' MUHAMMAD KHALID ALVI, J.--- With the concurrence of learned counsel for the parties this case is being treated as a Pacca case.
2. Brief facts of the case are that property in dispute which undoubtedly is a "Nazool" land is in the use of respondent No,5 which has succeeded the old Municipal Corporation, Multan since 1948. In the year 1982 a "W" shape market was constructed at the site and was leased out by respondent No,5 to various lessees. Thereafter, on 17-6-1999 under a decision taken by the Provincial Cabinet and orders passed by the Chief Minister of the Province, the property in dispute along with other properties was placed at the disposal of respondent No,5 for its sale for the purpose of rehabilitation of roads from its sale proceed but this order was recalled on 30-10-1999. However, the property remained in the use of respondent No,5 even thereafter up to date. The old market was demolished by respondent No,5 and a new market in "U" shape was planned to be constructed for which the lease was given to the petitioner which was approved by the Local Council. Petitioner started work of construction. In the meanwhile, impugned letter, dated 8-4-2008 was issued by respondent No,2 to respondent No,3 directing him to stop construction at the site. This letter is being assailed through the instant constitutional petition.
3. It is contended by the learned counsel for the petitioner that the land in dispute is undoubtedly a "Nazool" land being managed by respondent No,5 for the last about 60 years on which a shopping market was in existence since 1982 which was demolished and is to be reconstructed. If the Government wants to reallocate or to divest title of the property then consent of the Local Government is mandatory in view of subsection (4) of section 121 of the Punjab Local Government Ordinance, 2001. It is further added that through letter, dated 17-6-1999 the land in dispute was transferred by the Chief Minister under a decision taken by the Cabinet although its sale was subsequently stopped but the transfer remains intact.
4. Learned Additional Advocate-General contends that under section 122 of the Ordinance the Government retains the authority with regard to the "Nazool" land. It is further submitted with reference to section 132(d) that if any dispute arises between a Department of Government and the District Government then the matter is to be brought before the Provincial Local Government Commission, therefore, this petition is not competent as alternate remedy is available. It is further submitted that the question involved also relates to disputed questions of fact, inasmuch as, the exact location and boundaries of the site are disputed. It is also submitted that petitioner being a lessee of respondent No,5 has no locus standi to bring this petition.
5. The case was taken up before break and the learned Law Officer was directed to have instructions from the concerned quarters as to what is the object of the Government for further utilization of the land in dispute. He states that he had talked to Mr. Najam Saeed, Member Colonies on telephone and was informed that the site in question is now proposed to be included in Misali Darsgah which is already in existence for the establishment of Sheikh Rasheed Government Degree College for Girls.
6. Learned counsel for respondent No,5 has adopted the arguments of the learned counsel for the petitioner.
7. I have considered the arguments of the learned counsel for the parties.
8. Undoubtedly, the property in dispute is "Nazool" land and is being used by respondent No,5 since 1948 for different purposes; at one point of time it was used as a "Tanga Stand" for decades and thereafter it was converted to a market in the year 1982 which now stands demolished and a new market/plaza is scheduled to be erected. This property of the Government is undoubtedly in possession and use of the Local Council since 1948. Under subsection (2) of section 121 of properties of the Government in possession of the Local Councils established under the Punjab Local Government Ordinance, 1979 shall pass on to the successor i,e, the present Local Governments, therefore, under subsection (4) of section 121 if the Government wants to reallocate some property then it is mandatory that it shall have prior consent of the Local Government concerned. As is disclosed by the learned Law Officer, the site in dispute is required to be re-allocated for the establishment of a Girls Degree College then instead of going into controversy with respondent No,5, it should have sought consent of respondent No,5 for the purpose for which it is being planned.
9. Under clause (d) of section 132 of the Ordinance it is for the aggrieved party i,e, either a Department of Government or the District Government to approach before the Provincial Local Government Commission. A private person has no authority to approach the said Commission. In the instant case even the Government of Punjab who is aggrieved of the action taken by respondent No,5 with regard to the property in dispute can approach the said Commission for redressal of this grievance.
10. Under section 122 of the Ordinance there is no doubt that the Government can transfer "Nazool" and "Auqaf" lands or other Government properties for administration to the Local Government but retains lien with the same. So far as disputed question with regard to exactitude of the measurement of the site is concerned is not required by this Court to be resolved because the decision is being taken on legal premises. In the circumstances, this writ petition is allowed. Order, dated 8-4-2008 is declared to be illegal and without lawful authority. However, Government, if so advised, may approach the Provincial Local Government Commission or if thought appropriate may negotiate with respondent No,5 for reallocation of the land in dispute in the public interest.