Sayyed MUHAMMAD ALI SHAH BOKHARI vs Tim CHIEF ADMINISTRATOR OF AUQAF PUNJAB, LAHORE AND 3Other

1. SAJJAD AHMAD, J.-The Chief Administrator of Auqal assumed the control, management and maintenance of the Dargah of Syed Muhammad Ismail Shah (commonly known as Hazrat Karmanwala) in Chak No. 56/2-L, Tehsil Okara, by a notification dated the 26th of February 1971, under section 6 of the West Pakistan Waqf Properties Ordinance No. XXVIII of 1961. The petitioner , who is a son of the late saint, filed an application under section 7 of the aforesaid Ordinance before the Distri ct Court, Sahiwal, for a declaration that the property in question was not Waqf property , and, therefore, could not be taken over as waqf. That case is pendin g before the District Judge. Not- -withstanding this remedy invoked by him, the petitioner filed a writ petition in the High Court, challenging the action of the Chief Administrator of Auqaf, on the ground that it was unlawful and witho ut legal authority , as it was not preceded by a show---cause notice to him. The writ jurisdiction was invoked on the ground, inter alia, that the Ordinance, which provided a remedy by way of an application to the District Judge, precluded the remedy of an injunction by the District Judge or the High Court, on appeal, to restrain the Chief Administrator , Auqaf, from interfering with the possession of the property , which, according to the petitioner's claim, was his private property . A Division Bench of the High Court has dismissed the writ petition, leading to this petition for special leave.

2. The learned counsel for the petitioner has urged that section 7 of the Ordinance, which has already been availed of by the peti--tioner , is not an adequate remedy , as it merely provides an ex post facto hearing. The issuance of a notification, according to him, before giving the petitioner an opportunity to prove that the property was not waqf property , was clearly in violation of the principles of natural justice. He has argued that the rule of audi alteram parrem must be read into section 6 of the Ordinance to provide an opportunity to the person concerned, whose property is to be affected, to show cause against it before the property is actually taken over. The learned Judges of the High Court have repelled this contention on very good grounds. A study of the Ordinance on the whole, does yield the conclusion reached by the learned Judges that the Legislature has dispensed with the requirement of a show-cause notice before taking action under section 6. A comprehensive remedy hasp been provided by section 7 of the Ordinance by an application to the District Judge to challenge the validity of action taken. Even while providing that remedy , the Ordinance has ousted the jurisdiction of the District Judge and the High Court to issue injunction against the Chief Administrator , Auqaf, to restrain him from assuming control of the property as waqf property under section 6. This clearly demonstrates the intention of the law-giver that the assumption and control of the properties by the Chief Administrator , Auqaf, under the Ordinance, should continue to remain uninterrupted till the disposal of the question of title on merits by the civil Courts.

3. It has been brought to our notice by the learned counsel for the respondents that in the present case, a notice was given to the petitioner after the issuance of the notification, but he did not bother to make use of it. If the petitioner was serious to contest the issuance of the notification, he could have, in pursuance of the notice received by him, approached the Chief Administrator to present to him his side of the case to persu ade him to recall the notice, just as he thinks he could have persuaded him not to issue it, if he had been provided with prior opportunity to show cause against its issuance.

4. We are of the opinion, that the judgment of the High Court is perfectly sound, and no interference in the same is called for . We would, therefore, dismiss this petition.