2019 PLP 616 (CLC)

ALI AKBAR QURESHI, J.

The petitioner through this Constitutional petition contends, that the property consisting of hall, two rooms and verandah, bearing khasra No.6716, situated in the area of Miani Sahib Graveyard, belongs to Shrine Sain Sher Muhammad on the basis of Waqf deed dated 11.01.1941 and is in possession of the petitioner being Mutwalli. Therefore, the respondent-Miani Sahib Graveyard Committee be restrained from interfering into the possession of the petitioner and ongoing constructions related to the Shrine of Sain Sher Muhammad. Further prayed, that the respondent be also directed to issue NOC for approval of map for above said construction.

2. Learned counsel for the petitioner while arguing the case mainly relied upon the waqf deed executed in favour of Sain Sher Muhammad. Learned counsel submits, that the petitioner is not the illegal occupant upon the land of Miani Sahib Graveyard. That the claim of the Miani Sahib Graveyard Committee is baseless, thus, Miani Sahib Graveyard Committee have no concern whatsoever with the land in possession of the petitioner.

3. In response thereof, Messrs Muhammad Maqbool Sadiq and Khalil Ahmad Ali, learned legal advisors of Miani Sahib Graveyard Committee, strongly opposed the arguments raised by learned counsel for the petitioner and submitted, that land bearing Khasra No.6716 vests in the Miani Sahib Graveyard by operation of law as the same was demarcated after inviting objections from the occupants and then was included by the then Martial Law Authorities through a "Press Note" dated 29.04.1962 and subsequently an "Ordinance" in the name of "Miani Sahib Graveyard Trust" on the basis of the revenue record for the year 1856. That thereafter Martial Law-Order No.131 was issued by the Martial Administrator Zone-B on 31.05.1962 reiterating the area of Miani Sahib Graveyard as 1248 kanal 14 marlas and 28 sq.ft. specified in the press note dated 28th April 1962; that the actions of the Martial Law Authorities were declared past and closed transaction and have been protected by the Hon'ble Supreme Court of Pakistan. Therefore the petitioner is illegal occupant over the land of Miani Sahib Graveyard and have no concern whatsoever with the land in question. Reliance is placed on the judgment cited as "Noor Din v. The Chairman, Miani Sahib Graveyard Committee, Lahore" (PLD 1973 Supreme Court 17) and unreported judgments of the Hon'ble Supreme Court of Pakistan i.e. C.P. No.305 of 2002 (Zoraiz Lashari and others v. Miani Sahib Graveyard Committee, decided on 14.01.2003) and C.P. No.1791 of 2017 (Ch. Muhammad Anwar and others v. District Coordination Officer and others)

4. Heard. Record perused.

5. Firstly it is to be seen and adjudged as to whether the land of Khasra No.6716 is either owned by petitioner or by the Miani Sahib Graveyard. It would be appropriate at this stage to give the detail of the legislation made by the then Federal Government relating to preservation and maintenance of graveyards in Pakistan including the Miani Sahib Graveyard, Lahore.

6. In the year 1958 an Act namely "West Pakistan Graveyards (Preservation and Maintenance) Act, 1958" was promulgated in order to maintain the graveyards and the provisions of this Act were made applicable on the Miani Sahib Graveyard Lahore. Section 1(2) of the Act is re-produced as under:- Section 1 . (2) It extends to the graveyard known as the Miani Sahib Graveyard, Lahore, and the government may, by notification, extend all or any of the provisions of this Act, to any other Graveyard in West Pakistan." Thereafter, the then Martial Law authorities issued a "Press Note" on 29.04.1962, demarcated the area of Miani Sahib Graveyard measuring 1248 kanals 14 marla. and 28 sq.ft. The khasra numbers of the demarcated land Were also given in the said "Press Note" by the Marital Law Authorities after going through the relevant revenue record of the year 1856 and having heard objections made on the spot inspection and inquiries. In the said Press Note dated 20.04.1962, the Khasra No.6716 of the property in question is included. Another legislation specifically pertaining to the Miani Sahib Graveyard namely "Miani Sahib Graveyard Ordinance, 1962", was made. Along with the Ordinance a "Schedule" was annexed, wherein the khasra number of the property in question is also included.

