2004 PLP 722 (YLR)

2. Learned counsel of the petitioner submits that respondent issued Notification malafidely and without jurisdiction under the influence of Malik Abdul Qayyum Awan and Malik Sultan Mahmood Awan. He further submits that the land belonged to Punjab Housing Urban Development Engineering Department and the construction as far as house of the petitioner is concerned was wholly constructed with income of the petitioner and by selling house of the petitioner. Therefore, respondent has no lawful authority to issue Notification in question qua property of the petitioner. He further submits that the petitioner filed application under section 145, Cr.P.C. before the Judicial Magistrate, Faisalabad before whom respondent No.3 appeared but did not produce Notification in question and notification in question was issued by respondent No.1 subsequently. Therefore, respondent has no lawful authority to give retrospective effect to the Notification in question. He further submits that Notification in question was not served upon the petitioner till date. He further submits that the respondents have not assumed administration, control and management of the property in question in terms of the impugned Notification dated 17-10-2003.

3. Learned law officer has entered appearance on Court's call. He submits that the writ petition is not maintainable.

4. I have given my anxious consideration to the contentions, of the learned counsel of parties and perused the record.

5. It is admitted fact that petitioner has alternative remedy under section 11 of the aforesaid Ordinance to file petition before the District Judge concerned. Therefore, writ petition is not maintainable in view of the law laid down by the Honourable Supreme Court in Mumtaz Hussain v. Chief Administrator of Auqaf (1976 SCMR 450). The relevant observation is as follows:-- "As the said Ordinance has taken away right of the petitioner to interim relief learned counsel submitted that this was a ground which entitled the petitioner to prosecute a writ petition despite the pendency of the proceedings in the District Court. The argument is misconceived because the writ jurisdiction of the superior Courts cannot be invoked in aid of injustice and in order to defeat the express provisions of the statutory law. " The aforesaid proposition of law is also supported by law laid down by the Honourable Supreme Court in Syed Muhammad Ali Shah Bokhari v. Chief Administrator Auqaf 1972 SCMR

297. It is condition precedent by virtue of Article 199(1) of the Constitution that Constitutional petition is maintainable in case adequate remedy is not provided by law. As mentioned above the petitioner has alternative remedy under the provisions of Punjab Waqf Properties Ordinance, 1979 to file a petition before the District Judge under section 11 of the said Ordinance. Therefore, Constitutional petition is not maintainable in view of the law laid down by the superior 'Courts in the, following judgments:-- Muhammad Ismail's case PLD 1996 SC

246. Mst. Shamim Akhtar's case 1993 MLD

713. Evacuee Trust Property Board's case 1994 CLC 939.

6. In view of what has been discussed above, this writ petition has no merit and the same is dismissed. The petitioner is well within his right to avail proper remedy under the law before the competent Court/competent forum. The competent Court/competent forum is directed to decide the same in accordance with law. With these observations this writ petition is disposed of. H.B.T./J-109/L Petition dismissed.