SHAHID BILAL HASSAN-J: This constitutional petition has been directed against Notices dated 29.01.2024 issued by the respondents whereby the petitioners have been directed to vacate their possessed land within 24 hours, without first providing them equivalent alternate land, contending that the same are illegal, unlawful and contrary to judgment reported as PLD 1971 Supreme Court 376 and violative of fundamental rights of the petitioners and preferential right of alternate land which had been previously granted to the petitioners.
2. Succinctly, the petitioners are occupants of properties in the close vicinity of Hazrat Ali Bin Usman Hajvery, famously known as Hazrat Data Ganj Bakhsh (R.A.); that the petitioners are descendants of "Sajjada Nasheen"/ Mujawareen of the shrine of Hazrat Ali Bin Usman Hajvery and are in occupation of their respective properties; the revenue record reflects the afore-stated occupation since long; that in pursuance of judgment report as Haji Ghulam Rasool, etc. v. The Chief Administrator Auqaf, etc. (PLD 1971 SC 376), the control and management of the Shrine was taken over by the Auqaf Department and the same is still with them subject to the rights of the Mujawareen as recognized in the said judgment. However, in the year 2020, the respondents started field survey of the properties with the intent to allegedly displace the petitioners' families, which constrained the petitioners to approach this Court by filing W.P.No.10126 of 2020, which was disposed of on 16.02.2023 keeping in view the reply of the respondents that the petitioners will not be dispossessed other than in due course of law. During the present caretaker regime, certain vested interests attempted to undertake an illegal survey of the land, which constrained certain third parties to challenge the same. Writ Petition No.55659 of 2023 and I.C.A.No.72272 of 2023 were filed and dismissed. Due to dismissal of the above mentioned proceedings, the respondents stopped all negotiations and have commenced a process to illegally dispossess all parties including the petitioners. Allegedly, on 18.01.2024, the petitioners were served with notices dated 11.01.204 requiring them to hand over possession to the respondents within 24 hours. Various third parties challenged the same, which proceedings are pending before this Court. Again notices dated 29.01.2024 were issued by the respondents No.6 and 7 with direction to vacate the possessed land to the petitioners.
3. Concise report has been submitted by the respondents. Arguments heard and report perused.
4. It has been noted that on 11.01.1960, 31.10.1960 and 28.11.1961 through notification(s) issued under section 6 of the West Pakistan Waqf Properties Ordinance, 1959, holy shrine of Hazrat Ali Bin Usman Hajvery, famously known as Hazrat Data Ganj Bakhsh (R.A.) and other properties attached thereto were taken-over by the office of the Chief Administrator of Auqaf. Number of persons including the petitioners to be members of the body of Mujawareen of the Shrine filed a petition under section 7 of the Ordinance ibid before the District Judge, Lahore seeking a declaration that certain properties, sought to be taken over by the Chief Administrator Aquaf, were not waqf properties or in the alternative were waqf properties within the limits and subject to the rights of the petitioners as claimed by them in their respective petitions, which petitions were dismissed; appeals there- against were also dismissed by the erstwhile High Court of the West Pakistan Lahore on 03.03.1966.
The petitioners in those petitions approached the Hon'ble Supreme Court of Pakistan. The Apex Court of the country while deciding the appeals through judgment reported as Haji Ghulam Rasool, etc. v. The Chief Administrator Auqaf, etc. (PLD 1971 SC 376) observed as under:- '...... All that the Chief Administrator of Auqaf can do is to take rent from them or terminate their right to possession by appropriate legal proceedings for their ejectment. If the management and control of a waqf property is taken over by the Administrator of Auqaf it does not mean that such taking over automatically extinguishes the tenancy rights or the rights to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law.
We accordingly uphold the declaration granted by the courts below that the immovable properties mentioned in the impugned notifications minus the structures thereon are waqf properties and their control and management could lawfully be taken over by the Chief Administrator of Auqaf under the West Pakistan Waqf Properties Ordinance but subject to the limitations hereinbefore mentioned in the judgment.
Before we part with this case, we would like to place on record that at one stage there was a talk of a compromise in the matter. Under its terms, as then stated, it was proposed to give to the Mujawaran some Government lands on the Ravi Road in lieu of land which they now occupy, on a reasonable rent. The majority of Mujawaran were agreeable to this. The judgment in these appeals was, accordingly, kept pending to enable the parties to complete the negotiations.
