P L D 2021 Lahore 735 (PLP)

MUHAMMAD QASIM KHAN, C.J.

In continuation of order dated 04.02.2021, the matter with regard to shortage of graveyards proportionate to the number of people residing in Lahore as also improper maintenance and inadequate facilities is being taken up separately.

2. History of the matter in precise is that during the course of proceedings of the instant writ petition wherein the issue of violations being committed in establishing new housing societies within the jurisdiction of Lahore Development Authority (LDA) has been highlighted and it was emphasized that while allowing establishment of such societies the very basic ingredient of allocation of space for graveyards is being deliberately overlooked/ignored in connivance with the concerned officials of government departments. Hence, notices were issued to the respondents.

3. Before proceeding further it is very relevant to mention here that the divine religion of Islam bestows a noblest stature upon the human beings. His importance and rank is such that Allah Ta'ala has created the entire universe for his sake and made subservient to man all forces of nature. Human dignity is a right given by Allah (Almighty) to all humans and our religion grants certain rights to humans before they are even born and others after their death. The burial of the deceased is a collective obligation (farz-e-kafaaia) on the Muslim community. Because of its character as collective obligation, the entire Muslim community will be guilty if a Muslim body is not buried in the vicinity in a befitting manner, unless the burial was beyond their knowledge or capacity. The respect for corpses is so rooted that even it has been made obligatory for Muslims to deal gently with the bodies of their enemies. The last Prophet Hazrat Muhammad ( ) advised His Followers not to mutilate the dead bodies and said:- "O people! I charge you with ten rules; learn them well... for your guidance in the battlefield! Do not commit treachery, or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone."

4. There is no denial to this fact that dignity is the most sacred belonging and most valuable asset of every person regardless of his social or economic status in life and, therefore, one should never be deprived of the same, save in accordance with law. Similarly and more importantly, the right to dignity of a person not only remains intact when his connection with the thread of life disconnects but by that moment, his right to dignity gets more emphasized and it becomes more necessary to ensure that the right to a dignified burial according to the religion of the person must be ensured and not violated at any cost. To uphold the dignity of a dead person, it is the duty of state to ensure provision of an appropriate place for burial and this responsibility is either to be discharged by the State itself through its local government bodies or departments. At the same time, in cases of private housing societies established under the relevant laws and regulations etc., it is still duty of the Government to ensure that provision of appropriate place for graveyard in every such housing society is left to meet the requirements of the population.

5. A cursory glance of the laws and regulations relating to such requirements in a Private Housing Society makes it abundantly clear that it is mandatory requirement for establishing a housing facility on private basis to make sure availability of appropriate and sufficient area for graveyards. Section 13(6)(c) of Lahore Development Authority Act, 1975 laid down the requirement of transfer of land in the name of Authority, which is reserved and allocated for the graveyard. The relevant provision is reproduced below for the sake of ready reference:-

13. Preparation of Schemes.- (1) [(6) In case of a private housing scheme, the Authority may grant approval subject to the following conditions:- (a) mortgage of twenty percent plots of the scheme with the Authority against development and clearance of all kinds of default under applicable laws, rules and regulations; (b) transfer of minimum fifty percent area of public building sites in the name of the Authority up to a maximum of two percent of the scheme area; (c) transfer of land falling under roads, parks, open spaces, graveyards or other such services in the name of the Authority; (d) such other conditions as may be prescribed.] Similarly, Regulation 8(2)(g) of Lahore Development Authority Private Housing Schemes Rules 2014, which are framed under section 44 of the Lahore Development Authority Act, 1975 while dealing with submission of housing scheme laid down the requirement of submitting proposed division of scheme including place reserved for graveyard.

6. It is worth mentioning that Private Housing Societies established by virtue of legislation Defence Housing Authority also have codal and regulatory framework making it mandatory to establish and upgrade graveyard for the residents of the society. Regulation 53 of the Defence Housing Authority Construction and Development Regulations, 2007, applicable to the whole area controlled by the Defence Housing Authority Lahore, read as under:-

53. Graveyard a. The Authority shall have the exclusive powers to develop, maintain, protect, up grade and to make proper maintenance and administration of the Graveyard, for the welfare and facility of the resident Registered Persons only. b. The corpse of the Registered person, their spouses, parents and dependent children can be buried in the graveyards managed and maintained by the Authority whereas in exceptional circumstances the corpse of another person may be allowed to buried with the permission of the President DHA only. Similar is the position with reference to Regulation 56 and Regulation 57 of Defence Housing Authority Construction and Development Regulation 2014, applicable to the Specified as well as Notified Area of Defence Housing Authority Lahore.

