2003 PLP 1718 (CLC)

S. 6

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Encroachment on land of graveyard

Petitioner's grievance was that Lahore Graveyard Committee was reluctant to initiate proceedings against encroachers on his complaint

High Court directed Committee, Municipal Corporation, Provincial Government and Inspector-General of Police to perform their duties in accordance with law keeping in view provisions of Punjab Local Government Ordinance, 2001 and Miani Sahib Graveyard Ordinance, 1962 and initiate civil as well as criminal proceedings against encroachers. Civil Petition for Leave to Appeal No.305 of 2002 ref. Dr. Hameed Ahmad Ayaz for Petitioner. M. Hanif Khatana, Addl. A.-G. for Respondent No.

1. Kh. M. Afzal, Legal Adviser, for Respondent No.2. Date of hearing: 29th May, 2003. The petitioner submits that he has moved various applications before respondent No. 1 but it did not take action against the encroachers. He further submits that it is obligation of the public functionaries to perform duties in accordance with law. Learned counsel for respondent No. 1 submits that this writ may be treated as public interest litigation as the land of graveyard has already been encroached by various people without any justification. He has relied upon an unreported judgment of the Honourable Supreme Court in Civil Petition for Leave to Appeal No.305 of 2002, dated 17-12-2002 wherein the Committee has initiated proceedings against the Ex-Chairman of the Committee and the action of the respondent No.1 was upheld. Kh. Muhammad Afzal, Legal Advisor of respondent No.2 submits that in case respondent No.1 forwards the case of the petitioner to respondent No.2 then respondent No.2 shall take action against the encroachers in accordance with law. Learned Additional Advocate-General submits that Lahore Graveyard Committee has been constituted under the provisions of Miani Sahib Graveyard Ordinance. 1962. The Committee is duty bound to initiate proceedings against the encroachers and also secure help from respondent No.2.

2. I have given anxious consideration to the contentions of the learned counsel for the parties and have perused the record minutely.

3. Learned counsel of respondent No.1 has prayed to convert this writ petition into public interest litigation which has no force, It is duty and obligation of the public functionaries to act in accordance with law as envisaged by Article 4 of the Constitution. Our Constitution is a social binding between the following parties i.e., Legislature; executive, judiciary, citizens. Our Constitution is based on trichotomy of power. Court has only jurisdiction to interpret the law and has no jurisdiction to take the role of Legislature or policy-maker as per law laid down by the Supreme Court in the following judgments:-- (1) Zia-ur-Rehman and others' case PLD 1973 SC 49 and (2) Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473.

4. Supreme Court has prescribed the duties of the public functionaries in Shaukat Ali's case PLD 1997 SC

342. The relevant observation is reproduced as under:-- "We may observe that since- Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concepts of fair-play and social justice. The State functionaries like Railways are expected to act fairly and justly in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly."

5. Subsequently, the Honourable Supreme Court after interpreting section 24(A) of General Clauses Act laid down principle that public functionaries are also obliged to act justly and fairly in accordance with law without any element of discrimination and. squarely within the parameters of law in Messrs Airport Support Services' case 1998 SCMR 2268. In this view of the matter respondent No. 1 is directed to process the case of the petitioner in accordance with law and shall initiate proceedings against the encroachers in accordance with law. Respondent No. 1 is further directed to forward the application of the petitioner to respondent No.2 so that the respondent No.2 shall proceed against the encroachers and take action in accordance with law. In view of the circumstances copy of the order alongwith writ petition and report of parawise comments be sent to the Chief Secretary, Government of Punjab and Inspector-General Police who are also directed to give directions to the concerned quarters to perform their duties in accordance with law, keeping in view the provisions of Punjab. Local Government Ordinance, 2001 and Miani Sahib Graveyard Ordinance, 1962 so that the competent authorities shall observe the provisions of the aforesaid laws and initiate proceedings against the encroachers, civil as well as criminal, in accordance with law. The learned Law Officer is directed to notify the order-to the Chief Secretary and Inspector-General of Police for necessary action and information. With this observation this writ petition is disposed of. S.A.K./Y-27/L Order accordingly.