Ultimately, however, we were informed that the Government was only prepared to give alternative lands to the persons occupying some 12 kanals of land in immediate vicinity of the Darbar and not to the others. The talks of compromise, accordingly fell through, but we would again urge upon the Government to consider the possibility of giving alternative land at a reasonable rent to the Mujawaran sought to be displaced from their present holdings, if ever it is decided to do so, in order to help them rehabilitate themselves after the loss of the substantial income that they would have otherwise earned out of the offerings at the Darbar.'
In compliance with the above said esteemed judgment, when the respondents served notices upon the petitioners, they challenged the same by filing the constitutional petition bearing W.P.No.10126 of 2020. On 16.02.2023, when the said constitutional petition came up for hearing, the learned counsel for the petitioners in that petition drew attention of this Court to the comments submitted by the respondents No.2 & 3 i.e. Province of Punjab through Secretary to the Government of Punjab, Auqaf Department Secretariat Lahore and Chief Administrator Auqaf Department, whereby it was submitted that the said respondents will not take any coercive action against the petitioners (in the said constitutional petition), and in addition to this it was submitted that the respondents will not dispossess the petitioners other than in due course of law. In this view of the matter, the petition was disposed of as having borne fruits. The incumbent Chief Minister Punjab formulated a committee for the purpose of retrieving the land from the Mujawareen after negotiation and the formulation of the Committee was also notified by the Chief Administrator Auqaf vide office letter dated 29.03.2023. The Chief Administrator of Auqaf also constituted departmental committee vide order dated 22.03.2023 for implementation of judgment of the Supreme Court of Pakistan ibid. After consecutive meetings on different dates the respondents offered different patches of land to the petitioners and other occupants but they refused all offers and instead a constitutional petition bearing No.55659 of 2023 was filed which was dismissed and I.C.A. No.72272 of 2023 against its dismissal was also dismissed on 01.11.2023. The respondents are ready to give 22-kanals of land attached to Darbar Hazrat Bou Ali Qalandar (R.A.) situated in Mauza Bagrian to the petitioners and other occupants on rent as per decision of the Supreme Court of Pakistan but the petitioners and others are adamant to have the land adjacent to the shrine of Hazrat Data Ganj Bakhsh (R.A.). The Auqaf Department is ready to accommodate the Mujawareen including the petitioners, considering the availability of the waqf land in compliance with directions issued in judgment reported as PLD 1971 Supreme Court 376. The petitioners and other Mujawareen cannot be accommodated as per their desires and wishes rather they can be provided with alternate land keeping in view its availability because the Supreme of Pakistan give direction as such that:- '...... but we would again urge upon the Government to consider the possibility of giving alternative land at a reasonable rent to the Mujawaran sought to be displaced from their present holdings, if ever it is decided to do so....'
Meaning thereby, it is nowhere written in the judgment of the Supreme Court of Pakistan that the Mujawaran will be provided with the land as per their wishes and desires rather it is evident that keeping in view their longstanding possession, they have been ordered to be accommodated with alternate land subject to its availability on reasonable rent.
5. Another factor in this case is that neither the petitioners nor their predecessors ever agitated at the time of filing the first petition that alternate place adjacent to the shrine of Hazrat Data Ganj Bakhsh (R.A.) be provided to them, therefore, at subsequent stage they cannot claim as such because the Order II Rule 2, Code of Civil Procedure, 1908 comes in their way, which provides:- 'Suit to include the whole claim: (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim: Where a plaintiff omits to suit in respect of, or intentionally relinquishes, any portion of his claim, he shall not be afterwards sue in respect of the portion so omitted or relinquished.
(3) .............................................'
(Emphasis supplied)
6. In addition to the above, the petitioners and others time and again, approaching this Court only to prolong their possession. Admittedly, earlier petition on the same subject was disposed of on 16.02.2023; therefore, when a remedy has already been availed and being satisfied with the proceedings and actions to be conducted in accordance with law by the respondents, the petitioners, who were some of occupants, impliedly did not press the earlier petition, the subsequent petition i.e. the instant petition, is not maintainable because the same is hit by principle of approbate and reprobate. Moreover, it seems that the petitioners are not willing to allow the respondents from implementing the judgment passed by Supreme Court of Pakistan and want to get the alternate land as per their own wish and desire which cannot be acceded to as there is nothing in the judgment of the Supreme Court of Pakistan that the alternate land as per wishes and desires of the petitioners and others will be provided.
7. In view of the above, the constitutional petition in hand being without any force and substance stands dismissed.