AMIN-UD-DIN KHAN, J. --- Th e brief facts of this case as narrated by learned counsel for the petitioner are that 104-kanals, 02-marlas land situated in Chak No. 4/F Tehsil Chishtian, District Bahawalnagar was allotted to maternal grandfather of petitioner in Abad-Kari Scheme and in the year 1968 Patta-Malkiat was also issued in his favour, on the basis of which Mutation No. 395 was sanctioned on 20.09.1968. The matter in controversy relates to a portion of property situated in square No. 118, Killa No. 1 wherein there is a constructed Mosque.
2. Learned counsel for the petitioner states that in the year 1980-81 the Mosque was constructed by the maternal grandfather of petitioner and it was incorporated in Jamabandi for the year 1980-81, wherein it is mentioned that upon 08-marlas land the Mosque is constructed. Learned counsel states that in Jamabandi for the year 1984-85 this 08-marlas land without any justification was incorporated as 18-marlas. On the move of petitioner, on the basis of report of Assistant Commissioner under the order of Member Board of Revenue dated 12.08.1989, the Mosque was found constructed upon 11-marlas, therefore, the same was corrected in Jamabandi for the year 1988-89. It has been further stated that respondent No. 6 (Maulvi Bashir Ahmad Shad) moved an application for acquisition of land for the Mosque, as the land was in the name of predecessor of petitioner, then the petitioner's grandfather filed writ petition No. 927 of 1989 before this Court, which was accepted vide order dated 02.03.1993 and the land was again entered in the name of predecessor of petitioner. Then respondent No. 6 got registered the Mosque. This registration was challenged by the petitioner in a suit, which was decreed on 23.09.1991 against which an appeal was filed which was dismissed, so the decree of Civil Court became final. Afterwards respondent No. 6 with the connivance of respondent No. 5 moved an application before the District Officer (Revenue) stating therein that in square No. 118 Killa No. 1 there was a Mosque before the allotment of land and conferment of rights in favour of predecessor of petitioner, therefore, to that extent Patta-Malkiat be cancelled. On the basis of that application, the District Officer (Revenue) sent a report to the Secretary (Colonies) recommending that PattaMalkiat be cancelled under Section 30(2) of the Colonization of Government Lands (Punjab) Act (V of 1912) to the extent of land under the Mosque. Learned counsel further stated that through memo. Dated 20.08.2005 the Secretary (Colonies) has sent a letter to the District Officer (Revenue) which is impugned before this Court, the operative part of which is hereby reproduced as under for ready reference:- "The contents of your report have been considered and it has been observed that Khasra No. 1 of Rect No. 118 on which a Mosque has already been constructed cannot be allotted under any scheme.
The Board of Revenue authorize you to delete Khasra No. 1 of Rect. No. 118 from the allotment of Ghulam Muhammad after observing all legal formalities."
Learned counsel for the petitioner states that this memo. Dated 20.08.2005 is without jurisdiction as after the conferment of proprietary rights, allottee is not bound by the conditions applicable as a tenant; that without hearing the petitioner impugned memo. Has been sent which is absolutely against the complete revenue record available with the revenue department as well as the record annexed with this file. Learned counsel has prayed that this memo. Be declared without lawful authority and be quashed.
3. On the other hand, learned Assistant Advocate General has supported the impugned memorandum without advancing any justifiable arguments.
Whereas learned counsel for respondents Nos. 5 and 6 states that there is a factual controversy that whether the Mosque is situated upon 08-marlas or 18-marlas. I am afraid that it is not a matter in issue before this Court. While relying upon ".1984 SCMR 1493 (Mst. Kaniz Begum and others v. Mst. Akbar Jan and another) and 2007 CU 839 (City Council v.
Chief Administrator Auqaf)" learned counsel states that this writ petition is not maintainable as the land which was Waqf as dedicated to the Mosque, cannot be allotted to any person. I am afraid that these contentions also do not relate to the 'ratter in controversy between the parties.
4. I have heard the learned counsel for the parties at full length and scanned the record minutely with their able assistance
5. Learned counsel for the petitioner has referred Jamabandies for the year 1952-53, 1964-65, 1968- 69, 197273 and 1976-77 according to which in square No. 118, Khasra No. 1 which is consisting upon 08-kanals, there is no mention of Mosque In view of this voluminous documentary evidence which has presumption of correctness, it can easily be held that till the year 1976-77 there was no mention of Mosque in the above-mentioned revenue record. The contention of learned counsel for the petitioner that this Mosque was constructed by the predecessor of petitioner seems to be correct, as it is fully supported by revenue record. Moreover, the Member Board of Revenue or the Secretary (Colonies) was having no authority to recommend the District Officer (Revenue) to cancel the land from the name of predecessor of petitioner. In this context, reliance can be placed upon the judgment reported as "2008 SCM R 749 (Pro Voce of Punjab, through District Officer, Toba Tek Singh and others v. Nazir Ahmad and 9 others)." I have observed that it is clear from the admitted record in shape of Jambandies till the year 1976-77, there is no mention of. Mosque over the disputed square No. 118, Khasra No. 1. After that the first time in the Jamabandi for the year 198081 there is mention of the Mosque over the area of square No. 118 and it is the case of petitioner that his predecessor constructed the Mosque. The petitioner also does not want to remove or demolish the Mosque and he has also not claimed any more land in lieu thereof. The application moved by respondent No. 5 was not maintainable. The matter actually seems to be that of administration of the Mosque. On the basis of case-law referred to by learned counsel for the petitioner, I am clear in my mind that when Patta-Malkiat has been given to a person, after that under Section 30(2) of the Colonization of Government Lands (Punjab) Act (V of 1912) the Member Board of Revenue or the Secretary (Colonies) has no authority to cancel a portion of land from the ownership of allottee. Further, it is also not denied that the order has been passed on the move of respondent No. 5 without even giving notice to the petitioner or hearing him. Therefore, the impugned memo. Issued by the Member Board of Revenue dated 20.08.2005 is bad in law in that scope, which is hereby declared without lawful authority.
6. For the foregoing reasons, this writ petition is allowed in the above terms.