' This Constitutional petition has been filed for a declaration to the effect that the act of demolition of Jamia Masjid Madina, Gujranwala committed by respondents Nos.1 to 3 and 6 is illegal, unlawful and without jurisdiction and for a direction to the respondents to reconstruct the mosque at their own expense and make good the loss caused to the mosque. It is further prayed that the said respondents be directed to return motorcycles etc. Belonging to the Namazis and the material of the mosque taken away by them. Another prayer for registration of a criminal case under sections 295, 295-C and 297 of the P.P.C. Was also made but the petitioner's learned counsel did not press it and reserved the right to seek registration of a criminal case against the respondents at an appropriate stage.
2. Briefly stated the facts of the case as unfolded in the petition are that the residents of Katchi Abadi Mandar Baway, Ghazipura, G.T. Road, Gujranwala had no mosque in the vicinity to enable them to offer 5 times congregation prayers and Juma prayers etc. Initially they constructed a temporary structure for using the disputed plot for offering prayers. The plot belonged to the Pakistan Railways according to the Jamabandis for the year 1943-44, 1951-52 and 1971-72. The petitioners with the help of other residents of the locality raised a temporary structure in the shape of a mosque and then formally applied to the Chairman, Pakistan Railways, respondent No,4 for leasing out the plot for construction of a mosque. After necessary inquiry, Chairman, Railways leased out an area measuring 155' x 64' for construction of Jamia Masjid Madina (hereinafter referred to as the mosque). Accordingly the lease agreement was executed in favour of the Namaz Committee on 15-8-1997, whereby the petitioners were permitted to use the plot for purposes of praying. The Railway Administration reserved the right to demolish and remove the praying space and use the railway land for other purpose as deemed fit by it. Evidently, the land was not permanently dedicated for purpose of a mosque. As mentioned above, the petitioners had raised some construction on the disputed plot which was regularized by the Railway Administration vide letter, dated 18-8-1997 (Annexure "C") it reads as under:-- "In coruinuation of this office letter of even No, dated 4-8-1997. The competent authority has accorded sanction to lease out area measuring 9920 sq. Ft. (155' x 64') after actual survey to regularize the construction of unauthorized mosque on the Railway land as per Divisional Tracing Plan No,Misc.194/GLCY1997/LHR (ferro copy attached). A copy of agreement executed with you is also sent herewith for doing the needful accordingly."
' In this way unauthorized construction of the mosque was regularized by the Railway Administration. The petitioners claim that they raised permanent structure of the mosque and have been using it for offering prayers and organizing Mohafil-e-Darood-o-Salam. It is further claimed that a number of children had started learning the Holy Qura'n by heart in the mosque. To prove the construction the petitioners have placed on record a photograph of the mosque as Annexure "E". It appears that some rival group felt unhappy and approached the local administration for removing the mosque from the disputed site. The District Magistrate/respondent No,1 wrote letter dated 7-2-1998 to the Chairman, Pakistan Railways Board (on the application submitted by Muhammad Imran, General Secretary, Mosque Committee of the Jamia Masjid Madina) seeking clarification as to whether Pakistan Railways had granted lease to the applicants.
At the end it was mentioned that the matter be sorted out at the earliest, as the applicants were pressing hard for delivery of possession which could only be done after verification by the Pakistan Railways. In reply to this letter the Divisional Superintendent, Pakistan P always, Lahore wrote letter, dated 30-3-1998 to the Deputy Commissioner, Gujranwala with the following contents:-- "It is intimated that Railway land measuring 9920 sq. Ft. (155' x 64') has been leased out for construction of Jamia Masjid Madina at KM1286/6-7 at Gujranwala City vide Divisional Tracing Plan No,Misc. 1994/ GLCY-1997/ LHR (copy attached) to President Namaz Committee. However, the copy of agreement is also attached please."
' Thereafter the District Magistrate called a report from the local police. The S,H.O./respondent No,6 reported that the land belonged to the Pakistan Railways; that there is no mosque of any other sect in the area and that there was no danger of sectarian violence due td the construction of the mosque, that although the reports of the Railways Authorities were in favour of the petitioners, respondents Nos.2, 3 and 6 went to the spot on the order of respondent No,1, demolished the mosque, took pipes, water . Pump, iron girders, steel iron rods and other material valuing lacs of rupees as well as motor cycles and bicycles of the Namazis. It is further alleged that respondent No,3 removed the iron plate (containing Darood Shari affixed on the wall and threw it on the ground and thus desecrated the, sacred name of Allah and His Last Prophet (p.h.u.h.).