7. It is thus evidently clear that allocation of proper and appropriate space for graveyard is essential requirement for every housing society to which laws, mentioned supra are applicable, however, unfortunately these explicit requirements are being willfully ignored. It is also worthwhile to note that the Punjab Shehr-e-Khamoshan Authority Act 2017 (hereinafter to be referred as 'the Act 2017'), was enacted for the whole province of Punjab and as per Section 27 thereof, the said Act is in addition to any other law in force on the subject, thus an exclusive piece of legislation enacted to provide to the public cemetery services, funeral services, crematory services and to deal with ancillary matters in the province. Section 6 of the Act 2017 postulates powers and functions of Punjab Shehr-e-Khamoshan Authority (hereinafter to be referred as 'the Authority') established under Section 3 of the Act 2017. The functions of the Authority are comprehensive and include construction, maintenance and monitoring of cemeteries, prevention and removal of encroachments thereon. Section 20 of the Act 2017 further empowered the Authority to acquire land to carry out the purposes of the Act under the Land Acquisition Act, 1894. The above referred legislative reference further solidify the responsibility of State, the Government, Local Authorities and Private Housing Societies to ensure availability of appropriate place for graveyard so that a person, whose right to dignity is inviolable under Article 14 of the Constitution must have a decent and dignified farewell on the journey to his eternal abode as the fundamental right of dignity didn't vanish or go away with the passing but remain intact till appropriate burial according to religion/custom takes place. However, the Court has been apprised that till today the Authority to be formed under Section 3 of the Act 2017 has not been established as yet.

8. For this purpose notice was issued to Chief Secretary, Government of the Punjab. He was confronted with the upcoming challenges on the subject and was directed to take on board all the concerned stakeholders. During the course of proceedings report was submitted on behalf of the Government of Punjab that four new graveyards have been established in the four corners of the city of Lahore to cope with the upcoming necessities. It is an open secret that though officials have been deputed to look after the affairs of graveyards, however, either their strength is insufficient to cater with the requirements or they are not skillful enough or proper funds and facilities have not been provided.

9. It is quite unfortunate that although proper legislation on so many aspects including the one referred above i.e. Punjab Shehr-e-Khamoshan Authority Act, 2017 exists but after legislative work further crucial steps to effectuate such legislation are not taken. Thus, practically the laws/rules remain redundant for the fault of concerned government authorities, whereas general public: the direct beneficiary of such legislation, keeps on suffering the miseries because of pure inaction on the part of the administrative wings, responsible to implement and effectuate such legislations. Hence a direction is issued to Government of the Punjab to immediately establish Punjab Shehr-e-Khamoshan Authority in the spirit of section 3 of the Act 2017 without fail. The Authority so constituted shall take all possible steps to run/manage the affairs of the graveyards as provided under section 6 of the Act 2017. It is also a matter of concern that in our country the number of on job people with reasonable pay is too low while on the other hand the number of persons with less means/jobless is too much. It is apathy that in case of sad demise of any of the family members, it becomes very difficult to make arrangements for burial of the dead body, which in present scenario costs too much. It is also an admitted fact that every person, no matter how much poor he is, while purchasing every day grocery articles from market pays some taxes to the government. At the end of the day on his death, it is the duty of the government to come forward and spend small penny upon his burial. Hence, a direction is issued that necessary amendments must be made in the Act 2017 and a body shall be set up for every graveyard to whom the representatives of poor people may contact for burial of the dead bodies free of cost (from arranging shroud for the dead body, its transportation towards the graveyard, cost of excavating the grave if any and burial, etc). It shall make all necessary arrangements in this regard and the expenditure occurred shall be born out by the body so established. It is pertinent to mention here that in United Kingdom proper legislation on this aspect has been made known as "Public Health (Control of Disease) Act 1984" and as per Section 46 thereof, it is the duty of the local authority to cause to be buried or cremated the body of any person who has died. Similar mechanism has been devised by South Africa in the form of "Burial or Cremation of Destitute Person (Policy Number 40504)" while in Scotland "Burial and Cremation Act (Scotland) Act 2016" has been promulgated. Hence, on the analogy of above foreign enactments, it is directed that necessary legislation shall be made by the provincial legislature on this aspect. This Court is cognizant of the fact that despite proper legislation, government may not be in a position to spare/allocate sufficient funds to effectuate such legislation. Hence, it is further directed that charitable bodies/personalities/institutions/unions like APTMA, Chamber of Commerce and Industry, Anjuman Tajran and individual businessmen may also be taken on board for this pious cause. The Government shall also ensure that two model graveyards on the pattern of Lahore City shall be established firstly each in Faisalabad, Multan, Gujranwala and Rawalpindi and thereafter such beneficial exercise must be extended to other big cities of Punjab. Moreover, the graveyards must be properly managed and looked after. In this respect the concerned body assigned the task must sort out the possibility that each grave shall be numbered, registered in the record for future reference, plantation be carried out, adequate sitting and allied facilities (water tabs, shed along with seats at proper spaces) be arranged/provided to the visitors of graveyard.

10. Before parting with the order this Court deems it essential to appreciate the assistance rendered by learned amicus curiae, which resulted in passing an order that will definitely be helpful for the government to chalk out policy on the subject for the welfare of destitute citizens of the province. MH/M-155/L Order accordingly.