2024 PLP 1096 (MLD)

Qaiser Rashid Khan, CJ.

Through this single judgment, we propose to decide the present Writ Petition No.1057-P/2018, titled Irfan Saleem v. Government of Khyber Pakhtunkhwa etc. and the connected Writ Petition No.350-P/2019, titled Chairman Evacuee Trust Property v. Government of Khyber Pakhtunkhwa etc. as common questions of law and facts are involved in both the petitions.

2. Irfan Saleem, through Writ Petition No.1057-P/2018, expresses his grievance over the existence of a Fun Land / family park at the historical / archeological site i.e. `Panj Teerath' adjacent to the Chamber of Commerce, Peshawar city, which is practically turning into ruins being used as a garbage bin. Likewise, the Evacuee Trust Property Board, the petitioner in the connected Writ Petition No.350-P/2019 (hereinafter called as the respondent-Board) also expresses its own grievance over the notification bearing No.SO(Arch)4- 60/2012 dated 18.12.2018 and letter No.283/A-116/Archymus dated 07.01.2019 whereby not only the monument i.e. Panj Teerath measuring 14 Kanals and 7 marlas has been declared as important / protected antiquity but its possession has also been asked from the Deputy Commissioner, Peshawar by the Archeology and Museums Department for conservation and restoration.

3. We have been dealing with these matters for quite some time and have accordingly issued several directions to the concerned quarters from time to time. At this stage, it would be more apt to reproduce the relevant order sheets, reflecting the entire picture of the case, which read as follows:- 29.11.2022 Keeping in view the controversy involved in the matter, the learned counsel for the Evacuee Trust Property is directed to come along with the Administrator and Deputy Administrator of the said department to let us know as to in what manner permission has been granted for running a fun land / children park at the historical / archeological site adjacent to the Chamber of Commerce, Peshawar city. 30.11.2022 In continuation of the previous order sheet, to determine the issue as to whether in the existence of the fun land / children park at the historical / archeological site i.e. Panch Teerat' adjacent to the Chamber of Commerce, Peshawar city, the visitors can have free and easy access to the site, Mr. Ali Gohar Durani, Advocate is put notice in the case, nominated as a Focal Person and is in turn directed to visit the site in the company of all the stakeholders tomorrow and thereafter submit his visit report by making suitable proposals and suggestions well be before the next date of hearing. 21.12.2022 Pursuant to the directions of this court dated 30.11.2022, Mr. Ali Gohar Durrani, Advocate / Focal Person by producing the desired detailed report (placed on file) states that the temple is in a worst condition having no accesss route / passage from any side and presently it is being used for garbage dumping eurpose by the fun park administration and moreso, the authorities of the Evacuee Trust Property after constructing houses over there have rented out the same to different tenants. Being so, Mr. Muhammad Yousaf Khan Niazi, Deputy Director, Evacuee Trust Property is directed to immediately remove the entire garbage from the site and submit proper report in this regard duly supported by the latest photographs of the site / temple. Mr. Ali Gohar Durrani, Advocate / Focal Person is directed to overseessuch exercise. 22.12.2022 Yesterday, keeping in view the report of Mr. Ali Gohar Durrani, Advocate / Focal Person duly supporetd by photographs reflecting as to in what manner the structure of the temple has been practically turned into ruins and presently is being used as garbage bin, we directed Mr. Muhammad Yousaf Khan Niazi, Deputy Director, Evacuee Trust Property Board to immediately remove the entire garbage from the site and submit a proper report in this regard duly supported by the latest photographs of the site / temple. Pursuant thereto, he after doing the needful has submitted the latest photographs of the temple (placed on file).

