' SHUJAAT ALI KHAN, J.--- By means of this writ petition, the petitioners, being President and General Secretary of Jamia Masjid Jamiat-ul-Quresh, Lytton Road, Lahore (hereinafter to be referred as 'the Mosque'), have challenged the act of respondents towards demolition of shops situated at Chouburji Development Scheme, Old Rifle Range Side, Lahore.
2. The facts, as spelt out in this petition, are that the respondents/ government functionaries, with a view to widen the Lytton Road, Lahore acquired certain area. In the said process, land measuring 8625 Square feet of the Mosque (including shops) was also taken over through private negotiations which ultimately culminated into an agreement dated 29-11-1994. In terms of said agreement, the respondents undertook to give possession of eight shops in addition to cash compensation of Rs,7,54,114 to the petitioners. The Chief Minister of the Province, in the capacity of the Chairman, Lahore Development Authority, Lahore, allotted eight shops to the petitioners at Chouburji Development Scheme, Old Rifle Range Side, Lahore in lieu of their above mentioned land acquired for expansion of Lytton Road. Accordingly, the possession of said shops was handed over to the petitioners who rented them out to different persons and the rental income was being used to meet with the expenses of the Mosque and its adjacent Maddrassa. On 24-6-1998, the respondents demolished the shops of the petitioners at Chouburji Development Scheme, Old Rifle Range Side, Lahore for expansion of drain. The petitioners, being aggrieved of the act of demolition of shops have filed the instant petition.
3. During pendency of this writ petition, on 16-5-2006, one Ms. Bushra Sultan, Deputy Director, Lahore Development Authority, Lahore, entered appearance and stated that as funds to compensate the affectees, whose land was acquired for expansion of drain, had been earmarked, the petitioners would be accommodated accordingly. On her statement, this petition was disposed of with the observation that if the petitioners grievance remained un-attended, they would be at liberty to move for reactivation of the same. As the petitioners were not accommodated as per undertaking given by the above named government functionary, they moved an application for resurrection of the writ petition which was allowed. Again on 27-2-2007, learned counsel for the respondents-LDA, while placing on record copy of a sale deed, stated that with a view to accommodate the persons, who were evicted at the time of widening of drain, land had been purchased by the LDA. Further, one Ahmad Mumtaz Ali, Deputy Director Estate Management, Lahore Development Authority, Lahore also appeared before the Court on the said date and assured that on the completion of sale deed, the grievance of the petitioners would be redressed. In view of statement of the representative of LDA coupled with the fact that copy of the sale deed was produced in the court, the petition was again disposed of through order dated 27-2-2007 with the observation that in case of nonresidual of their grievance, the petitioners would move for reactivation of the same. As no development took place in the matter, the petitioners again filed an application for resurrection of the petition which was allowed and the same was put up for hearing.
4. Learned counsel for the petitioners submits that the shops, subject-matter of the instant petition, were allotted against the land used by the respondents for widening of Lytton Road, thus, the petitioners are entitled for allotment of alternate land in lieu of the shops demolished by the respondents; that the shops in question, were demolished in the year 1998 and since then the petitioners are knocking at the doors of different authorities to get the alternate land but in vain; that no notice was given to the petitioners prior to demolition of the shops owned by the Mosque; that the executive authorities cannot be allowed to utilize the properties of the individuals or religious institutions for the projects of public welfare without adopting the due course; that act of the respondents smacks sheer mala fide on their part; that though the matter was taken up by the Chief Minister of the Province but the respondents have not made any serious effort to act upon the direction issued by the said authority and that in case this petition is not accepted, petitioners as well as the other inhabitants of the vicinity would suffer a lot as they are facing difficulty to raise funds for maintenance and running the affairs of the Mosque as well as attached Maddrassa.
