CH. MUHAMMAD IQBAL, J. Brief facts of the case, as contended by learned counsel for the petitioners are that the Government Boys High School Farooka was established in 1908 with the name of Committee Khalsa High School Farooka comprising land measuring 180 Kanal, which was donated by Sikh Community and the construction of School was made in 1908 and some grassy plots as well as playground were reserved for the students of the said school. The donated land was duly incorporated in the revenue record through mutation Nos. 154 and 156 dated 02.03.1919 as well as Mutation Nos. 447, 448, 449,450 dated 28.11.1940 and 455 dated 20.01.1941. The said school was remained under the management of the Khalsa Committee till 1947 and after creation of Pakistan some local inhabitants of the vicinity illegally occupied the portions of the said land. That the entire land as well as building of the school was taken over by the Evacuee Trust Property Board in 1970. As per the notification dated 10.06.1976 issued after the decision of the Cabinet Committee special meeting held on 09.06.1976 wherein it was decided that all evacuee trust buildings, housing educational institutions are to be handed over to the concerned Education Department of the province. In pursuance of the notification dated 10.06.1976 only 65 Kanal land was transferred in favour of Education Department through mutation No.1384 dated 03.09.1980. Land measuring 08 Kanal 05 Marla adjacent to the playground of the school was later on transferred in favour of the Education Department through mutation No.2401 dated 20.12.1994 and the major portion of land measuring 106 Kanal 15 Marla was not returned to the school [Education Department]. The Education Department for retrieval of the possession from the illegal occupants filed Writ Petition No.18187/1995 wherein vide order dated on 16.04.1999 direction was passed to the Commissioner, Sargodha Division to remove encroachments. The illegal occupants challenged the said order through Infra Court Appeal No.405/1999 which was dismissed on 17.05.1999.
The illegal occupants approached the respondent No.3/Deputy Administrator, Evacuee Trust Property Board, Sargodha who submitted reference to the Chairman of the Board under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 in respect of land measuring 73-1/4 Kanal situated in Moza Farooka, Tehsil Sahiwal District Sargodha. The reference was accepted by the Chairman vide order dated 27.09.2000 and aforementioned land was declared as Evacuee Trust Property and the mutation No.1384 dated 13.09.1980 and mutation No.2401 dated 20.12.1994 were cancelled by declaring the same as unlawful. The petitioner assailed the said order through Writ Petition No.5255/2001 which was disposed of on 12.11.2003 on the ground that the petitioner may file revision petition before the Revisional Authority/Secretary, Ministry of Religious Affairs, Government of Pakistan and the Evacuee Trust Property Board will not raise any objection with regard to limitation. The petitioner filed revision petition before the Revisional Authority which was accepted vide order dated 04.06.2005. The respondent-authorities failed to implement the above order of Revisional Authority upon which the petitioners filed Writ Petition No.6492/2012 for implementation of the said order in which direction was passed on 03.07.2012 to the respondents to implement the order dated 04.06.2005. Thereafter, in compliance of the said direction, the respondents restored mutation No.2401 to the extent of land measuring 08 Kanal 05 Marla but did not implement the order in letter and spirit and did not restore mutations No.1384. Being aggrieved of the inaction of the respondent-authorities, the petitioner filed Crl.Org. No.1304-W/2014 which was dismissed on 21.04.2017 on the ground that the matter is pending before the Hon'ble Supreme Court of Pakistan. The petitioner has now filed this petition with following prayer: "Under these circumstances, it is, therefore, most respectfully prayed that this writ petition may kindly be accepted and the respondent No.1 may kindly be directed to implement notification dated 10.06.1976 as Annexure-B and to return the whole school property to the education department in the supreme interest of justice and fair play.
It is further prayed that the respondent No.1 may also be directed to pass an appropriate orders for restorations of mutation No.1384 dated 13.09.1980 in the wake of order dated 04.06.2005 passed by respondent No. 1."
