' Section 11 of the Auqaf (Federal Control) Act, 1976 (now repealed) provided for a petition to the District Court against a notification issued under section 7 of that Act for a declaration that the property taken over or any part thereof was not Waqf property.
2. The petitioner Administrator Auqaf on 4-10-1977 issued a notification to take over and assume the administration, control, management and maintenance of the Shrine of Hazrat Sakhi Ghulam Qadir Sahib and Shrine of Hazrat Ali Asghar alias Chanpir Sahib, Tehsil Pakpattan, District Sahiwal.
In the schedule there immovable properties were identified to comprise in the aforesaid shrines.
The predecessor-in-interest of the present respondents Syeda Ali Begum on 5-11-1977 filed an application under section 11 of the said Act impugning the above notification and sought a declaration from District Judge, Sahiwal that the properties mentioned in the schedule of the said notification were not Waqf properties. Also that the notification in question was issued without jurisdiction and was, therefore, void. Initially, the petition was contested and a written statement supporting the impugned notification was filed on 3-5-1978 However, subsequently, during the proceedings on 15-10-1979, an application was filed informing the Court that the impugned notification had been withdrawn on 7-8-1978 and that the defendant/now petitioner- Administrator, Auqaf had no concern with these Shrines. On this the learned District Judge, Sahiwal recorded the statement of the counsel for the defendant/present petitioner herein he repeated the contents of the aforesaid petition. The learned District Judge accordingly by way of the impugned'order recorded on the same day i,e, 1510-1979 disposed of the petition. In the operative part of the order, it was recorded that since the defendant/department had admitted that they had no concern with the property in dispute, the petitioner was entitled to the grant of declaration as prayed for Accordingly, it was so granted and declared that the property mentioned in the impugned notification was not Waqf property. This part of the order has grieved the Department.
3. Parties have been heard.
4. The learned counsel for the petitioner assails the impugned order on the ground that the learned District Judge wrongly declared the property in question to be a Waqf property inasmuch as no such statement was either made before him nor from the application dated 15-10-1979 such an inference could have been drawn. He explains that mere withdrawal of notification ought to have satisfied the present respondent and her application disposed of having become infructuous. It is further stated that the aforesaid operative part of the impugned order is apparently void and without jurisdiction and, therefore, could be assailed at any time regardless of the time limit. As to the maintainability of the Constitutional petition, he relies upon The Murree Brewery Co. Ltd. v.
Pakistan through the Secretary to Government of Pakistan and 2 others PLD 1972 SC 279, wherein it was found that availability of alternate remedy was not a rule of law and that where orders of statutory bodies were attacked on the ground of jurisdiction, the High Court could exercise Constitutional jurisdiction. Also places reliance on Utility Stores Corporation of Pakistan Limited v.
Punjab Labour Appellate Tribunal and others PLD 1987 SC 447, wherein Nasim Hassan Shah, J.
Agreeing with Muhammad Haleem, Chief Justice held the view that where law was not properly and correctly observed, it was a fit case for interference by High Court in exercise of its Constitutional jurisdiction.
5. The learned counsel for the respondent, however, questions the maintainability of the petition both on facts as well as on law. It is claimed that the original respondent Mst. Syeda Ali Begum was not alive when this petition was filed. She had already died on 15-8-1985 while this Constitution petition was filed on 6-5-1986. The subsequent implement of her legal heirs is described to be of no legal validity. Also it is claimed that section 12 of the aforesaid Act provided for an adequate and effective remedy in the form of appeal which as never availed by the present petitioner. Reference is also made to section. Of the said Act which provided that in absence of an appeal the decision of the High Court and in case of no appeal the decision of the District Court shall be final. Lastly it is submitted that this petition must fail for laches inasmuch as without offering any explanation of delay, this Constitutional petition was filed on the aforesaid day challenging the order of the District Judge, dated 15-10-1979. According to the learned counsel for the respondent, the petitioner has not offered any explanation for delay of about 7 years. In support of his submissions that the impugned order passed by District Judge, Sahiwal could not be described to be void, the learned counsel places reliance upon Zafar-ul-Ahsan v. The Republic of Pakistan (through Cabinet Secretary, Government of Pakistan) PLD 1960 SC 113, The Chief Settlement Commissioner, Lahore v.
Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Muhammad Hussain Munir and others v.
Sikandar and others PD 1974 SC 139, Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCM R 322, Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981- SC 522. Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131, Hira Lal Patni v. Sri Kali Nath AIR 1962 SC
199. The filing of the petition against a dead person is assailed on the authority of Rampratab Brijmohandas and others v. Govrishankar Kashiram AIR 1924 Born. 109, Cuttack Municipality v.
Shyamsundar Behera AIR 1977 Orissa 137. The objection against filing of petition without any explanation for the delay is supported by citing Khan Bahadur v. Sher Ahmed and 3 others PLD 1993 Pesh.
241. In support of his submissions that in the presence and availability of an adequate remedy provided by law in the form of an appeal to this Court, no such petition could be entertained, the learned counsel relies upon Muhammad Sharif and another v. Muhammad Afzal Sohail and others PLD 1981 SC 246, Messrs Tank Steel and Re-rolling Mills (Pvt.) Ltd. Dera Ismail Khan and others v.
Federation of Pakistan and others PLD 1996 SC 77, Chief Administrator of Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102, Shaikh Gulzar Ali & Co. Ltd. And others v. Special Judge, Special Court of Banking and another 1991 SCM R 590 and Muhammad Sharif v. Chief Administrator of Auqaf, Punjab, Lahore 1971 SCM R 713.
6. After considering the rival arguments, I will not hesitate in concluding that most of those put forth at the bar for the respondent must be prevailed. The filing of this petition against a dead persons is almost admitted. There is no explanation whatsoever for delay in filing of this petition which spread over seven long years. The slumber of the petitioner for such a long time is otherwise not understandable. Also there hardly appears a good reason for not approaching this Court in its appellate jurisdiction as provided for under the law.
7. The reported judgments relied upon by the learned counsel for the petitioner with regard to the entertainment of Constitutional petition, are not attracted in the facts and circumstances of the case. The learned counsel for the respondent has rightly placed reliance upon the aforesaid judgments wherein a void and an order without jurisdiction was explained. The competency of the District Court to make a direction of the kind sought for is not challenged as such. The only grievance of the petitioner is that mere withdrawal of notification and carrying over that information to the Court did not clothe it with the authority to give a declaration to the present respondent that the property in question was not Waqf. If this proposition is accepted as correct still the order cannot be described as without authority. In this connection reference to cases re: Noor Muhammad v. Sarwar Khan and 2 others (supra) and Abdul Rehman Bajwa v. Sultan and 9 others (supra) is pertinent and relevant. In re: Muhammad Zahoor and another v. Lal Muhammad and 2 others (supra), the apex Court expressed the view that it was, not possible for it to lay down the wide proposition that the Constitutional jurisdiction of the High Court was not at all invokable in respect of an order passed by a civil Court . The filing of Constitutional petition against order of the civil Court was disapproved unless such orders was wholly void or coram non judice. In this case, the order in question is neither void nor coram non judice. No cogent reason whatsoever exists to warrant such a finding. It is correct that the view of the Supreme Court of Pakistan that where a Tribunal had jurisdiction to decide a matter it was competent to decide it rightly or wrongly has undergone some change. However, the parameters settled in this regard are so certain when seen in the light of the view held by the Supreme Court qua an order without jurisdiction that there hardly appears any chance of a mistake. Also the distinction between a void and voidable order as laid down by the apex Court in Re: Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (supra) does not admit of any ambiguity. The impugned order in the light of the dictum settled therein certainly does not belong to former category.
8. As noted earlier, there is neither any explanation for filing of petition within a delay of 7 years nor there appears any reason whatsoever to justify failure to file an appeal against the aforesaid order.
Even if the factum of bringing on record the legal representatives of the deceased respondent is condoned, still the aforesaid two objections have not been answered. The discretion vested in this Court to exercise Constitutional jurisdiction in the kind of situation emerging from the record, therefore, will hardly be justifiable both on facts as well as on law.
9. Therefore, this petition shall be dismissed with costs.