5. Learned counsel representing the respondents-LDA states that though no commitment was made by the LDA authorities to the petitioners for allotment of alternate shops but even then to show their bona fide, they have already deposited a sum of Rs,3.6 Million which is lying with the Board of Revenue since the year 2006; that after deposit of the amount of consideration for purchase of land, LDA authorities cannot be held responsible for any delay towards the allotment of the alternate land; that the shops were situated on the banks of drain which, in no way, were owned by the Mosque thus there was no question of compensation; that an encroacher on government land cannot claim any sort of compensation as a right; that as no award was announced, the petitioners are not entitled to any compensation; that against the land used by the LDA authorities for expansion of Lytton Road, the possession of shops was handed over to the petitioners and for any subsequent episode, LDA authorities are not responsible and that till the purchase of land by the LDA authorities, the petitioners cannot be accommodated by way of allotment of alternate land.
6. Learned Assistant Advocate General states that as the petitioners have challenged the act of demolition of the shops of the Mosque, they cannot go beyond the prayer clause thereof by claiming that they be allotted alternate land; that the matter as to whether the petitioners are entitled for alternate shops cannot be decided without recording of evidence and for the purpose, the petitioners will have to approach the court of competent jurisdiction; that the matter, in pith and substance, is between the petitioners and the LDA; that upon deposit of Rs,3.6 Million by the LDA, sale deed was got registered in favour of LDA as document No,1399, Bahi No,12, Book No,1262, dated 15-3-2007, with the Sub-Registrar Data Ganj Bakhsh Town, Lahore, but possession of the said land could not be handed over to the petitioners due to institution of different proceedings by the inhabitants of the area on the ground that the said land being part of graveyard, Miani Sahib, could not be transferred in favour of LDA; that according to the instructions imparted by the Member (Colonies) Board of Revenue, Lahore, no Nazool Land is available at present for allotment to the petitioners.
7. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that since the petitioners were allotted shops in question against the land owned by the Mosque which was used by the LDA authorities for widening of Lyton Road, the possession of the petitioners thereon cannot be dubbed as encroachment; that as neither any award was announced nor private negotiations were undertaken by the respondents prior to the demolition of shops, the petitioners could not move to the authorities concerned for compensation thereof or allotment of alternate land; that the government functionaries cannot be allowed to play havoc with the individuals while misusing their official powers.
8. At the conclusion of the arguments, Member (Colonies) Board of Revenue, Punjab, Lahore reaffirmed that according to the instructions imparted to him by the Additional District Collector, Lahore, no Nazool Land is available for sale to the LDA for allotment of same to the petitioners.
9. I have heard the learned counsel for the parties as well as learned Member (Colonies) Board of Revenue, Punjab, Lahore at considerable length in addition to going through the documents annexed with this petition in particular, the orders of this Court referred supra.
10. Before delving deep into the merits of the case, I deem it expedient to observe that vide order dated 10-4-2015, Senior Member Board of Revenue Punjab, Lahore, as well as Director-General, Lahore Development Authority, Lahore, were directed to appear in person to facilitate the adjudication of the /is in hand but today, Member (Colonies) Board of Revenue, Punjab, Lahore, states that as the Senior Member Board of Revenue is engaged in some other official work, he is not in a position to appear before this Court whereas learned counsel representing the respondent- LDA submits that he was not aware about any order of this Court regarding personal appearance of the Director General, Lahore Development Authority, Lahore. Further adds that Director General, Lahore Development Authority, Lahore, being out of city in connection with his official duty, cannot appear before this Court. It is high time to note that in recent past a tendency has developed that government functionaries do not bother to comply with orders of the courts rather flout them on flimsy suppositions. The Director General, Lahore Development Authority, Lahore, as well as the Senior Member Board of Revenue Punjab, Lahore, were informed through fax but both of them have opted not to appear before this Court. The explanation advanced by the Member (Colonies) Board of Revenue on the one hand and the learned counsel for the respondents-LDA on the other, for nonappearance of the said authorities, cannot be treated as sufficient rather smacks disobedience on their part. Such act of the government functionaries cannot be let unnoticed as if they are allowed to defy orders of the Court, the same would badly affect the threadbare of our social set up inasmuch as if the government functionaries do not honour the Courts' orders, then nobody would come forward to rescue us from total catastrophe.
