' MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioners claiming themselves to be "MOEENS" are in possession of land measuring 32 kanals, situated in Chak No,2/4L Tehsil and District Okara.
(hereinafter referred to as Suit-Land).
2. Vide order dated 29-10-2002 District Officer (Revenue) Okara resumed suit-land from petitioners for establishing a graveyard for facilitating different housing colonies. The petitioners assailed order dated 29-10-2002 before EDOR who dismissed the appeal on 18-3-2003, revision against the order also failed on 7-8-2004, hence the present petition.
3. Learned counsel for petitioners submits that petitioners' forefathers were allotted suit land as Moeens in 1842, they are cultivating the land and are in its physical possession and as such they have acquired valuable rights in the land and are entitled for its transfer under different government schemes for the grant, of proprietary rights. Learned counsel submits that a big graveyard exists in Chak No,2/4L, but to dispossess the petitioners, the owners of houses in different housing colonies with the collusion of revenue officials hatched a conspiracy against the petitioners and wanted to create a graveyard on the suit-land, they have procured the impugned orders by exerting political influence in violation of petitioners rights in suit land. Learned counsel relies on letter dated 15-1-1980 from Board of Revenue, Punjab, the land in possession of petitioner is scheduled land reserved for Moeens and could not be de-scheduled without permission by Board of Revenue. The impugned, order is hit by Punjab Delegation Rules 2006. Learned counsel relies on Shafique Ahmad and others v. Muhammad Akbar and others (2001 CLC 340), Ghulam Sarwar and others v. Member (Colonies) and others (1996 SCM R 1379) and Muhammad Rafiq and others v. Hashmat Ali and another (PLD 1992 SC 37) Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another (2007 SCM R 1240).
' Learned counsel finally adds that in case it is necessary that land be resumed from petitioners for public purpose alternate land be allotted to meet the ends of their livelihood.
4. Learned counsel for respondents submits that Punjab Delegation Rules, 2006 are not applicable to petitioner case, as the impugned order was passed in 2002 and the application of above Rules are not retrospective. He further submits that Collector is enjoying powers to amend or change the schedule of lands, the petitioners have filed civil suit two years ago but failed to get the restraining order. Lastly adds that all the occupants/Moeens have not assailed the impugned order, the petitioners are not cultivating the land as the same is now urban land being the part of city and as such the status of Moeens is no more in existence and further suit land has been resumed in public interest and part of suit land is being used as graveyard, 8 to 10 graves have already been established in the suit land.
' Learned Law Officer has objected the very maintainability of petition and adopted the arguments of private respondents.
5. Heard, record perused.
6. The possession of petitioners along with others are admitted between the parties. The respondents are the owners of their respective plots in housing societies namely Raheem Karim Town, Darul Ihsan Town, Ghulshan Town, Qadeer Town and Fareedabad Colony and so many other housing societies have been established in the City of Okara near the land in dispute. It is an admitted fact that suit-land is the part of Chak No,2/4L and a big and old graveyard is situated in the village, the respondents claim that residents of Chak No,2/4L are not allowing them to bury their dead bodies in the established graveyard and in their housing colonies there is no graveyard, the Government of Punjab thus is bound to provide the residents of newly established colonies the land for graveyard, the land in possession o$ petitioners being Moeens was rightly resumed for establishing the second graveyard.
7. The status and organization of Moeens in land settlement in Punjab is not denied. Land to Moeens is regulated under Para 322(c) of the Colony Manual, para 322(c) which reads as under:-- - "The necessity of making provision for village servants, whether religious or secular, was early recognized by government, and, in as much as no satisfactory arrangements by the grantees were possible, the Colonization Officer was permitted to grant on an annual lease to the headmen of each village land up to a maximum limit of two squares, with the understanding that the lease would be allowed to run on so long as they sublet the land village servants, and the relations between those servants and the zamindars continued to be satisfactory."
8. On the basis of above said colony manual para, the Member Board of Revenue decided that colonization officer used to allow annual lease of land to Headman of each village, with the understanding, that the Headman will sublet the land to village servants (Moeens) for keeping the relationship of Government with Zamindar/Landowner/ grantee cordial and trouble free.
Admittedly petitioners and other occupants of suit land are Moeens since their forefathers and still are growing the crops as per report of revenue officials.
' Learned Law Officer is unable to deny the fact that suit land is part of Chak No,2/4L (Village) Okara, the chak still exists in the revenue record, the said chak has an independent graveyard and a lumberdar. However, some of the Land owners/grantees have established Housing colonies by converting their land from agriculture to urban, although it is not established on record whether the following housing colonies were constructed with the permission of concerned official according to law but for the purpose of judgment it is presumed that the then efficient and responsible Government officials, have given permission to land owners to change the character of land from agriculture to urban and to establish housing colony. It is also presumed while allowing permission to land owners for establishing housing colonies it was ensured that landowner will provide all civic amenities in the colony including graveyard.