3. Respondents Nos.1 to 3 and to submitted their report and written comments claiming therein that the land belonged to the Provincial Government and that the lease executed by the Railways authorities in favour of the petitioners was "bereft of legal potency", that the petitioners attempted to raise construction on 21-4-1997 which was removed by the then City Magistrate and a case was registered against some persons vide F.I.R. No,250 of 1997 at Police Station Sabzi Mandi. The letter written by the Deputy Commissioner to the Chairman, Railway was admitted but it was clarified that on an application submitted by petitioner No,3, the District Magistrate called a report from respondents No,2 (A.C. Sadar, Gujranwala), who marked the same to respondent No,3 (Illaqa Magistrate, Gujranwala), who obtained report from the S.H.O. The facts stated in paras. 11 and 12 of the petition were denied with the assertions "no mosque ever existed on the site". In reply to para. 14 it was averred:-- "That the application of petitioner No,3 for the grant of N.O.C. For the construction of mosque was placed before District Mosque Committee on 18-11-1998 and it was observed by the District Mosque Committee that construction of this mosque at the proposed site may create sectarian tension as the lease allowed by Railways illegally was agitated by other sects. The District Mosque Committee, therefore, decided that no construction of any kind should be raised at the proposed site in order to ensure sectarian harmony and petitioner No,3 agreed to the point. The petitioners in violation of the above decision of the District Mosque Committee, between the night of 25/26-11-1998 tried to raise structure unatuhorisedly. On receiving agitation calls of opposite sects and residents of the area, respondents Nos.2, 3 and 6 reached the spot at 11-00 p.m. And asked the petitioners to stop unauthorised construction. The petitioners instead of responding positively to the lawful direction of respondents Nos.2, 3 and 6, started raising objectionable slogans and instigated the public gathered there to take law in their hands. Therefore, a case F.1.R. No,596 of 1998 under section 161/162, P.L.G.O. And 16, M.P.G. Was got registered at Police Station Sabzi Mandi and 12 persons were apprehended on the spot while the remaining managed to escape. The construction material was also taken into possession vide recovery memo. The remaining averments are incorrect."
' In reply to the various grounds it was asserted that no mosque existed at the spot, therefore, there was no question of demolishing it. It is also submitted that the construction of the mosque was neither approved by the District Mosque Committee nor its site plan was approved by the Municipal Committee, Gujranwala.
4. The petitioner's learned counsel strenuously urged that originally the petitioners and residents of the locality had started using the disputed plot for offering prayers; that the plot belonged to the Federal Government/Pakistan Railways and was formally leased out to the Namaz Committee/petitioner No,1; that the construction raised thereon was regularized by the Chairman, Railways; that on creation of one Unit the Railways became the provincial subject and its properties were mutated in favour of the Provincial Government but after the dissolution of One Unit the subject again became Federal and the properties were ordered to be mutated in the name of the Central Government, that in most of the cases mutations were entered in favour of the Central Government or the concerned department but in case of the disputed property the needful was not done; that the mere fact that the mutation stood in the name of the Provincial Government did not change the legal position because after the break-up of one Unit the properties vested in the Central Government by operation of the law and change of mutation was only a formality; that it is wrong to say that no mosque existed at the spot or that the petitioners had merely attempted to occupy the disputed site for raising the construction thereon; that construction had already been raised which was regularized by the competent authority; that there is no legal requirement to obtain N.O.C. From the District Magistrate, at any rate, after the report submitted by the Chairman, Railways and the S.H.O. Concerned, the District Magistrate ought to have granted N.O.C. In routine; that he had no lawful authority to demolish the mosque; that the building plan, even if not sanctioned, did not authorise the District Magistrate or for that matter the A.C., Ilaqa Magistrate and the S.H.O. To demolish the structure/mosque; that in this connection action could have been initiated by the Administrator, Municipal Committee, Gujranwala; that respondents Nos.1 to 3 and 6 are bound to return various articles taken into possession from the spot.