11. The administrative authorities are bound to facilitate adjudication of the matters before the Courts of law but the conduct of the officers, under discussion, speaks otherwise. Though, it is a fit case for initiation of contempt proceedings but while using maximum restraint, the matter is referred to the Chief Minister Punjab/Chairman, Lahore Development Authority, Lahore who shall look into the conduct of above authorities and take appropriate action against them to ensure strict compliance regarding the orders of the Courts.
12. This court, while dealing with a matter regarding infringement of fundamental right of an individual or a group, cannot loose sight of the fact that fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter to be referred as "the Constitution") are not meant merely to be pious enunciation of certain principles supposed to be the basis of the Constitution. The characteristic of a fundamental right is its superiority over ordinary State-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative-power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of the fundamental rights is protected by Article 8 of the Constitution which prohibits the State which includes the Legislature not to make any law by which any fundamental right may be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. It is not liable to be abridged by any legislative or executive orders.
13. The controversy involved in the present case relates to infringement of fundamental right qua property. The right of enjoyment of one's property has been recognized nationally as well as internationally. Article 17 of the Universal Declaration of Human Rights provides that everyone has the right to own property alone as well as in association with others. Further, Part-II of the Constitution ensures protection of fundamental rights of the individuals. According to Article 23 of the Constitution, every citizen has the right to acquire, hold and dispose of property in any part of Pakistan. Further, as per Article 24 of the Constitution nobody can be deprived of his property except under due process of law. While discussing the importance of right of an individual to protect his property rights, the Hon'ble Supreme Court of Pakistan in the case of Abdul Sattar v.
Land Acquisition Collector (2010 SCM R 1523) has held as under:- "The learned ASC has also relied upon the provisions as enumerated in Article 24 of the Constitution of Islamic Republic of Pakistan by ignoring the well entrenched proposition of law that "before the State can deprive a person of his property, it has first to arm itself with a "law". Even where the law authorizes the Executive to deprive a person of his property under certain circumstances the Executive is bound to strictly follow the procedure which is laid down by the "law" for the taking of the property ...."(emphasis provided)
' Likewise, in the case of Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum and others (PLD 2002 SC 706) the apex Court of the Country, while dealing with the said important aspect, has observed as under:--- "We have minutely perused the provisions as contained in Article 24 of the Constitution. There is no cavil with the proposition that the sanctity of private property has been acknowledged in a crystal clear manner but it must not be lost-sight of that where a person is deprived of his property under the authority of law and according to the provisions of law, he has no ground for complaint under the Constitution and the only embargo which has been imposed under Article 24 of the Constitution is that no private property can be acquisitioned save in accordance with law and that too for a public purpose and on payment of compensation. (Fauji Foundation v Shamimur Rehman PLD 1983 SC 457). It can thus be concluded that a land can be acquired for public purpose subject to payment of compensation to be determined by the competent forums provided under the Act. "(emphasis provided)
'In view afore-quoted judgments of the Hon'ble Supreme Court, it is bounden duty of the Executive to respect an ordinary legal right of a subject towards protection of his property and if the Government opts to acquire land for a public welfare project, it can do so without following the procedure on the subject in addition to paying compensation in lieu thereof as the fundamental rights, guaranteed under the constitution, can neither be treated lightly nor interpreted in a casual or cursory manner rather while interpreting fundamental rights, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, they should be reasonably compensated.
14. Learned counsel representing LDA has repeatedly argued that the petitioners, being encroachers, are not entitled to any compensation against the shops demolished by the government functionaries rather measures for allotment of alternate shops to them are being taken out of grace. In this regard, I am of the view that said stance of the learned counsel for the respondents stands negated from the fact that the shops, subject matter of the instant petition, were allotted in the name of the Mosque in lieu of the land utilized by the respondents for widening of Lytton Road. This being the position, the plea adopted by the learned counsel is discarded.
