ORDER CH. MUHAMMAD TARIQ, J. Precisely stated the cause of action as stated in the instant writ petition is that the petitioner belongs to religious Sayed family. Petitioner is ex-member of Graveyard Committee from 1985 to 2005. During this period, petitioner as member of committee performed his duties with heart and soul, therefore, no one can raise any objection on petitioner's character. Petitioner's all relatives who have expired are buried in Miani Sahib Graveyard. The petitioner has come to know through the Committee members of the Miani Sahib Graveyard that Lahore Development Authority is trying to occupying the area of Miani Sahib Graveyard and the graves and tombs (Mazar Sharit) of "Sayed Pir Bukhari" and "Bauji Sarkar" will be demolished soon.
2. The petitioner approached the Lahore Development Authority and came to know that a registered sale-deed of "Miani Sahib Graveyard" measuring 3 kanals and 18 marlas has been made by Secretary of Government of Punjab Colonies Department through District Officer (Revenue)/Collector, Lahore in favour of Director-General Lahore Development Authority through Director Estate Management, Lahore Development Authority, bearing Kbasra Nos.6653 and 6643, Documents No.1399, Book No.1, Volume No.1264 on 15-3-2007.
3. After receiving the copy of registered sale-deed and attested copy of order dated 22-2-9005 of Board of Revenue, Punjab bearing No.413-2005- CS(V), the petitioner moved an application for the redressal of the grievance to the Chairman committee of Miani Shaib but no proper reply was given by the Chairman Committee. However, after some days the Assistant Security Officer Sayed Safar Shah stated through a newspaper "daily Awaz" that some land mafia had illegally occupied the graveyard land and Miani Sahib Graveyard Committee has failed to restrain them from occupying the land of the graveyard.
4. The petitioner is the "Mureed" of Syed Pir Bukhari and Bauji Sarkar. The tombs of Sayed Pir Bukhari and Bauji Sarkar are situated in Chauburji side and the petitioner celebrate the annual "Urses Mubarak" of Sayed Pir Bukhari with heart and soul according to the Islamic calendar on 22 and 23 of Shaban.
5. Learned counsel for the petitioner contends that the relevant authorities are clearly disobeying the Punjab Graveyards (Preservation and Maintenance) Act, 1958 and the Miani Sahib Graveyard Ordinance, 1962 (W.P. Ordinance XLIV of 1962) which determines the boundary walls of the Miani Sahib Graveyard. He avers that the order dated 22-2-2005 passed by Colonies. Sale Department (CS-V), Board of Revenue, Lahore is not warranted under the law and is liable to be' set aside.
Learned counsel for the petitioner has raised following legal issues:--
6. Whether any department or 7. Authority can go against the general Islamic principle that "once wakf is always a wakf'?
8. Whether any department or 9. Authority has power to acquire the wakf property for other purposes?
10. Whether any department or authority has power to sell the wakf property against the law?
11. -(iv) Whether any department or authority can negate Islamic injunctions for their personal benefits?
(v) Does this matter is not in the ambit of great public interest for the people of Pakistan?
6. Learned counsel for the petitioner has emphasized more that Plots Nos.4, 55, 56 and 58 allotted by Lahore Development Authority are part of Khasra Nos. 4445, 4546, 4547, 4548 and 6606, situated. In Mauza Mozang which are part of property of Miani Sahib Graveyard. In fact Khasra Numbers mentioned hereinabove are forged khasra numbers which do not exist in Revenue Record and the above khasra numbers have been prepared by the concerned authorities just to grab the land of Miani Sahib Graveyard. Actually, khasra numbers are 6643 and 6653 is the property of Miani Sahib Graveyard as declared in press note issued by Martial Law Authorities vide Martial Law Order dated 31-5-1962 and section 13 of Miani Sahib Graveyard Act, 1958 and Miani Sahib Graveyard Ordinance, 1962.