5. The learned Legal Advisor for the Pakistan Railways has fully supported the contentions raised by the petitioner's learned counsel. He elaborately explained that the subject of Railways was a Central subject from the year 1935 when the Government of India Act, 1935 was enforced; that the same position continued under the Constitutions of Pakistan, 1962 and 1973; that only for a short period when One Unit was created in the year 1970, the subject of Railways became Provincial but with the liquidation of One Unit it again became the Central Subject; that at the time when the land was leased in favour of petitioner No,1, the Railways and its properties was a Central Subject and the Chairman Railways had competently leased out the land to petitioner No,1 and regularized the construction raised thereon; that the Provincial Government or for that matter the District Magistrate had no lawful authority to meddle with the matter and demolish the construction raised at the disputed site. The learned A.A.-G. Addressed arguments on behalf of respondents Nos.1 to 3 and 6. She urged that Khasra No,2098 measuring 89 Kanals belongs to the Provincial Government; that out of this land an area measuring 22 Kanals was mutated in favour of the Municipal Committee, Gujranwala vide Mutation No,69561: that out of the said area Pakistan Medical Association purchased two Kanals of land on 12-3-1989; that in respect of the said land a civil suit is pending between the Pakistan Railways and the P.M.A. In the Civil Court Gujranwala; that the District Namaz Committee was formed in the year 1992 which decided that no mosque could be constructed without obtaining N.O.C. From the Municipal' Committee; that in the meeting held on 19-11-1998 Imran Qadri, petitioner No,3 was present and had agreed that the mosque could not be constructed without obtaining N.O.C., that the petitioners twice attempted to occupy the disputed plot forcibly, whereupon two criminal cases were registered vide F.I.R. No,250 of 1997 and F.I.R.
No,596 of 1998; that no mosque was constructed on the site and that the action taken by respondents Nos.1 to 3 and 6 was in accordance with the law.
6. The first question requiring examination is whether the disputed land bearing Khasra No,2098 min., G.T. Road, Gujranwala belongs to the Central Government/Pakistan Railways or the Provincial Government. The subject of Railways and its properties remained the Central Subject from 1935 up to 1970. With the creation of One Unit, the Railways were bifurcated into East Pakistan Railways and West Pakistan Railways. This necessitated transfer of the subject to the Provinces. The needful was done and resultantly the Railways properties became Provincial. Accordingly, mutation in respect of Railways' properties including disputed Khasra No,2098 were made in favour of the Provincial Government but this position continued for a short time till 13-3-1970 when One Unit was dissolved through P.O.! Of 1970. This order put an end to rights of Provinces qua Railway properties, hence Railway properties were to be mutated in favour of the Pakistan Railways throughout the country. It was done in respect of a large number of Railway properties but by mistake, mutation qua the disputed property continued to remain in the name of the Provincial Government. The Board of Revenue issued Notification dated 12-6-1989 (annexed with C.M. No,2 of 2000) at page 6 directing that the properties of the Central Government be mutated in favour of the Central Government, keeping in view the Jamabandi for the year 1975.. Legally, the rights of the Provincial Government in West Pakistan as well as East Pakistan came to an end with the enforcement of P.0.1 of 1970 with effect from 13-3-1970. The mere fact that the mutation in respect of the disputed plot continued in the name of the Provincial Government will not make any difference because the said mutation had lost its legal efficacy with effect from 13-3-1970 and put an end to rights and interests of the Provincial Government in the entire Railway land including Khasra No,2098. The disputed plot stood vested in the Central Government/Railway Authorities which could competently deal with it in any manner it liked. The District Magistrate/respondent No,1 as well as the A.C. Ilaqa Magistrate, respondents Nos.2 and 3 had no lawful authority to interfere in the petitioner's possession over the plot or demolish the constructions raised by them.
7. The next question is as to whether the land was permanently dedicated for the purposes of construction of a mosque and whether the disputed plot became a mosque on the basis of the lease deed (Annexure "B"). The answer to this question necessitates close scrutiny of the conditions of the lease which are reproduced below for ready reference:--
(a) That the Railway Administration may withdraw the permission at any time its leases and without notice and, notwithstanding previous waiver, if any will withdraw such permission in the events of any behaviour on the part of the Muslim staff; which in the opinion of the Railway Administration makes it desirable to discontinue the licence; and, without prejudice to the venerability of the above mentioned provisions, it is hereby further stipulated;
(b) that the site may be changed or permission withdrawn in the event of the land specified hereinbefore being required by the Railway Administration for any purpose at any future time;
(c) that the plot licensed shall be used as a plan uncovered and unembellished praying space only and no addition or alteration to construction of any kind thereon shall be allowed;
(d) that no expenditure whatever is caused to the Railway Administration either by the erection or demolition of the praying space;
(e) that the Railway Administration will be at liberty to demolish and remove the praying space and utilize the Railway land for other purpose as it may deem fit. The licensees and the Muslim staff or another person shall not be entitled to any compensation whatsoever in respect of such resumption, removal, demolition or use the Railway Administration;
(f) the Namaz Committee or any one else is not allowed to use any portion of the licensed land for commercial/ residential purposes.
