' BASHARAT AHMAD SHAIKH, J.-- The dispute in this appeal relates to a plot reserved for a mosque in Part-I of sub-sector F-3 in Mirpur. It is stated that various plots were created and shifted in such a way that the land reserved for the mosque has been reduced. A writ petition was, therefore filed by the present appellants which was decided in these terms:-- "As this piece of land is at the moment available and in use of the mosque and as stated by the representative of the Development Authority is not allotted to anybody, I deem it proper to issue a direction by the way of writ of prohibition to respondents Nos.1 to 5, as follows:-- 'The respondents are restrained from encroaching, allotting, revising or in any way altering the position of the above referred area reserved for mosque. The mosque in charge committee/the petitioners are at liberty to erect structure/walls upon the above specified area.'"
2. The appellants are not satisfied with the direction given by the High Court. It was stated by Mr. Muhammad Riaz Inqalabi, the learned counsel, that the direction given by the High Court is based on a wrong assumption that land measuring 3 kanals was reserved for the Mosque while it is not so. It is explained by the learned counsel that the High Court has partly upheld the case put up by the appellants but the direction given in the judgment under appeal does not conform to the favourable conclusion drawn in earlier part of the judgment. Hence this appeal with leave of the Court.
The appellants, who are ten in number, are owners of houses in sub-sectorF-3, Mirpur. They filed a writ petition in the High Court on 4th July, 1995 in which they stated that in the original planning and Master Plan of sub-sector F-3 land measuring more than eight Kanals was reserved for a mosque on the main Kotli Road but subsequently the functionaries of the Mirpur Development Authority illegally altered the Master Plan and various plots were marked in the land reserved for the mosque which have been allotted to the private-respondents. It was averred that part plans were prepared from time to time to reduce and further reduce the land reserved for the mosque by marking and allotting new plots with the result that only 10-15 Marlas are left for the mosque. It was further averred that the appellants recently constructed two rooms for offering prayers whereupon many persons came to claim that they had been allotted plots within the land originally reserved for the mosque. Those persons were in possession of the allotment chits and also part-plans. It was further stated that the appellants then approached the Mirpur Development Authority for clarification but were told that it was correct that plots had been created and allotted on land originally reserved for the mosque. It was alleged that the office of the Authority refused to issue certified copies or to furnish further details. A photo-copy of the Master Plan was attached with the writ petition as Annexure PA/6. It was explained in the writ petition that while creating new plots on the land reserved for the mosque some plots originally located at different places around the mosque area were shifted to the mosque area and new allotments were made against the old sites of the shifted plots. The appellants prayed that all subsequent changes in the Master Plan, the creation of new plots and shifting and allotments of plots on the land reserved for the mosque may be declared to have been made without lawful authority and the land originally reserved for the mosque may be restored. Before the High Court, the Mirpur Development Authority and its functionaries tried to show that land measuring more than eight Kanals was not reserved for the mosque by denying the dimensions given in the writ petition but, as will be presently noted, their effort has proved futile and it stands proved that the averment made in the writ petition is factually correct. Para. 3 of the writ petition was as follows:-- "3. That according to the original planning and Master-plan, a considerable area measuring 270' x 280' + 160' x 160' was marked and reserved for a 'mosque' on the main Mirpur Kotli Road. Copy of the Master-Plan is attached herewith as Annexure PA/6. The area reserved and marked for said mosque is shown with red ink."
' The reply filed by the official respondents was as follows:-- "(3) That para. No,3 of the writ petition is correct to the extent that some area was reserved and marked for the mosque dimension given and rest of the para. Is incorrect."
4. It may be seen that it was stated that dimensions given in the writ petition were not correct but the authenticity of the plan, marked as Exh.PA/6, was not denied. Under the direction of this Court the Town Planner of the Mirpur Development Authority has submitted the original plan of sub- sector F-3 approved in 1981 as well-subsequent part-plan of land in and around the mosque area.
He has also filed a report in which it is stated That according to the Master Plan prepared in 1981 land reserved for mosque in sub-sector F-3, Part-I was 8.08 Kanals. According to the report one side of the plot was 280 feet, the second side was 270 feet while the remaining two sides were 160 feet each. According to the calculations made by the Town Planner the land was 44,000 square feet which is shown as equal to 8.08 Kanals. The report also states that after marking of new plots and shifting of plots to the site reserved for the mosque land measuring 4.98 Kanals has been brought under plots while 3.37 Kanals is left for the mosque. During subsequent proceedings in this Court this position has not been contested by any party. The Town Planner has also appended part plans with his report which show that the plan of the area was partly changed from time to time.
The result was that the land reserved for the mosque has been reduced from 8.08 Kanals to 3.37 Kanals.
5. We have already reproduced the operative part of the judgment of the High Court. The High Court has issued a writ of prohibition to protect the piece of land which, according to the information furnished to the learned Judge from a file produced by the Mirpur Development Authority, is still available for the mosque. It has been vehemently contended by Mr. Muhammad Riaz Inqalabi that the writ petition had not been filed to protect the land which is still available for the mosque but was filed to retrieve the land which was reserved for the mosque under the original plan of sub-sectorF3 which was illegally and arbitrarily changed in order to create plots on the land reserved for the mosque. It has been asserted by the learned counsel for the appellants that the file mentioned above was neither summoned nor produced during the hearing of arguments in the writ petition but was subsequently produced before the High Court. This position is not contested by the respondents. We have also requisitioned the file to see its contents. The file shows the name of allottee as 'Dar-ul-Uloom Zia-ulQuran Masjid and Madrassa'. The documents in the file show that the 'Dar-ul-Uloom' filed an application through one Syed Ghulam Rasool Shah that they may be alloyed to construct the mosque. The plan of the mosque was attached. The 'dimensions of the land are the Same. As those which now remains after the creation and shifting of new plots. It is stated in the noting side of the file that the tile duplicate of the original file because the original had been lost. We agree with the learned counsel for the appellants that this tile has no relevance with the question which was raised in the High Court, namely. Whether the land reserved for the mosque had been reduced without lawful authority or not.