15. At the cost of repetition, it is observed that nobody can be deprived of his property except under the due process of law. If the government reserves its right to acquire any land for completion of public welfare project, at the same time the owners of properties cannot be dispossessed without awarding them due compensation. For the purpose, either the government can adopt the procedure laid down in Land Acquisition Act, 1894, or can resort to private negotiations. A glance over the documents annexed with this petition as well as those attached by the respondents with their report and para wise comments affirms that neither the shops were acquired while applying the provisions of Land Acquisition Act, 1894, nor the same were scrapped as a result of any private negotiations between the parties. In this backdrop, the act of the respondents towards demolition of the shops cannot be given legal blanket. Thus, LDA authorities are bound to compensate the petitioners for the reason that despite demolishing the shops in question in the year 1998, neither a single penny has been paid to the petitioners in the shape of cash compensation nor any alternate land has been allotted to them in lieu thereof.
16. Learned Assistant Advocate General has raised objection that the petitioners cannot claim relief beyond the prayer clause. In this regard, I am of the view that normally relief cannot be granted beyond the prayer clause, however, the power of this Court to look into the events occurred during pendency of a matter cannot be abridged. In this regard, I stand guided by the verdicts of the apex court of the country in the cases reported as Muhammad Shehzad Malik v. Muhammad Suhail and another (2010 SCM R 1825) Mst. Amina Begum and others v Mehar Ghulam Dastgir (PLD 1978 SC 220) and Syed Ali Asghar and 3 others vs. Creators Builders and 3 others (2001 SCM R 279). In the case of Muhammad Shehzad Malik (supra) the august Supreme Court has inter alia held as under:--- "The learned High Court had also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Muhammad have filed suit against the petitioners and others for securing compensation of land in question. It is also settled principle of law that superior courts had ample jurisdiction to look into the subsequent events at the time of deciding the case. (emphasis provided)
' Likewise, in the case of Syed Ali Asghar and 3 others (supra) the apex court of the country while adjudicating upon the question regarding jurisdiction of this court to take note of subsequent events has laid law to the following effect:--- "We cannot decide in this petition whether the act of grant of permission in respect of change in use of plots by Federal Government prejudiced the determination of matter/petition before the learned Division Bench of High Court as it would require investigation, enquiry and evidence so as to arrive at the conclusion whether there has been contravention of Article, 204(2) (c) of the Constitution by the respondents but the learned members of the Division Bench of the High Court were justified in considering the faction of grant of permission for change in use of plots considering that under the law the Court could take notice of the changed circumstances and subsequent events relevant for the determination of controversy between the parties. "
(emphasis provided).
' Insofar as the case in hand is concerned, a cursory glance over the Order Sheet shows that during pendency of the instant petition, responsible, officers of LDA appeared and undertook to ensure allotment of alternate shops to the petitioners. Thus, at this moment the learned Assistant Advocate-General cannot grouse against the petitioners while pressing into service the point that nothing can be granted beyond the prayer clause of the present petition.
17. It is very interesting to note that on the one hand, learned counsel for the respondent-LDA has taken stance that since the possession of the petitioners over the demolished shops was not more than that of an encroacher, they are not entitled to any compensation or alternate allotment of land but on the other hand, while taking sudden U-turn, he argues that LDA authorities have already deposited considerable sum with the Board of Revenue for the purchase of land to accommodate the petitioners. Both the pleas adopted by the learned counsel for the respondents- LDA do not coincide with each other. If the LDA authorities were of the view that the petitioners were not entitled to any compensation or allotment of alternate land, they could straightway decline their request solely on that ground and they had no compulsion to deposit any amount with the Board of Revenue. Since nobody can be allowed to blow hot and cold in the same breath, the two divergent pleas of the LDA authorities cannot be given any consideration.
18. Even according to the principle of equity and fairness, when the government has used the land underneath shops owned by the Mosque, it is constitutionally bound to accommodate them in lieu thereof. However, the conduct and behavior of the respondents-authorities is sufficient to indicate the pathos and miseries of the petitioners who are just waiting for the decision of the matter finally as their last hope and would presume it miracle if the same is redressed. Further, mere deposit of a certain sum by one government department with the other, does not absolve it from its legal duty.