2. Though, we wished to order for handing over the possession of the property to the Archeology Department for its restoration as per the suggestions, so made in the ibid report by the Focal Person, but we have been informed by the learned counsel of the Evacuee Trust Property Board that such property belongs to them where houses have been constructed which have then properly been rented out to the tenants who had earlier illegally occupied the same. We wonder as to in what manner the valuable government property has been occupied by some individuals, which speaks volumes about the sorry state of affairs of the high ups of the evacuee Trust Property Board, who initially did not take interest in their property and instead of taking it back from the illegal occupants, they rented it out the same to them and thereby committing even a graver illegality. On account of such horrible state of affairs of the Board, we would certainly wish to have the personal attendance of its Chairman to let us know as to what is happening under his watchful eyes and why the things are not going in the right directions since he has assumed the office. Both, the learned counsel for the Evacuee Trust Property Board and the Deputy Director are directed to ensure the presence of the Chairman on the next date of hearing. In the event of failure, the law shall take its course.

3. The Deputy Director, Evacuee Trust Property Board is in the meanwhile directed to forthwith issue notices to the tenants for the vacation of the houses. Necessary progress report be shared with us well before the next date of hearing. 12.01.2023 On the previous date of hearing, keeping in view the controversy involved in the matter, we had issued the following directions: - Yesterday, keeping in view the report of Mr. Ali Gohar Durrani, Advocate / Focal Person duly supported by photographs reflecting as to in what manner the structure of the temple has been practically turned into ruins and presently is being used as garbage bin, we directed Mr. Muhammad Yousaf Khan Niazi, Deputy Director, Evacuee Trust Property Board to immediately remove the entire garbage from the site and submit a proper report in this regard duly supported by the latest photographs of the site / temple. Pursuant thereto, he after doing the needful has submitted the latest photographs of the temple (placed on file).

2. Though, we wished to order for handing over the possession of the property to the Archeology Department for its restoration as per the suggestions, so made in the ibid report by the Focal Person, but we have been informed by the learned counsel of the Evacuee Trust Property Board that such properly belongs to them where houses have been constructed which have then properly been rented out to the tenants who had earlier illegally occupied the same. We wonder as to in what manner the valuable government property has been occupied by some individuals, which speaks volumes about the sorry state of affairs of the high ups of the Evacuee Trust Property Board, who initially did not take interest in their property and instead of taking it back from the illegal occupants, they rented it out the same to them and thereby committing even a graver illegality. On account of such horrible state of affairs of the Board, we would certainly wish to have the personal attendance of its Chairman to let us know as to what is happening under his watchful eyes and why the things are not going in the right directions since he has assumed the office. Both, the learned counsel for the Evacuee Trust Property Board and the Deputy Director are directed to ensure the presence of the Chairman on the next date of hearing. In the event of failure, the law shall take its course.

3. The Deputy Director, Evacuee Trust Property Board is in the meanwhile directed to forthwith issue notices to the tenants for the vacation of the houses. Necessary progress report be shared with us well before the next date of hearing.

2. Pursuant to such directions, the worthy Chairman, Evacuee Trust Property Board (hereinafter called as the Board) is before the court. He has shared with us the details as to how the property in question was earlier the ownership of the Board, which was somehow taken over by the provincial government at a certain point of time and presently again its possession has been handed over to the Board, but at the same time, contract of the children park has been awarded to a contractor, who is paying rent as per terms and conditions of the agreement. Regarding the issue of illegal occupants of the houses of the Board, he adds, that due to long lasting occupancy, the Board is facing some resistance from the occupants insofar as the vacation of the same is concerned. We, in the peculiar facts and circumstance of the case, direct the worthy Chairman of the Board and the worthy Director, Archeology and Museums to sit together and find some via-media in order to resolve this matter amicably by keeping in mind the interests of all the stakeholders. The necessary report in this regard be shared with us well before the next date of hearing. Dr. Abdul Samad, Director Archeology and Museums is hereby appointed as a Focal Person in the case, who will be assisted by Mr. Ali Gohar Durrani, Advocate. 08.02.2023 In continuation of the previous order sheet, while the worthy Director, Archeology and Museums after undertaking a joint visit in the company of the team of Evacuee Trust Property Board has submitted his report, a separate report has also been furnished by the Board (placed on file). Likewise, the worthy Director has also furnished yet another visit report (placed on file) showing that the Board has leased out about 14 kanals and 3 marlas to the leaseholder of the park while 5 kanals area to the tenants. The later part of the said report shows that out of the total area of 28 kanals, the Board is receiving rent of only 19 kanals while the remaining portion is being enjoyed by the lessee / park owner free of cost. As such, proper demarcation of the said spared portion is necessary. Hence, the AAG is directed to come along with the Deputy Commissioner Peshawar tomorrow i.e. 9th instant. 09.02.2023 Yesterday, keeping in view the visit / inspection report of the worthy Director, Archeology and Museums Department reflecting about the sorry state of affairs of the Evacuee Trust Property Board whereby out of the total area of 28 kanals, the Board is receiving rent of only 19 kanals while the remaining portion is being enjoyed by the lessee / park owner free of cost, we thought it fit to call for the personal attendance of the Deputy Commissioner, Peshawar for demarcation purpose. That is how he is before the court.

