2010 PLP 1866 (YLR)

IJAZ AHMED, J.

The facts leading to the filing of this constitutional petition are that the petitioners and some co-sharers gifted a piece of land measuring 39 Kanals and 9 marlas to Government of the Punjab for the construction of a Government High School at Kandwaal. It is asserted that the pre-conditions of a gift that is offer, acceptance and handing over the possession were completed and Mutation No.2166 wherein, the purpose of the gift that is construction of the Government High School at Kandwaal, has been specified, was sanctioned on 8-6-1979. Later on, the T.N.T. Department succeeded by the PTCL, occupied two kanals of land out of the above mentioned land, constructed a building over it and installed the machinery required for a Telephone Exchange System. The occupation of two kanals of land; construction of building over it and installation of the machinery are not denied by the parities. The Government of the Punjab, vide Mutation No.3160 sanctioned on the 27th of December 2003, transferred three kanals out of the above said land to the Police Department, which started constructing a building for the purpose of patrolling post. However, the construction was stopped because of an injunction order passed by this Court vide order dated 30-5-2007.

2. It is contended by the learned counsel for the petitioners that the petitioners had gifted the said land for a specific purpose; and that the same could not be used for an other purpose, howsoever useful it be.

3. The learned consul for respondent No.6, the PTCL, contends that the inhabitants of the locality including the petitioners have since long been enjoying the services rendered by the department through the disputed Exchange facility; that they, by their acquiescence, are now estopped to institute the present petition; that the case is badly hit by the principle of laches; that the instant constitutional petition is not maintainable against the said respondent. The learned counsel further contends that as per averments of the petition some more land is available that can be used by the petitioners for the construction of the school.

4. The learned A.A.-G. has appeared on behalf of the respondents Nos.3 to 5 and

7. He contends that the Police Department is meant for watch and ward duty and the activities relating to control of crimes. It provides protection to the citizens of Pakistan. The functions of this depart ment are not less important than that of imparting education. He further contends that an earlier writ petition, filed on the same subject matter, has already been dismissed.

5. I have heard the learned counsel for the parties and have also gone through the record. Mutation No.2160 sanctioned on 8-6-1979 transpires that the land measuring 39 kanals and 9 marlas was gifted by the petitioners and others to the Government of the Punjab, specifically for the construction of the school. The learned counsel for the parties admit that despite the elapse of almost thirty-one years, no such school has been constructed so far. But this fact hardly furnishes a valid ground to the respondents for criminally trespassing into the gifted land and for usurping the same. A vacant land lying for some useful purpose cannot be utilized for an other purpose. Such land even if left unused by inaction for decades or even for centuries would be utilized by the succeeding generation. An open space, once lost, cannot be recreated. It is like a page of History which if once torn away, cannot be replaced. If the respondents are allowed to exploit this space, the noble purpose of gift as well as the sentiments that motivate the people to part with their own land for such sacred cause will die forever. Neither the new land can be created nor can the dead sentiments of sacrifice be reanimated. As far as the point of maintainability of this petition, raised by learned counsel for respondent No.6/PTCL is concerned the said department is performing its duties relating to the affairs of the Federation. The acts of the said respondent are amenable to the constitutional jurisdiction of this Court. As far as the usefulness of the respondent departments is concerned, it is not denied. Both the said departments only provide certain facilities to the public but the emancipation, resurrection and galvanization of the society have their roots in education. Education is the need and call of the day. Facility should give way to the need. The Government of the Punjab can, if so desires, acquire the land under the relevant Provisions of law for the respondent departments. If the departments start usurping the lands gifted for other purpose, it will proliferate the lawlessness that spreads like a contagious disease. The deprave acts of respondents Nos.4 and 6 of usurping the gifted land cannot be allowed to perpetuate. The same are declared illegal and set at naught. Since the act of the respondents of usurping the land gifted for the specific purpose is illegal, the elapse of any length of period does not constitute laches. The respondent No.6/PTCL had constructed the building without any permission, so any loss that might accrue to it by this order, would be deemed to have been voluntarily sought by it. Respondent No.6 is directed to remove its machinery within a month form the issuance of this order leaving the building intact for utilization by the inhabitants of the locality for the purposes of construction of the school for imparting education. Any damage done to the building by the said respondent will be treated as an act of plundering of the public property and will be meted out in accordance with law. The Police Department is also directed to hand over the possession of the premises to the petitioners at the earliest without removing even a brick from the site. The D.C.O., the Executive District Officer (Revenue) and the Executive District Officer (Education), Jhelum are directed to facilitate and ensure that the land in question is used for the establishment of a campus in the public sector. The E.D.O. (R) should take steps to ensure the cancellation of Mutation No.3160, sanctioned on the 27th of December 2003, within a period of two weeks. The aforesaid functionaries shall also submit report with regard to the steps taken by them to the Deputy Registrar (Judicial) of this Court.

6. The constitutional petition is accepted. M.H./B-8/L Petition allowed.