IHSAN-UL-HAQ CHAUDHRY, J. -- The relevant facts for the decision of this Constitutional petition are that the petitioners are in possession of land attached to Shrine of Hazrat Shab Sadiq Nahang, Tehsil Shorkot, District Judge since times immemorial. The Shrine was taken over by Auqaf. The order of take-over was ultimately upheld by the Hon'ble Supreme Court. Judgment is reported as PLD 1987 Supreme Court 60 (Faqir Muhammad Khurshid and others Vs. Chief Administrator of Auqaf).
Thereafter, there was dispute between the department and Land Commission. The same was ultimately decided again by the Hon'ble Supreme Court. The grievance of the petitioner is that they are being illegally evicted by the department from the land.
2. In order to better appreciate the grievance of the petitioners it was decided to hear the respondents at the limine stage. Accordingly notice was issued to them. Mr. Riaz Kiani, Advocate has appeared on behalf of the respondents.
3. The learned counsel for the petitioners argued that the rights of tenant on the eye of take-over of the property are intact. In this behalf learned counsel has referred to the judgment of the Hon'ble Supreme Court reported as PLD 1971 Supreme Court 376 (Haji Ghulam Rasool and others Vs. The Chief Administrator of Auqaf, West Pakistan). It is added that the possession of the petitioners cannot be disturbed except in due course of law. In this behalf' reference is made to 1975 SCMR 104 (Muhammad Sharif Vs. Chief Administrator Auqaf, etc.). It is argued that the respondents department has got the standing Rabi crops 1996 attached under Section 144 of the Criminal Procedure Code thereby admitted the petitioners as tenant. It is argued that inaction of the department for 39 years proved the contentions of petitioners. It is argued that the department has to submit a scheme as required under Section 15 and the Government has power to sell the land under Section 16 of the Punjab Waqaf Ordinance, 1979.
4. On the other hand, Mr. Riaz Kiani, Advocate, argued that the petitioners would be dealt in accordance with law. It is addedlhat Martial Law Regulation No. 115 is a general law and Punjab Waqf Ordinance, 1979, which is special law would be applicable to the petitioners. It is added that earlier respondents were allowed to auction the land by the Hon'ble Supreme Court vide order dated 2.5.1995 passed in C.M.A. No. 230/95. It is argued that MLR`-115 is not applicable to the respondent's department because it is not a 'person' as held by the Division Bench of this Court in writ petition No. 452, decided on 9.3.1993. It is argued that the Land Reforms are not applicale to the department as held by the Hon'ble Supreme Court in judgment of PLD 1996 Supreme Court 132 (Chief Land Commissioner, Punjab Vs. Chief Administrator of Auqaf, Punjab). It is argued that the Auqaf Ordinance, 1979 being a special law is a govern relationship between the parties. In this behalf learned counsel has referred to Book titled Standing statute by S.M.Zafar and relied on PLD 1985 Peshawar 32 (The Sarhad Industrial Employees' Association Vs. The Secretary to Government N.VV.F.P. Industries, Commerce, Mineral Development Labour Transport Department, Peshawar) and PLD 1997 Lahore 692 (Muhammad Sharif Vs. Station House Officer, Police Station City, Hafizabad and another). The learned counsel for petitioner Mr. Muhammad Saeed Akhtar, Bar-at-Law, while summing up the arguments submitted that the MLR 115 is a Central Statute therefore, in view of the provisions of Article 143 of the Constitution of Islamic Republic of Pakistan, 1978, would have over- riding effect over the provincial statute to the extent of contradiction.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, precedents and relevant provisions of law. The respondent department is not a 'person', therefore, MLR 115 is not applicable to it as held by the learned Division Bench of this Court, therefore, the relationship between the petitioners and respondents department would be governed by the' Auqaf Ordinance, 1979. The learned counsel for the respondents more than once made it clear that the petitioners would be dealt in accordance with law. The other ground that the property cannot be put to auction. The petitioners cannot make this complaint against moreso when the Hon'ble Supreme Court hag already write vide order dated 2.5.1995 allowed department to proceed with the auction.
6. The upshot of the above discussion is that this petition is disposed of with the observations that the petitioners would be dealt in accordance with the Waqaf Ordinance, 1979.