This judgment will dispose of Writ Petition No.547 of 1976.
2. Facts as stated in the petition are that Mst. Dooli widow of Niamat Khan, a displaced person from Hushiarpur (India) inherited property of her husband according to the custom as limited owner, her husband died before partition, she succeeded, according to custom as a limited owner before partition, after partition she migrated to Pakistan and settled in Chak No.266/RB, Tehsil Jaranwala, District Lyallpur "and filed a claim for theland abandoned by her which was verified in her name as a widow of Niamat Khan. It is claimed that Mst. Dooli was treated as a full owner of the property which was settled in her name in Chak No.266/RB, Tehsil Jaranwala, District Lyallpur and that she gifted away her total holding in favour of petitioners vide Mutation No.291 on 23-12-1961.
Respondent challenged the mutation before the Revenue Authorities but the claim was rejected.
Subsequently respondents filed a suit for possession of land in the Court of Mr. Lutaf A.I Malik, Civil Judge, Lyallpur (presently Faisalabad) on 4-5-1964 which was decided in favour of the petitioner on 14-3-1968. It is stated that the judgment of the Civil Judge was not challenged in appeal or revision and the mutation remained intact.
3. Later respondents Nos.3 to 5 moved an application, under section 2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance, 1975, in the Court of Assistant Commissioner, with the powers of Assistant Collector, Jaranwala, District Lyallpur. It is alleged that the Assistant Commissioner was also exercising the powers of Collector, Jaranwala, who fixed the case for 2-3-1976, for arguments and decision, when the petitioner, filed the present writ petition to challenge the vires of Ordinance IX of 1972, Ordinance V of 1975 and Act XXV of 1975 (Punjab).
4. Learned counsel for the respondent, at the very outset raised an objection that the writ petition was not maintainable inasmuch as, the writ petitions, on the basis of which the present petition was admitted to regular hearing were subsequently decided by the Division Bench of this Court on 17-5-1976, as dismissed. It was contended that the findings recorded were that the writ petitions were being dismissed in so far as the same challenged the vires of Punjab Act (XXV of 1975) and that the other questions were not attended to. On this basis, it was argued that the Ordinance/Act were held t6 be valid legislation and thus, the writ petition could not proceed.
5. Learned counsel for the petitioners argued that he was not pressing the grounds on which the vires of the Act were challenged as the matter stands concluded by the earlier judgment of Division Bench of this Court on 13-10-1976 in Writ Petition.No.1084 of 1975 and Writ Petition No.2881 of 1975 and that he would only press his case on the basis of attack to the proceedings, before this Assistant Commissioner, in view of the provisions of section 3 of the Act (ibid). Learned counsel submitted that under section 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), any person aggrieved by the alienation or by order of succession with regard to any property allotted to refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom and who could not challenge such alienation or succession, could call it in question in a Court or before any other authority within one year of the commencement of the Act. It was argued that if any aggrieved person had not earlier challenged the alienation he could approach the authority within one year and if he had already challenged the matter in the Court, and remained unsuccessful, he could approach the same Court and not to the authority and since in this case, the respondents had already challenged the alienation and mutation rested thereon, in the Civil Court, therefore, they could not approach the Collector and resultantly, the proceedings before the Collector would be incompetent.
6. As noted supra, the writ petition was mainly filed, to assail the vires of the Act. It was admitted to regular hearing, on the basis of references made to the earlier writ petitions which were pending at that time. In those writ petitions similar questions were raised but the petitions were ultimately dismissed by a Division Bench of this Court vide order, dated 13-10-1970 in Writ Petition No. 1084 of 1975 and Writ Petition No. 1897 of 1975. In the said order, it was observed that the writ petitions were dismissed by holding the Act as valid and that the other questions were not attended to or decided as the same would be decided by the appropriate forums. This being so, the petition cannot proceed, for the reason, that the question raised herein has already been decided and stands concluded.
7. Regarding the other objections, these can be raised before the forum where the application of respondents is pending. It is for the forum to decide, as to the effect of section 3 of the Act (ibid). If the decision rendered is that the application is competent, the same would be heard and decided on merit and if the forum reaches the conclusion that the parties should go to the Civil Court, the order will be passed, accordingly. In any case, the maintainability of the petition, of respondents, in view of section 3 of the Act will be examined by the forum concerned, which will render the decision in accordance with law. This petition is, therefore, dismissed with the above observations.