7. Learned counsel for the petitioner has relied on various judgments passed by this Court at various times and has concluded that a direction be issued to remove all the encroachments made upon property of Miani Sahib Graveyard. Learned counsel has further relied upon the demarcation report conducted by Najam Saeed. Member (Colonies), Board of Revenue, Punjab, Lahore on the direction of this Court in Writ Petition No. 583 of 2009 and Writ Petition No.584 of 2009: The relevant portion of demarcation report is reproduced hereunder: -- "As directed by this honourable Court on 24-2-2009, I visited the site of Khasra Nos.6592 and 6593 on 24-2-2009 and 25-2-2009. Area of Khasra No.6592 is 5 kanals, 14 marlas 58 Sq. Ft and Khasra No.6593 is 3 kanals 9 marlas 5 Sq. Ft. Both the above mentioned IChasra numbers have been included in the schedule of Miani Sahib Graveyard as "Min" numbers. As area and specific location of these Min numbers have not been given in the schedule, constructions raised on these Khasra numbers was shown in red in the computerized map of F-Block of Miani Sahib Graveyard. However, in the press note entire Khasra No.6593 has been included in Miani Sahib Graveyard.
(2) It appeared that subsequently, both these Khasra numbers were acquired by the Lahore Development Authority. Plots created on part of these Khasra numbers are shown at Annex 'A' .
However, the construction at site is not according to the plots created by the Lahore Development Authority. Detail of construction at site is at Annex 'B'
The following persons present at site were heard:-- Ch. Muhammad Najeeb son of Ch. Muhammad Latif on behalf of Messrs Javaid Babar, Karim Bakhsh.
Abdul Hameed, Proprietor Summit Engineers.
Mr. Akraam Mali, 11 -Rustam Park, Multan Road, Lahore.
(4) Mr. Abdul Hameed contended that possession of Summit Engineers shown by LDA at Khasra Nos.6606 to 6610 was partly wrong. He claims possession on Khasra Nos.6592/2 and 6593/1 which belongs to Central Government. His civil suit is pending in the court of Mr. Sohail Shafique, Civil Judge, Lahore and next date of hearing is fixed for 8-4-2009. Another application is pending before the. District Collector for exclusion of said khasra numbers from the proceedings being, evacuee property in respect of which exclusive jurisdiction lies with Custodian/Settlement and Rehabilitation Department.
(5) Ch. Muhammad Najeeb son of Ch. Muhammad Latif represented Javaid Babar, Karim Bukhsh etc. Writ Petitions Nos.583 of 2009 and 584 of 2009). He contended that Plots Nos.4, 55 and 56 were allotted to Mehar Zia-ud-Din son of Mehar Rahhim Bukhsh which were subsequently transferred to Javaid Babar. These plots were exempted in lieu of land in Khasra Nos. 4445, 4546, 4547, 4548 and 6606 Mauza Mozang (Annex-C). Subsequently, Plot No.58 was also transferred to Mr. Muhammad Javaid Babar (Annex-D).
(6) Mr. Ikram Malik R/0 11-Rustam Park, Multan Road, produced a copy of sanction order of Chairman, Miani Sahib Graveyard Committee dated 27-9-1962 under which 7 marla 35 Sq.Ft. From Miani Sahib Graveyard was given to Mehar Khuda Bukhsh on payment of Rs.3,500 only On this piece of land presently Mr. Najeeb has set up a workshop (Annex- E).
(7) After visiting the site and hearing the above said persons my observations are as under:--
(a) LDA was not justified in acquiring Khasra Nos. 6592 and 6593 as they Were included in the schedule. Unless and until the area of these Min Khasra numbers was finally determined, LDA could have not created plots on the land of these khasra numbers. Acquisition of Khasra Nos.6592 and 6593 by the LDA and creation of plots thereon and allotment of Plot No.58 to Javaid Babar has to be explained by LDA.
(b) According to Mutation No.3380 dated 9-2-1962 (,Annex-F) total Khasra No.6593 measuring 3 kanals 9 marlas and 5 Sq. Ft. Was transferred in favour of Central Government and out of Khasra No.6592, 4-Kanals were transferred in favour of Central government.