2. Today, the learned senior counsel for the Board has come up with yet another disclosure that total 38 kanals 18 malars property is the actual ownership of the Board out of which, 12 kanals 08 marlas are being claimed by a private party namely, Ghulam Farooq, who has approached the Hon'ble Supreme Court of Pakistan through CPLA No.2564/2017, which is pending.

3. Anyhow, in the peculiar facts and circumstance of the case, we again direct the worthy Director, Archeology and Museums, the learned senior counsel for the Board and of course the Deputy Commissioner, Peshawar to sit together and find some via media for the preservation of the property for heritage purposes and submit some concert proposals in this regard after doing the necessary measurement of the area. The necessary report in this regard be shared with us well before the next date of hearing. 23.02.2023 Pursuant to the directions of this court, the worthy Director, Archeology and Museums / Focal Person by submitting his progress report (placed on file) states that an understanding has been reached with the Evacuee Trust Property Board and the worthy Chairman has agreed upon to sign an MOU whereafter, the management of Panj Teerath site will be looked after by the Archeology and Museums Department, Khyber Pakhtunkhwa. Being so, we direct the worthy Chairman of the Board to ensure that the necessary MOU is signed at the earliest as the matter has taken a bit too, long. 09.03.2023 In continuation of the previous order sheet, Dr. Abdul Samad, Director Archeology and Museums and Hafiz Ihsan Ahmad Khokhar, Advocate representing the Evacuee Trust Property Board jointly seek time to present a proper MOU after necessary rectification on the next date of hearing. 15.03.2023 We have been informed that Dr. Abdul Samad, Director Archeology and Museums has not signed the desired MOU being aboard, who will do the needful after his return.

4. Today, we have been informed by Messrs Hafiz Ihsan Ahmad Khokhar and Aimal Khan Barkandi, Advocates representing the respondent-Board as well as Dr. Abdul Samad, Director Archeology and Museum Department that the matter regarding the archeological site of Panj Teerath has been amicably settled between them and in this respect a proper Memorandum of Understanding (MOU) has been inked and signed on 08.03.2023 (placed on file) in the following manner:-

1. Background of Memorandum of Understanding. This Memorandum of Understanding (MOU) will establish the basic terms and conditions for making the site of Punj Teerath, Peshawar for its rehabilitation and maintenance of domes as heritage in the public interest jointly by ETPB & DoAM.

2. Aims of Memorandum of Understanding. This Memorandum of Understanding (MOU) is reached for covering organizational mechanism, functioning modalities, management hierarchy, provision of funding and technical assistance and other responsibilities to be agreed upon between Evacuee Trust Property Board and DoAM for smooth functioning in rehabilitation, maintenance and future improvements, if necessary, with both parties concurrence in the project.

3. Organization /Management, Funding and Functioning Structure for Heritage Site of Punj Teerath Peshawar. The land for rehabilitation Site of Punj Teerath Peshawar will be provided, established and jointly managed by the ETP Board and DoAM, whereas, the Archeology Department will provide further technical assistance for preparation, completion, rehabilitation and for maintenance of the site. (Proposed Site plan for heritage is attached). The site will be opened after its rehabilitation to the visitors and property infrastructure would also be provided for visitors' facilitation and entertainment.

