything in section 22 of the Religious Endowments Act, 1863, the Chief Administrator may, by notification, take over and assume the administration, control, management and maintenance of a wait property."
6. ' Sub-rules (3), (1) and (2) of Rule 7 of the West Pakistan Waqf Properties (Administration) Rules, 1960, as amended on the 12th December, 1962 : "(3) (1) After the publication of the notification under section of the Ordinance, the Manager may issue a notice requiring the occupant of the Waqf property within seven days of the receipt of the notice, to deliver vacant possession thereof to him or to execute a lease deed in respect thereof in favour of the Chief Administrator ; (2) If the occupant fails to comply with the notice issued under above sub-rule (1), the Manager may eject him with the use of such force as may be necessary."
7. It is thus evident that the petitioner having failed to comply with the requirements indicated in the aforesaid notice addressed to him he was legally evicted by force.
8. ' The petitioner has also contended that under the aforesaid rules, 7 days' notice was required to be given to him for delivering vacant possession and this time not having been given to him his eviction was illegal. The contention omits to take notice of the fact that under rule 7 (3) (1) there is an alternative, namely, "or to execute a lease deed in respect thereof in favour of the Chief Administrator". The petitioner undoubtedly failed to comply with the aforesaid notice which instead of asking him to deliver vacant possession of the property in dispute had asked him to execute a lease deed in respect of the property.
9. ' On the facts of the case the High Court in the exercise of its discretionary jurisdiction could not have granted any relief to the petitioner.
10. ' The petition is accordingly dismissed. Es.