6. Before the High Court the plea taken by the Mirpur Development Authority was that section of the Mirpur Development Authority Act gave power to the Authority to reduce any scheme from time to time as and when the interest of the public so requires. Section is as follows:-- "( I I) Master Dian and Master Programme. ---The Authority may, or if so directed by the Government shall prepare master plan and phased master programme for the development of any part or whole of the specified are of the District of Mirpur and all such plans and programmes prepared from time to time shall be submitted to the Government for approval: ' Provided that the Authority may issue interim development orders for areas for which master plan is being contemplated or is under preparation and restrict or prohibit by general or special order any change in the use of land and iteration in buildings, structures and installations.
' Provided further that the Authority may make necessary additions and alterations as per actual requirements in the approved master plan."
' It was duly contended before the High Court on behalf of the appellants, oft the basis of the averments in the writ petition, that the land reserved for the mosque had been reduced without lawful authority and similarly plots were created and shifted with ulterior motives. It was contended that the plan of the sub-sector had not been legally modified and changed. It was also contended that in all housing schemes mosques, roads, sewerage lines, water supplies, electrification and others are paid for by the allottees by way of development charges and that the rights of the petitioners who were allottees of the sub-sector had been violated by encroachment upon the land reserved for the mosque. However, on behalf of the Mirpur Development Authority no document or proof was produced to show that the changes have been, brought about with lawful authority. The argument that the land reserved for the mosque has been paid for by the allotees was also not met. The High Court itself in para. 5 of the judgment observed that it was shocking that the land reserved 1( public use in housing sector had been encroached upon in connivance with the Development Authority. Before this Court also the Mirpur Development Authority and the private-respondents failed to show that any competent authority had brought about the changes in the original plan. Only part plans have been produced by which changes were brought about one after the other. These documents do not have any legal validity. Similarly there is no valid explanation as to how the land reserved for the mosque, which had been paid for as part of the development charges, could be taken away for utilizing it for creating new plots. It follows that no authority has been shown which sanctioned these changes, with the result that all changes impugned in the writ petition in and around the land reserved for the mosque were without legal authority and of no legal effect.
7. The conclusion that no lawful, authority has been shown under which changes were brought about as aforesaid is enough to decide the question of legality of the impugned changes, but there is a more C important aspect of greater dimension to which we may now advert. Admittedly the Mirpur Development Authority had reserved 8.08 Kanals of land for construction of a mosque.
Under the Islamic law mosque is 'Waqt' and once a piece of land is dedicated for a mosque the site becomes a mosque and cannot he subsequently put to any other use. In fact dedication of property for 'Waqt" extinguishes the title of the original owner. These principles have been incorporated in a judgment of the shore High Court which is reported as Haq Nawaz and others v.
Province of the Punjab through Chief Secretary, Civil Secretariat, Lahore and 2 others (1997 MLD 299). This judgment was written by Mr. Justice Mian Nazir Akhtar after great research and contains large number of references of Quranic verses, traditions of the Holy Prophet (S.A.Ws) and authoritative works on the subject as to status and sanctity attached to mosque and land reserved for it. It is landmark judgment in which almost all the aspects of the institution of mosque have been authoritatively discussed and principles have been reiterated with clarity. In light of the principles mentioned above, which we respectfully follow, the result is that having once reserved 8.08 Kanals of land for construction of a mosque the title of the Mirpur Development Authority had extinguished and the Authority could not deal with it as its owner to allot any part of it to any individual.
8. However, the respondents have pleaded with great Vehemence that the writ petition is hit by the doctrine of laches. In light of the view expressed above delay cannot be a factor in the present case for withholding the relief. As held above land having once reserved for construction of mosque it ceased to be the property of the Mirpur Development Authority. It follows that the Mirpur Development Authority has been allotting land which belonged to the mosque, which is a property of Allah. When the land did not belong to the Authority its illegal usurpation under the colour of official authority cannot be condoned. It has been held in Masjid Hanifa v. Qurhan Hussain Shah (PLD 1996 Lah. 314) that masjid being property of Allah no limitation would run against it.
9. We devoted sometime to find out the ground realities and have come to know that no construction has been raised in the mosque area. In fact only one house has been constructed in the area covered by the modified part plan. All other plots are lying vacant. The plot over which the house has been constructed is marked as Plot No,198. The site of this pot was always outside the mosque area. We may clarify that the aforesaid construction will be treated as vast and closed transaction. If the site of Plot No,198 previously carried some other number and was allotted to any other person who has not been allotted some other, plot he will be compensated by the Development Authority by allotting an alternative plot under the authority of this judgment. The blot should be such that it compares favourably with the value of the Plot No,I98.
10. In the light of foregoing discussion, it is ordered as follows:- ( I ) Land measuring 8.08 Kanals in accordance with the Master Plan available in the file of this Court as well as in the High Court file as Annexure PA/6 is restored to the mosque in the shape of which it is shown in the Master Plan; (2)plots created and allotted in the mosque area, thus, restored shall stand cancelled; (3)if any, plot has been shifted from the E mosque area the same will be shifted back; (4)direction in respect of Plot No,198 given in para. 9 shall be maintained; (5)the Mirpur Development Authority will implement this judgment within three months. However, if any difficulty arises in its implementation the Authority may seek clarification 'or further orders by bringing the matter to the notice of this Court.