(c) Perusal of Mutation No.4686 (Annex-G) reveals that the said mutation was entered on the basis of letter No.HGS-76/6 dated 31-1-1976 from the Chairman Miani Sahib Graveyard Committee, Lahore. Khasra Nos.6592 and 6593 were entered 'Salim' but subsequently the Revenue Officer on the objection of Mr. Zain-ud-Din Ahmad reduced the area to be transferred to 'the Miani Sahib Graveyard from 3 Kanals 9 Marlas 5-Sq.Ft. To 1 Kanal 10 Marlas and 25 Sq.Ft. And Khasra Nos. 6592 from 5 kanals 14 marlas 58 Sq. Ft. To 4 kanals 5 marlas 212 Sq.Ft. Under the law the final area was to be determined by a notification under section 4(2) by the Miani Sahib Graveyard Committee and not by the Revenue Officer.
(d) After issuance of said Ordinance 1962 Miani Sahib Graveyard Committee on 29-9-1962 transferred 15 ft. Path measuring 7 marlas and 36 Sq. Ft. From Miani Sahib Graveyard to Mehar Khuda Bukhsh for consideration of Rs.3,500 which also has been done in violation of the said Ordinance.
Workshop constructed by Ch. Muhammad Najeeb on this .15 ft. Path is illegal.
(e) Mr. Abdul Hameed has no ownership documents and he is occupying the land on the basis of litigation and status quo."
8. Learned counsel for the petitioner has prayed that the order dated 22-2-2005 passed by respondent No.1 be set aside and sale-deed in. Respect of sale of Khasra Nos.6643 and 6653 situated in Mauza Mozang Lahore Cantt. District Lahore be annulled.
9. During the course of arguments, Mr. Saeed-uz-Zafar Khawaja counsel for Javed Babar son of Karim Bakhsh (applicant of C.M. No.864 of 2009) has pointed out that he has moved a Civil Miscellaneous Application No.864 of 2009 praying that the applicant in the said C.M. Be impleaded as a party in the writ petition because he is owner of the land as they- land owned by his forefathers in Mouza Mozang was acquired by the Lahore Improvement Trust and in lieu thereof, the petitioners were transferred 4 plots measuring 4 kanals and 5 marlas bearing Plots Nos.69, 70, 71 and 72 in a scheme known as Chauburji Development Scheme which was developed by the Lahore Improvement Trust, the predecessor-in-interest of Lahore Development Authority.
Subsequently the Lahore Development Authority in accordance with its on scheme renumbered the plots and presently the petitioner is the owner in possession of Plots Nos.4, 55, 56 and 58 situated in Chauburji Scheme Lahore. The aforesaid plots have been incorporated in the Revenue Record vide order dated 7-9-2001 by the order of Board of Revenue. Learned counsel for the applicant further argues that the Secretary Miani 'Sahib Graveyard for ulterior motives raised a false claim to the property of the applicant; on account of which the applicant was constrained to file a suit for declaration in the Court of Senior Civil Judge, Lahore wherein the learned Civil Judge vide order dated 25-8-2008 directed that the defendants therein are not entitled to interfere in the possession of the applicant. Learned counsel argues that till date no competent authority has passed any order for demolition of the property of the applicant wherein construction was raised more than fifty years ago and the applicant is enjoying all utility services from Public Sector Organizations. Admittedly, the property of the applicant does not form part of the controversy in the subject writ petition, as such no proceedings can be initiated before this Court. Besides the High Court has no suo motu jurisdiction. He has placed reliance on 1991 SCM R 320, PLD 1998 SC 161, and 2001 YLR 4203.
10. Learned counsel for the applicant further contends that the judicial hierarchy cannot assume the jurisdiction of local authority as it would amount to trespassing the jurisdiction of the local authority. He avers that till date no order has been passed by the local authority holding the petitioner to be an encroacher. Thus the respondents in the writ petition has no jurisdiction to initiate any proceedings against he applicant unless a written order is passed.
11. Learned counsel for the applicant further contends that as the competent civil Court has already passed an order directing maintenance of status quo against the respondents in this writ petition, they cannot under the garb of these proceedings violate the order passed by competent civil court of plenary jurisdiction. Learned counsel for the applicant has argued that as per site plan and part plan provided by Lahore Development Authority, the property of the applicant is outside the boundary wall of the Miani Sahib Graveyard, besides plots transferred to the petitioner bear Khasra Nos.4545, 4547, 4548, 6606. He contends 'that the Miani Sahib Graveyard Committee is not entitled to interfere in the possession of the applicant. The petitioner is a necessary and proper party and no effective decree or order could be passed unless the petitioner is impleaded in the writ petition.
