' The relevant facts for the decision of this Constitutional petition are that the petitioner proceeded to take over Gaddi Koh Kirana and property attached to the same vide Notification dated 28-1- 1970, which was published in the official Gazette on 11-4-1970. The respondents filed a suit for declaration that they are owners in possession of the suit land, which is not a Waqf property and the defendants have no right to assume its management and control. The petitioners contested the suit. The trial Court accordingly framed following issues:--
(1) Whether this Court lacks jurisdiction? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is time-barred? OPD
(4) Whether the suit is bad for non-joinder of parties? OPD
(5) Whether the plaintiffs are estopped to bring this suit? OPD
(6) Whether the plaintiffs have no cause of action and no locus standi to bring the suit? OPD
(7) Whether the plaintiffs are owner in possession of the suit land on the basis of allotment by the competent Authority? OPD
(8) Whether the property in dispute is Waqf? If so, its effect? OPD Relief.
' The trial Court thereafter recorded evidence and after hearing the arguments decreed the suit vide judgment dated 13-5-1976, which was assailed through an appeal before the learned District Judge, Sargodha. The appeal was dismissed vide judgment dated 5-11-1977. The petitioners thereafter moved application for review of this judgment, which was dismissed vide judgment dated 6-7-1978. Thereafter, the petitioners filed the present writ petition, which was admitted to hearing and notice was issued to the respondents, who in spite of service did not appear, therefore, they were proceeded ex parte.
2. The learned counsel for the petitioners argued that the petitioners proceeded to initiate proceedings of take over after the decision of the Hon'ble Supreme Court reported as Mian Ahmad All v. The Rehabilitation Authority through the Deputy Rehabilitation Commissioner, Sargodha PLD 1964 SC 229 whereby the property was declared as Waqf, therefore, no Court in the country can sit in judgment and give a fording contrary to that of Hon'ble Supreme Court. The next argument is that the Civil Court has no jurisdiction, therefore, both the judgments and decrees of respondents Nos.1 and 2 are void ab initio. In this behalf, reference is made to section 7 of the West Pakistan Waqf Properties Ordinance, 1961, according to which the only remedy was petition to the District Judge. It is argued that since the decree of the Civil Court was without jurisdiction, therefore, the question of limitation does not arise. In this behalf, the learned counsel has referred to Syed Muhammad Alam v. Syed Mehdi Hussain and 2 others PLD 1970 Lahore 6, The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others PLD 1990 SC 1070. It is submitted that this Court under section 115, C.P.C. And Article 203 of the Constitution of Islamic Republic of Pakistan, 1973, has jurisdiction to correct the jurisdictional defects and set aside judgments and decrees completely without jurisdiction.
3. Have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record and precedent cases. It is clear from the judgment of the Hon'ble Supreme Court in the case of Mian Ahmad All (supra) that the Auqaf Department was justified to treat the property as Waqf and issue the notification of, take over. The brief background of the judgment is that the property attached to Gaddi Koh Kirana was treated as evacuee. The appellant in that case sought declaration to the effect that the property attached to Gaddi Koh Kirana was not evacuee property and he was the Gaddi Nashin and Manager of the property. The relief was not given to the appellant up to Custodian. Therefore, he filed appeal in the Hon'ble Supreme Court.
The appeal was accepted. The Hon'ble Supreme Court held as under:- "As to the nature of the property which is attached to this institution it may be stated that according to the application of the appellant as well as according to the evidence which he led the property which is attached to this institution 'has been dedicated generally by Muslims'. As has already been stated in accordance with the defamation of Waqf all property permanently dedicated by a Muslim to such an institution becomes Waqf for the dedication is for a religious or charitable purpose."
' The Hon'ble Supreme Court thereafter proceeded to allow the appeal. The operative portion of the judgment reads as under:-- "This appeal is allowed, the order of the Custodian is set aside and the appellant is granted a declaration that the property of Gaddi Koh Kirana is not evacuee property and that the appellant is entitled to its management as Gaddi Nashin or Mutawalli. There is no order as to costs."
' It seems that in spite of this judgment or may be in the meanwhile, pending the decision of the Hon'ble Supreme Court the Settlement Authorities treated the property as evacuee and transferred a portion of it to various persons and 67 such persons, who were allotted land in Chak No,142/SB, Tehsil and District Sargodha, filed application for review of the above judgment. The same was dismissed vide judgment 16-10-1964. It was observed that applicant or anybody who claimed that certain property did not appertain to Gaddi Koh Kirana, it would be still open to him to pursue the remedy to establish such fact. There is nothing on record that if there was any such effort by any party. Therefore, the suit of the respondents was utterly misconceived and neither the Civil Court nor the First Appellate Court nor this Court has any jurisdiction indirectly or directly to set aside the finding recorded by the Hon'ble Supreme Court. If looked from this angle it was, a case of total lack of jurisdiction.
4. Now coming to the bar of jurisdiction as contained in section 7, which reads as under:-- "7. Petition to District Court against notification.--(1) Any person claiming any interest in any Waqf property in respect of which a notification has been issued under the last preceding section may, within thirty days of the publication of such notification, petition to the District Court within whose jurisdiction a part of the Waqf Property is situated for a declaration--
(a) that the property is not Waqf property;
(b) that the property is Waqf property within the limits stated in the petition."
' A person aggrieved by the order of the District Judge can appeal to this Court under section 8 of the Ordinance and according to section 10 the decision of the District Judge and in case of appeal of this Court is final while section 17 expressly bars the jurisdiction of Civil, Revenue Courts and other authorities. These provisions were interpreted in the case of Chief Administrator of Auqaf v.