The dismal state of affairs, portrayed above, deserves prompt action by the government functionaries but unfortunately, no concrete steps have been taken by the respondents to cut short the miseries of disgusted petitioners. The deposit of cost of land by the LDA with the Board of Revenue and subsequent execution of sale deed by the said department in favour of LDA leaves no ambiguity that the petitioners are entitled for allotment of alternate land. After completion of the Sale Deed, for the last many years, the matter is in status quo position compelling the petitioners to invoke the constitutional jurisdiction of this court with the hope that they would ultimately succeed to get redressal of their grievance. If this court shuts it eyes, as the respondents have done, while considering it as a matter of trivial nature, the public-at-large would be left with no option but to show distrust on the judicial system which ultimately would result into turmoil as no nation can survive without strong and confidence inspiring judicial system.
19. Considering from another perspective, the shops, subject-matter of the instant petition, being part of the Mosque, were rented out to different persons and the funds raised from their monthly rent were being utilized for running the affairs of Mosque as well as Maddrassa. As per our religious as well as social norms, we are bound to generate funds for running the affairs of religious and charitable institutions. Being an Islamic Welfare State, the government should have a considerable contribution in such matters but unfortunately, in the case in hand, the government despite having utilized the land owned by the Mosque, is reluctant to allot alternate land which ultimately can be permanent source of income for smooth running of affairs of the Mosque.
20. The Member (Colonies), Board of Revenue, Punjab, Lahore while appearing before this Court states that according to the instructions imparted by the Additional District Collector, Lahore, no Nazool land is available in the city for sale to the LDA for ultimate allotment to the petitioners. It is ironic state of affairs that the provincial Government is acquiring land from the private persons for expansion of roads and other projects of public welfare on daily basis but is unable to arrange a paltry chunk of land for allotment in favour of the petitioners in lieu of the land used by the government. If the government is so helpless to arrange skimpy patch of land, it has no justification to deprive the citizens of their precious holdings for other projects. The Rulers of the country are raising slogans day in and day out that they would leave no stone unturned to make the country as Islamic Welfare State but the inaction on the part of the respondents to accommodate the petitioners lends support to the belief that no concrete steps are being taken by the government towards redressal of grievance of the masses.
21. Learned A.A.-G. Has emphasized on the point that as the land of the Mosque was not utilized by the provincial Government it has nothing to do with the issue in hand rather LDA, being autonomous entity, is solely responsible for allotment of alternate land to the petitioners. I am unable to understand that learned A.A.-G, despite the fact that he is the Principal Law Officer of the Province, has raised such plea in oblivion of the fact that though LDA is enjoying autonomous status but the fact remains that it is working under the control of Government of Punjab.
Further, religious and charitable purposes should not be allowed to suffer on account of official/departmental formalities.
22. It is of common knowledge that Board of Revenue is the principal authority in the revenue hierarchy in the province. The Member (Colonies); Board of Revenue, Punjab, in view of the status he is enjoying, has been summoned to sort out a remedy for solution of the matter but instead of providing any assistance to solve the issue, he has come up with the plea that according to instructions imparted by the Additional District Collector, Lahore, no Nazool land is available for sale to LDA for further allotment to the petitioners. It is sorry state of the affairs that a person, who otherwise can play a pivotal role for solution of the issue, has come up with such wobbly response.
23. As a necessary corollary to the discussion made in the afore-going paragraphs, I have no hesitation to hold that the petitioners are entitled for allotment of alternate land in lieu of shops demolished by the respondents. Consequently, this petition is accepted. As despite lapse of more than 16 years, the respondents have failed to resolve the matter, the Chief Minister, in the capacity of Chairman Lahore Development Authority, Lahore, is directed to take up the matter by himself and ensure the allotment of alternate land to the petitioners while detaching their matter from other, persons whose status was not more than encroachers. This court feels confident that the said process shall be completed within a span of four months under intimation to this court through Deputy Registrar (J).
24. Office is directed to immediately transmit copy of this order to the Chief Minister Punjab/Chairman, Lahore Development Authority, Lahore for compliance and further necessary action against the authorities. He shall also look into the conduct of Senior Member Board of Revenue as well as the Director General, Lahore Development Authority, Lahore, in the light of the discussion made in the above paragraphs with specific reference to paras. Nos.10 and 11.