' It is stated that a parcel of land measuring 58 Kanals 4 Marlas is attached to a Waqf styled as Baba Noor Shah Wali Graveyard, Faisalabad, and respondents Nos.1 and 2 have, for extraneous considerations, authorised certain Katcha constructions on this land to various parties in the nature of "Khokhas", houses, factories, workshops and restaurants etc. It has been further alleged that on account of this encroachment the graveyard in question is being destroyed. The ground of petitioner is that the respondents Nos.1 and 2 have transgressed their jurisdiction since they have no power or authority under the law to authorise such construction.
2. Learned counsel for respondents Nos. 1 and 2 has raised one preliminary objection as to the maintainability of the writ petition i,e, that petitioner is not an aggrieved party within the meanings of Article 199 of the 1973 Constitution. It has been further contended that the action of respondents Nos.1 and 2 is strictly in accordance with law i,e, within the permissible domain of the statute, in particular section 11 of the West Pakistan Waqf Properties Ordinance, 1961, read with rule 7 of the West Pakistan Waqf Properties (Administration) Rules 1960. The relevant text of foretasted statutory provisions are reproduced herein under:- The West Pakistan Waqf Properties Ordinance, 1961.
"Section 11. Chief Administrator to prepare scheme for the administration of Waqf Property.--
(1) The Chief Administrator shall as respect the Waqf property in respect of which a notification under section 6 has been issued and the gross annual income from which exceeds rupees five thousand, and in other cases, may settle a scheme for the administration of such Waqf property."
The West Pakistan Waqf Properties (Administration) Rules, 1960. "Rule 7.-Lease of Waqf Properties.--
(1) Unless otherwise specifically provided in the scheme settled under rule 5, the following directions with regard to the lease of Waqf property shall be deemed to form part of such scheme:-
(2) The Chief Administrator may, if in his opinion the continuance of any lease of Waqf property, made after the 4th November, 1961, is not in the interests of the Waqf property, cancel the lease:-
(i) by giving one month's notice to the lessee and the lease shall stand terminated on the expiry of such period; of
(ii) by tendering one month's rent to the lessee and the lease shall stand terminated forthwith on such tender.
(3)(1) After the publication of the notification under section 6 of the Ordinance, the Manager may issue a notice requiring the occupant of the Waqf property within seven days of the receipt of the notice, to deliver vacant- possession thereof to him or to execute a lease-deed in respect thereof in favour of the Chief Administrator;
(2) If the occupant fails to comply with the notice issued under above sub-rule (1), the Manager may eject him with the use of such force as may be necessary;
(4) If a lessee of a Waqf property, without permission of the Manager sub-lets or in any way transfers the Waqf property;
(i) the lease in favour shall stand terminated;
(ii) the rent, if any, paid in advance shall stand forfeited; and
(iii) the lessee, sub-lessee or transferee shall be liable to be ejected therefrom forthwith, the use of such force as may be necessary."
3. I have perused the statutory provisions and have also heard the arguments advanced by the learned counsel for the parties at the Bar.
4. The scheme contemplated by Article 199 of the 1973, Constitution is that in so far as petitions in the nature of writs, styled as quo warranto and habeas corpus, it is contemplated by the framers of the constitution that a petition can be made pro bono public by having deployed the expression "any person"; whereas this formula has been departed in cases of writs in the nature of prohibition, certiorari and mandamus; there the law-giver has used a categorical expression as a condition precedent that is petitioner has to be an "aggrieved party". From the contents of the petition, it transpires that petitioner is not in stricto senso an aggrieved party. Thus, this petition is not maintainable on this ground alone.
5. Independent of the above, have examined the text of section 11 of the West Pakistan Waqf Properties Ordinance, 1961 read with rule 7 of the West Pakistan Waqf Properties (Administration), 1960. By virtue of section 11, respondent No,1 is empowered to settle scheme for the administration of Waqf property, whereas rule 7 has prescribed a detailed mechanics of leases in particular, inter alia, creation and termination of such leases. Therefore, I have no hesitation in holding that respondents Nos.1 and 2 have the lawful authority to authorise constructions as alleged in the form of leases.
6. I have also seen the report submitted by respondent No,2, pursuant to the orders passed by this Court. It is stated in the report that certain temporary structures (with a view to maintaining and preserving the graveyard and to save it from illegal encroachments) were authorised to various persons in accordance with law. It has been further stated that sufficient land is available for the purposes of graveyard. Respondent No,2 has given a categorical undertaking that as and when the exigencies so warrant for the purposes of the graveyard these authorised temporary structures shall be expeditiously removed. Thus, a perusal of the report goes to show that the allegations of petitioner are ill-founded.
7. In view of the above, this petition is dismissed. There shall be no order as to costs.