9. I am presuming these facts as no housing colony could be established without the permission of concerned department, established for this purpose. It is in the above circumstances it has to be seen whether the residents of these housing colonies are entitled for the basic amenity of graveyard and Management/owners of land of Housing Colonies have if sold the land earmarked for graveyard, is the respondent Government is duty bound to provide the valuable urban land for graveyard? Is the provision of above facility is covered under Public Interest concept?
10. The above said fact was argued before District Officer Okara in the following manner:--- {{URDU TEXT}} ' The first impugned order was passed on 29-10-2002. It is interesting to note that, the District Officer after coming to know that housing colonies have not provided civic amenities, he closed his eyes and being a responsible government official simply decided to utilize 32-kanals government land in possession of poor peoples of country to establish a graveyard by snatching, bread and butter of alive human being/citizen of country for providing shelter to dead person who otherwise became irrelevant for mankind and society. The appellate court as well as the Member Board of Revenue has not considered this important factor of non-providing the basic amenities in the colonies. The respondents officials on coming to know the fact that Zamindars/ Landowners have established the housing colonies against law and they have encashed every inch of their land for their personal benefit, they should have taken the remedial measures against the landowners/ Zamindars but instead of proceedings against concerned persons according to law, but they all shut their eyes donated generously the Government land to fraudulent sellers of land without taking into consideration the fraudulent and illegal acts of land owners. The said act of Government Officials shows that they instead of considering themselves the custodian of public property considered it their personal right according to their whims.
12. The respondents Nos.1 to 3 being the Government functionaries acting in the affairs of state have no power to cause loss to State and to help the fraudulent persons but the impugned orders passed by the Government functionaries show that they have not performed their duties according to law, they failed to safeguard the interest of State as well the poor occupants of suit- land and as such their illegal acts are amendable to constitutional jurisdiction of this Court and this Court has the jurisdiction to take cognizance of the illegalities committed by the functionaries of the Government.
13. The second argument of learned Law Officer that subject matter of petition is a question of fact which could be resolved by recording of evidence and as such petition is not maintainable, is concerned, the facts of dispute are clear, sufficient material is available on record which shows that issue could be resolved even without recording evidence; for example, the land in dispute is in possession of petitioners being Moeens since their forefathers, the main chak is still in existence, the graveyard is available in main chak, the housing colonies have been established against law, hence the said argument is repelled.
14. It is an admitted fact between the parties that land in possession of petitioners is reserved land for Moeens of the village. The respondent No,1 has declared that as the land now falls in urban area of Okara, as such, it should be taken back from the Moeens. This fact is not proved on record, when the village was created, the land for graveyard and other amenities were earmarked, the reports of revenue official and orders of respondents No,1 established that chak/village still exist, only some portion of chak become part of urban area, some of the landowners have illegally established housing colonies, this does not mean the chak/village has been eliminated, the land reserved for Moeens could not be de-scheduled till the existence of village/chak. The respondent No,1 has failed to appreciate that Moeens were the most important part of the scheme for establishing new villages, the then Government had given different incentives for creation of new cultivating area in the province, the old revenue record will show that when the then British Government decided to establish new "BARS" (Villages), they provided each and every facility to the agriculturalist for shifting in the proposed BAR, In Muslim dominating village even the land for Imam Masjid was reserved. In the present case, the land in possession of petitioner is reserved for Moeens who are Cobblers, Barbers, Carpainters, Blacksmith, etc and are village servants.
15. Admittedly the petitioners' forefathers were allotted the land in dispute, they have served the cause of the State and helped the State for establishing new villages (BARS) and remained the active part for bringing the barren land into cultivation, hence equity demands that Moeens should be compensated in case the States intends to change the character of land from agriculture to urban. Constitution of Islamic Republic, of Pakistan, provides that every citizen is equal before law and enjoy equal rights. Islam the Stale religion provides that in law the Moeens and landowner/Zamindar enjoy equal rights. If the land to temporary cultivators could be transferred permanently after some time why not the Moeens.
16. The resumption of land from Moeens in their possession is a violation of Constitution of Islamic Republic of Pakistan, which could not be allowed.
' The upshot of the above discussion is that impugned orders dated 29-10-2002, 18-3-2003 and 7- 8-2004 are set aside and declared without lawful authority. The Senior Member Board of Revenue will constitute a facts finding committee headed by Member Board of Revenue to fix the responsibility of officials who allowed the housing colonies, to be established without providing the necessary civic amenities, The Committee will submit his report to Deputy Registrar (Judicial) of this Court within three months of the order.
' Office is directed to send the copy of judgment to Chief Secretary Punjab for compliance.
17. The petition is allowed in the above said terms.