4. Expenditures vis- -vis Income. The expenditures incurred on the conservation, restoration, maintenance and functioning of heritage Site of Punj Teerath will be borne by Evacuee Trust Property Board and the income will be deposited accordingly in the ETP Board's Account.

5. Excavation. Archeological Excavation will be carried out where necessary with the concurrence of ETP Board by the DoAM.

6. Responsibilities of Different Entities. i) Responsibilities of ETP Board. ETP Board will provide the land approximately 17-Marla for the heritage site of Punj Teerath, and would also provide support for infrastructure, human resource, security and appropriate funding for the site as technically advised to make the site properly functional for the visitors. The employees to be hired for supervision and management of site will be done jointly by ETP Board and DoAM. ii) Responsibilities of DoAM. The Archeology Directorate will provide full technical support, rehabilitation and maintenance for the Site of Punj Teerath Peshawar to ETP Board as already in practice.

7. General Provisions. Amendments. Any changes, modifications, revision or amendments to this MOU which are mutually agreed upon by and between the parties to this MOU shall be incorporated by written instructions and effective when executed and signed.

8. Applicable Law. The formulation, interpretation and enforcement of this MOU shall be governed by the laws of Pakistan. 9 Regular Inspection Committee for improvement. The Committee comprising the following members will carry out inspection on regular basis (at least once in a quarter) to ascertain any repair / minor maintenance or renovation, if required: 1) I x Representative of DoAM 2) I x Representative of Evacuee Trust Property Board.

10. Entirety of Memorandum of Understandings. This MOU, consisting of three pages, represents the entire and integrated agreement between the parties.

11. Term of MOU This MOU is effective upon the date singed and executed by the duly authorized representative of the parties and the same would be informed to Honourable Peshawar High Court, Peshawar for further closing the proceedings and appropriate orders.

12. Signatures. In witness whereof the parties through their duly authorized representative have executed this MOU on the day and dates set out below, and certify that they have read, understood, and agreed to the terms and conditions as set forth herein.

5. We have been further informed that keeping in view the fact that in the light of the MOU, the Evacuee Trust Property Board has agreed to transfer the possession of the Archeological site of Panj Teerath in favour of the Archeology and Museums Department, the impugned letter bearing No.283/A-116/Arcyhmus dated 07.01.2019 has been withdrawn vide letter dated 13.03.2023 (copy placed on file). Likewise, the issue regarding the other impugned notification bearing No.SO(Arch)4-60/2012 dated 18.12.2018 has also been resolved as both, the Evacuee Trust Property Board and the Archeology and Museums Department have agreed to modify the ibid notification vide letter bearing No.A 116/Archymus/2723-24 dated 13.03.2023 (copy placed on file) whereby the Secretary to Government of Khyber Pakhtunkhwa Sports, Tourism, Culture, Archeology and Museums Department has been requested to re-notify the archaeological site of Panj Teerath only to the extent of 17 Marlas.

6. No doubt, pursuant to the ibid MOU, so executed between the parties, the management of the archeological site of Panj Teerath has now been practically handed over to the Archeology and Museums Department but simultaneously we must reiterate that the Evacuee Trust Property Board would extend every helping hand besides provision of all the desired funds, as and when demanded, to the Archeology and Museums Department for the necessary renovation / repair / rehabilitation of the ancient Hindu Shrine i.e. Panj Teerath. The signatories to the MOU shall strictly abide by the terms and condition, so laid down therein.

7. All the concerned quarters / stakeholders have expressed their full satisfaction over the exercise so undertaken by this court in these matters. We believe that with the passage of time, all the burning / thorny issues have been amicably resolved and nothing is left to further proceed at the moment. Both these writ petitions are disposed of in the above terms along with C.Ms. MQ/226/P Order accordingly.