He further contends that the applicant has neither been impleaded as a party nor it has been held against the applicant of C.M. No.864 of 2009 that he is encroacher but still with main fide intention, the administration committee of Miani Sahib Graveyard intends to demolish the valuable properties of the applicant which is not warranted under the law, therefore, the C.M. No.864 of 2009 be allowed and the applicant of the C.M. Be impleaded as a party.
12. Learned counsel for the applicants in C.M. No. 2908 of 2008 has contended that in pursuance of order dated 11-11-2008 in I.C.A. No.320 of 2008, passed by the Hon'ble Division Bench of this Court, the applicants seeks their impleadment being necessary and proper parties as their presence before this Hon'ble Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in this case. He prays that the applicants Javaid Iqbal, Muhammad Ishaque, Muhammad Ijaz, Basharat Ali, Muhammad Asif and Wasim Sharif be impleaded in the case.
13. I have heard the arguments put forth by learned counsel for the parties and have also gone through the record with their able assistance.
14. During the course of arguments, on a query raised by this Court, learned counsel for the petitioners frankly admitted that he doesn't have the copy of impugned order dated 22-2-2005. He further admitted that the petitioner has not challenged at any forum the status of Khasra numbers 4445, 4546, 4547, 4548 and 6606, situated in Mauza Mozang.
15. Learned counsel for the petitioner has also conceded that Javed Babar son of Karim Bukhsh (applicant of C.M. No.864 of 2009) was not impleaded as a party in the writ petition and has confined his arguments mainly to the report of demarcation mentioned hereinabove.
16. On the other hand, learned counsel for the applicant Javed Babar has frankly admitted that he has no objection if this writ petition is allowed and sale-deed whereby Khasra numbers 6643 and 6653 were transferred is cancelled. He asserts that he is the owner in possession of Plots Nos. 54, 55, 56 and 58 which are situated in Chauberji Housing Scheme Lahore and it was established by Lahore Development Authority Lahore which is not part of land comprising of Miani Sahib Graveyard. The perusal of demarcation report reveals that it is an incomplete report which does not discloses whether khasra numbers claimed by applicant Javed Babar are the part of Miani Sahib Graveyard or these khasra numbers situate outside the land reserved for Miani Sahib Graveyard.
17. Record further reveals that dispute between the parties is simply to determine the boundaries of their properties and to establish as to whether Javed Babar applicant has made encroachment upon the land belonging to Miani Sahib Graveyard or it is independent land whereupon the Lahore Development Authority established Chauberji Housing Scheme Lahore.
18. As a consequence of above discussion, petition is allowed, Sale-deed No.1399 dated 15-3-2007 in favour of Director-General Lahore Development Authority is set aside and in order to resolve controversies, 1 remand this case to Senior Member Board of. Revenue Punjab Lahore with the direction to depute experienced revenue officers and direct them to resolve following controversies:
(i) whether Plots Nos.4, 55, 56 and 58 situate in Chauberji Housing Scheme Lahore are part of land reserved for Miani Sahib Graveyard.
(ii) Whether Khasra numbers 4545; 4547, 4548, 6606, situate in Mauza Mozang Lahore or they are forged and fabricated khasra numbers or these are genuine and part of revenue record which have no nexus with the land of Miani Sahib Graveyard.
(iii) Whether Chauberji Housing Scheme has been launched as a result of encroachment upon the land of Miani Sahib Graveyard or it has been established on a land which is not part of Miani Sahib Graveyard.
19. Learned Member Board of Revenue is also directed to do the needful expeditiously preferably within 8 weeks from the receipt of this Order. Meanwhile, no adverse order be passed and no coercive method be adopted against the residents of Chauberji Housing Scheme. Learned Member Board of Revenue is further directed that the demarcation be conducted in a transparent manner after service of notices upon all the concerned. Disposed of.
20. In the light of above, C.Ms. Nos.1 of 2007, 2908 of 2008, 2688 of 2009, 752 of 2009, 698 of 2009, 864 of 2009, 865 of 2009, 583 of 2009, 584 of 2009, 2193 of 2008, 3149 of 2009, 3225 of 2009 and 3226 of 2009 also stand disposed of.