2. I have heard learned counsel for the parties and have gone through the record.
3. Admittedly, the Revisional Authority/Secretary, Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan accepted the revision petition of the petitioners vide order dated 04.06.2005 and passed direction to the respondents for transfer of land measuring 65 Kanal in the name of Education Department after observing the codal formalities and also directed for transfer of the land measuring 08 Kanal 05 Marla to the Education Department. The said order is still in field but the respondents have not implemented the said direction in letter and spirit. For ready reference, relevant portion of the order dated 04.06.2005 is reproduced as under: "7. It is, therefore, held that so for as the 65 kanals area bearing following Khasra numbers is concerned, there is no ambiguity about it as it was evacuee trust property and was correctly mutated in the name of Education Department but without observing the codal formalities of the Board:- Khasra Nos.
S. No.SquareKilla Area
01. 61 21/1 2-1/4
02. 21/3 3/4
03. 62 25/1 4-1/2
04. 25/2 1
05. 66 5/1 8-3/4
06. 6 9
07. 7/2 6-1/2
08. 7/3 1/2
09. 8/2 5
10. 13 4-1/2
11. 14 9
12. 15 9
13. 67 10/2 2
14. 11/1 1-1/2
15. 2/2 3/2 65 kanals Now that very area is to be transferred in the name of Education Department but after observing the codal formalities i.e. signing of agreement by the two parties. The provincial government through Education Department should enter into an agreement with the Board for its transfer and get it recorded in the land record. If there were any encroachments in this area, the same may be got removed by the Education Department through legal action in which ETP Board authorities would provide full assistance to the Education Department.
8. As far as the remaining area of 8 kanal 5 marla is concerned, it was informed in the presence of the parties that the same area is also under occupation of various educational institutions. An area measuring 4 kanal and 5 marla is under the residence of the Principal of the College, 2 kanal with the Boys Primary School and 2 kanal with the Girls Primary School, where the buildings have also been constructed for the last many many years.
9. If this is the position, after checking on the ground, then this area also falls under the purview of the Cabinet decision, whereby all the trust properties under the educational institutions, were to be transferred to the provincial governments. Even if the educational institution buildings have been constructed consequent to the Federal Government decision, the possession of this piece of land by Education Department much before the government decision is established from the revenue record and from the two mutations, which were cancelled vide the impugned order. As it will not be possible for the ETP Board to demolish the educational institution buildings and retrieve the area and even if it is retrieved utilize the same area for the specific purpose for which the trust was created, therefore, it will be in the fitness of the things, if the remaining area is also transferred to the provincial government for utilization only for running the educational institutions exclusively.
Obviously, the provincial government will not be permitted to use this area for any other purposes except for running the educational institutions otherwise it will return to ETP Board.
10. Therefore, the remaining area measuring 8 kanals and 05 marlas is also allowed to be transferred to the Provincial Government through Education Department who should get it for education purpose only after completing all the codal formalities."
4. Furthermore, mutation No.1384 was incorporated in compliance of the Cabinet Division Decision dated 10.06.1976 which mutation later Oil was illegally cancelled by the Chairman, Evacuee Trust Property Board, whereas the Revisional Authority in aforementioned order dated 04.06.2005 observed that the mutation was incorporated in compliance of the policy of the Board which was formulated in the light of decisions of the Federal Government in 1976 and subsequent decision in 1983 regarding the possession of the Educational Institutions. The petitioners are seeking implementation of order dated 04.06.2005 passed by the respondent No.1/Revisional Authority which prayer is in accordance with law.
5. Resultantly, this writ petition is allowed and the respondents are directed to implement the order dated 04.06.2005 passed by the respondent No.1/Revisional Authority in letter and spirit with two months. Office is directed to transmit copies of this judgment to the Senior Member, Board of Revenue and Chairman Evacuee Trust Property Board who shall submit compliance report to this Court through its Deputy Registrar (Judicial/Writ) of this Court.