' A bare reading of the above-referred conditions makes it clear that the land was not permanently dedicated for a mosque. It was provisionally allowed to be used as praying space and the Railway Administration reserved the right to withdraw the permission, demolish the praying space and use the land for any other purpose deemed fit by it. Therefore, it was a temporary arrangement to enable the petitioners and other residents of the locality to use the disputed site for offering prayers but it did not authorize them to convert the plot into a permanent mosque. The material on the record shows that initially the petitioners had started using the site for offering prayers without permission of the Railway Authorities but they succeeded in having the plot leased in their favour with effect from 15-8-1997. The petitioners being in physical possession of the plot raised some construction thereon, which was regularized by the Railway Administration vide letter, dated 18-8- 1997 (Annexure "C"). The letter was accompanied by a ferro copy of the site plan which showed an area of 155" x 64" (9920 sq. Ft.) to be the proposed site of mosque. The same plan indicates the land encroached by the Punjab Medical Association. The petitioners have placed on record photographs of the mosque which show a boundary wall with a board containing the name "Jamia Masjid Madina". After demolition the Malba is shown in photographs placed on the record as Annexures H, H/1 and H/2. It is evident from the record that the petitioners had started using the leased premises for offering prayers; that they had raised some construction thereon which was regularized by the Railway Administration; that the construction was in the nature of a temporary arrangement liable to be removed at the discretion of the Railway Authorities in accordance with the terms of the lease agreement referred to above and that the construction was pulled down at the behest of respondents Nos.1 to 3 and 6.
8. Coming to the question whether the District Magistrate or for that matter the Assistant Commissioner, Ilaqa Magistrate and the S.H.O. Had any authority to interfere in the petitioner's possession and demolish the construction existing at the spot, the answer is in the negative. The disputed land vested in the Central Government/The Pakistan Railways and the Provincial Government or the District Magistrate as well as the A.C., Illaqa Magistrate and the S.H.O. Had no lawful authority to interfere in the petitioner's possession or pull down the construction existing at the site. Even if it is assumed for the sake of argument that the land belonged to the Provincial Government, there was no decision by the Provincial Government to demolish the structure raised at the disputed site or to take any action against the petitioners. No law has been cited before me to show that N.O.C. From the District Magistrate is to be obtained before construction of a building.
Even in the comments submitted by respondents Nos.1 to 3 and 6 no reference has been made to any legal provision regarding requirement of obtaining NOC from the District Magistrate. The permission granted by the Railway Administration for use of the plot as a praying space clothed the petitioner with the right to use it for the said purpose and raise construction thereon with the permission of the Railway Authorities. The petitioner obtained ipso facto permission regarding construction of the mosque when the construction raised by them was regularized by the Railways Authorities vide Letter No,671-W/GLCY/97/ WC-4, dated 18-8-1997. The Railway administration, the District Magistrate, the Assistant Commissioner, the Ilaqa Magistrate and the S.H.O. Had no legal right or authority to interfere in the petitioner's possession in any manner and pull down the construction raised by them. In the comments, respondents Nos.1 to 3 and 6 have admitted that they have taken into possession a number of articles including building material mentioned in the recovery memo. They are bound to return the same to the petitioners immediately.
9. For the foregoing discussion, the petition is partly accepted and it is declared that the disputed site lawfully stands leased out in favour of the petitioners in accordance with the terms of the lease agreement, dated 15-8-1997; that the petitioners are entitled to use the disputed site for offering prayers and raise construction in the shape of a mosque as permitted by the Railway Authorities; that the act of respondents Nos.1 to 3 and 6 in interfering in the petitioner's possession and demolishing the structure which existed at the spot, is without lawful authority and of no legal effect. Respondents Nos.1 to 3 and 6 are further directed to return the various articles taken into possession by them on the basis of the recovery memo. If any article belonging to any Namazi is not mentioned in the recovery memo. The aggrieved person may file a suit in a Court of competent jurisdiction for redressal of his grievance. It may be observed at the end that respondents Nos.1 to 3 and 6 illegally interfered in the petitioners' possession, pulled down the construction, took into possession the building material and in this way caused great loss, hardship and mental torture to the petitioners. Therefore, they are burdened with cost of Rs,1,00,000 payable by respondents Nos.1 to 3 and 6 jointly or severally.