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Civil Petition for Special Leave to Appeal No. 98‑R of 1976, decided on 10th July 1976.

(On appeal from the order of the Lahore High Court, Lahore, dated the 29th March 1976, in Writ Petition No. 1485 of 1973). '

‑‑‑Ss. 6‑A & 9 read with Constitution of Pakistan (1973), Art. 199‑ Writ jurisdiction‑Injunction‑‑‑r: Ordinance having taken away right to interim relief petitioner claimed to be entitled to prosecute writ petition despite pendency of proceeding‑ in District Court‑Writ jurisdiction, held, cannot be invoked ire aid of injustice and to deflect express provisions of statutory law.‑‑[Injunction‑ Writ].

Sayyed Muhammad Ali Shah Bokhari v The Chief Administrator of Auqaf.

Punjab, Lahore and others 1972 S C M R 29 1 ref. Syed Riaz Ahmad Pirzada Advocate Supreme Court instructed by

Ch. Akhtar Ali, Advocate‑on‑Record for petitioner.

Nemo for Respondents.

Date of hearing: 10th July 1976.

The dispute in this Petition for leave relates to field No. 218 in villager Jhelum of Tehsil and District Jhelum. According to the petitioner, by a notification dated 13‑5‑1973, the first respondent took over this field as waqf property, and on 20-10-1973 he passed an order for the petitioner's eviction under section 6‑A of the West Pakistan Waqf properties Ordinance, 1961 (hereinafter called the said Ordinance). The petitioner, therefore, filed a petition in the District Court under section 7 of the Ordinance for a declaration that the land in dispute was not waqf property, that he was the tenant of this land, that tine notification of 13‑5‑73 was illegal and void and that he was not liable to the ejected. This petition was dismissed as time -barred, and the peti0oner filed an appeal against this order in the Lahore High Court, The petitioner, also filed a writ petition in the Lahore High Court for the quashment of the notification of 13‑5‑1973, and this petition was heard with the petitioner appeal against the order of the District Judge dismissing his, petition under section 7 of the said Ordinance. The learned Single Judge allowed the petitioner's appeal against the District Judge's order and remanded the case to him for a fresh trial. Therefore, relying inter alia on tile fact that the petitioner's petition under section 7 of the said Ordinance was pending in the District Court, Jhelum, the learned Single Judge dismissed the writ petition of the petitioner. Hence this petition for leave.

Mr. Pirzada attempted to argue that the land in dispute was not waqf property. But that is why the petitioner has filed his petition under section 7 of the said Ordinance, and that disputed question of fact will no doubt be decided by the learned District Judge as the petitioner s case has been reman ded to him.' Therefore, this piles was not fit to be entertained in a writ petition.

Mr. Pirzada's second submission was that even if the land in‑ dispute was waqf property, the petitioner was a tenant, therefore, he was entitled to a show, cause notice under section 6‑B of the said Ordinance, and. as the order for his eviction had boon passed without hearing him, the order was void. The learned Single Judge rejected dais contention, because after the admission of the writ petition without prejudice to his rights, the first respondent had heard the petitioner avid rejected his claim after bearing him. In these circumstances the learned Single judge was not impressed by the petitioner objection and the view taken in the judgment is unexceptionable.

Mr. Pirzada's only other submission was that the petition of the peti tioner which is pending in the District Court was not a suitable remedy, because the petitioner was dyed from obtaining interim relief in view of section 9 of the said ordinance. The section reads:

"9. District Court and High Court not to issue temporary injunction or order . . . . . . . Notwithstanding anything to the contrary contained in any other enactment for the time being in force the District Court or the High Court shall not pending disposal of a petition under section 7 or an appeal filed under section 8, have the power to issue a temporary injunction or order restraining the Chief Administrator from taking over assuming the Administration control, management and maintenance of pre party in respect of which a notification hag been issued under section 6."

As the said Ordinance ha taken away the right of the petitioner 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. That was also the view taken by this Court in Sayyed Muhammad Ali Shah Bokhari v. The Chief Administrator of Auqaf, Punjab, Lahore and others (1972 S C M R 297) and we respectfully agree with it.

The petition is without merit and is dismissed.

Petition dismissed.

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