Muhammad Ramzan and others PLD 1991 SC. 102, Syed Muhammad All Shah Bokhari v. The Chief Administrator of Auqaf, Punjab, Lahore and 3 others 1972 SCMR 297 and Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450. In C.R.
No,474/95 the object of the codified law was explained as under:-- "6. The object of the codified law is that a cunning and influential litigant should not be allowed to get away with illegal gains."
Respondents Nos.1 and 2 failed to appreciate that the petitioners having proceeded to take over the property as Waqf and notification having been issued and so far the action of the petitioners could only be challenged through a petition under section 7 and not otherwise.
5. It is clear from the above discussion that it is a case of total want of jurisdiction and in other words the order is void. The learned counsel, in this behalf, referred to case of The Chief Settlement Commissioner, Lahore (supra), wherein it was held as under:-- "An Order is to be treated as void only when it is made by a Court, Tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to 'a usurpation of power unwarranted by law', and accordingly it would be a nullity."
' While in the case of Syed Muhammad Alam (supra) this Court held that order appealed against found to be nullity the Appellate Authority still could entertain and decided the appeal on merits.
Similarly, in the case of Ahmad Khan (supra) it was held that Minister for Consolidation had no authority to interfere with the confirmed consolidation scheme under the West Pakistan Consolidation Holdings Ordinance, 1960, therefore, all subsequent orders have to be treated as void and nullity.
6. Now coming to the another aspect. It is clear from the judgments of respondents Nos.1 and 2 and they have failed to advert to law applicable and the judgment of the Hon'ble Supreme Court, therefore, High Court while exercising Constitutional jurisdiction under Article 199 can quash such void orders. In this behalf, reference can be made to Mst. Amina Begum represented by Legal Heirs v. Sh. Muhammad Nazir and others PLD 1985 SC 260 and Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698.
7. This Constitutional petition being directed against the proceedings arising from a civil suit, therefore, this Court is empowered under Article 203 of the Constitution of Islamic Republic of Pakistan to correct jurisdictional defects and set aside such judgments. Reference, in this behalf, can be made to Malik Salman Khalid v. Shabbir Ahmad, D&SH, Karachi and another 1993 SCMR 1873, Malik Muhammad alias Malkoo v. Jan Muhammad 1989 CLC 776, Mst. Naghma Jabeen v.
Muhammad Ayoob and another 1988 CLC 986 and Muhammad Siddiq v. Syed All Shah and another PLD 1976 Lahore 293 wherein the relevant portion reads as under:-- ... ...In exercise of my suo motu jurisdiction under Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973, I directed that the records of these cases should be called for and issued notice to the parties to show cause as to why the short order passed therein should not be set aside and the respective case be not remanded to the learned Judge Family Court concerned for fresh disposal in accordance with law. That the High Court has judicial control over the subordinate Courts under Article 203 of the Constitution, is well laid down in Mst. Gaman v. Taj Din PLD 1968 Lah.
987, Abdul Reham v. Mst. Chaman Ara PLD 1972 Kar. 164, Mst. Farida Parwin v. Qadeeruddin Ahmad Siddiqui PLD 1971 Kar. 118 and Karim Bakhsh v. Mst. Mubarik Jan PLD 1970 Pesh.
169. By exercising the aforesaid jurisdiction High Court can direct the Family Court to do that which it was bound by law to do... ... ."
' This Court even after coining to' now of these facts had suo motu jurisdiction to adjudicate the vires of the judgments and decrees of respondents Nos.1 and 2 under section 115, C.P.C. I am fortified in my view by the judgments in the cases of Messrs Kohistan Travel Service and another v.
Province of Punjab through Collector, Lyallpur and 2 others PLD 1977 Lahore 85, Morio Goth Welfare Association v. Muhammad Bachal and 6 others 1985 CLC 1680 and case of Malik Muhammad alias Malkoo (supra) wherein after referring to the judgments in the cases of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Muhammad Swaleh and another v. Messrs. United Grain and Fodder Agencies PLD 1964 SC 97, it was held as under:-
11. It is bounden duty of all Courts to decide causes in accordance with law. The lower Courts are under Constitutional obligation to follow the decision of Hon'ble Supreme Court and this Court on questions of law as per Articles 189 and 203 of the Constitution of Islamic Republic of Pakistan, 1973."
This way High Court has ample powers not only under Articles 199 and 203 of the Constitution of Islamic Republic of Pakistan, 1973 but also under section 115, C.P.C. To set aside order, judgment and decree of subordinate Courts patently without or in excess of jurisdiction. Respondents Nos.1 and 2 have exercised the jurisdiction not vested in them, therefore, their judgments-and decrees are liable to be set aside.
8. There is yet another interesting aspect of the matter that Custodian of Evacuee Property was successor of the evacuees while Settlement Department was its successor. The plaintiffs, transferees of the land this way were the successors of the Settlement Department. The status of the property having been determined between the Gaddi Nashin and the Custodian of Evacuee Property, therefore, the Settlement Department and transferees from it were bound by this decision of Hon'ble Supreme Court against the Custodian. They could not raise the same question once again. The respondents have suffered due to the act of Government Department, therefore, the Chief Settlement Commissioner is directed to provide alternate accommodation to the respondents expeditiously and in any case by 31-3-1996.
9. The upshot of the above discussion is that the judgments and decrees of respondents Nos.1 and 2 are declared without jurisdiction, illegal and void by accepting this writ petition. There is no order as to costs.