7. To decide the lis, it is necessary to see the formation/domain of the Miani Sahib Graveyard Committee in the light of the enactment. The "Committee" and its "Functions" are specifically defined in sections 2(2), 3 and 14 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958 (Act of 1958). It would be beneficial to re-produce the sections 2(2), 3 and 14 o the Act ibid:

2. Definitions.-- (1) (2) "Committee" means a Committee constituted under Section 3 of this Act.

3. Constitution of a Committee

(1) As soon as may be, after the enforcement of this Act, or the extension of all or any of the provisions of this Act, to any graveyard, the Government shall appoint for one or more of such graveyards a Committee which shall consists of a Chairman, and such number of other official and non-official members as may from time to time be specified by the Government.

14. Function of the Committee.

The Committee shall, subject to the control and superintendence of the Government- (1) Protect the graveyard from encroachments ; (2) Maintain the graveyard in a fit and proper condition and take steps to improve it ; (3) Employee and pay such staff as may be necessary ; and (4) Do all such acts and things as may be necessary for the preservation and proper maintenance of the graveyard. As per section 6 of the Act, 1958, any person, who claims to have acquired any title to any land or property may within three months of the date of such notification apply to the Government for the exclusion of such land. Section 6 of the Act, 1958, is re-produced as under:-

6. Application for exclusion of land from the area of graveyard.

Any person who claims to have acquitted any title to any land or property included within the limits defined in the notification issued under section 5, may within three months of the date of such notification, apply to the Government for the exclusion of such land or property from the area of the graveyard. And under section 7 of the Act, a "Tribunal" is to be appointed by the Government to dispose of the applications presented under section

6. Section 7 of the Act is re-produced:-

7. Appointment of Tribunal.

The Government shall appoint a Tribunal consisting of a person who is, has been or is qualified to be appointed as District and Sessions Judge to dispose of the applications presented under Section 6 in accordance with the provisions of sections 8 and 9.

8. The persons, if aggrieved, had to file an application under section 6 of the Act within three months to the Government for exclusion of the land and the same application has to be decided by the "Tribunal" appointed under section 7 of the Act, ibid, and the "Committee" constituted under the provisions of Miani Sahib Graveyard Ordinance, 1962 (Ordinance, 1962) has no concern whatsoever with the inclusion or exclusion of the land in the Schedule. But the predecessor of the petitioner did not file any application to the Government for exclusion of the land in question within the stipulated period in accordance with the afore-referred provisions of law. The Martial Law Authorities in order to demarcate the area of Miani Sahib Graveyard issued a "Press Note" on 29.04.1962, under Martiatl Law Order 48 read with Regulation No.20, giving the khasra numbers of the total area of the Miani Sahib Graveyard measuring 1248 kanals 14 maralas and 28 sq.ft. including the Khasra number pertaining to the property in question. Subsequently, the area mentioned in the Press Note dated 29.04.1962, vested in and became the part of a "Trust" i.e. Miani Sahib Graveyard Trust. The proposition, relating to the status of a property-mentioned in the Press-Note and subsequently in Schedule of Ordinance, 1962, has already been discussed by the Hon'ble Supreme Court of Pakistan in the judgment cited as "Noor Din v. The Chairman. Miani Sahib Graveyard Committee, Lahore" (PLD 1973 Supreme Court 17).

9. Needless to mention, that the Miani Sahib Graveyard as per section 13 of the Act, 1958, is a "Trust" and all the properties mentioned in the Schedule annexed with the Ordinance, 1962, have vested in the Trust and status of those properties cannot be questioned in any manner whatsoever. In the judgment supra (PLD 1973 Supreme Court 17), the Hon'ble Supreme Court of Pakistan has observed as under:- "The Miani Sahib Graveyard Committee, by a Press-Note dated 29th April 1962, announced the limits of the graveyards. The land claimed by both the appellants were included in the said Press- Note. The demarcation of the graveyards was taken up on the 22nd February 1962. Noor Din's case was decided by the Chairman on the 12th May 1962 and he was ordered to vacate the graveyard. The second appellant Pir Mahmood Ashraf was also ordered to vacate the premises on 14th May 1962, by the Chairman and the property in dispute was acquired by the Miani Sahib Graveyard Committee. These action clearly show that the before the 8th June 1962, the Martial Law Authorities have assumed possession of the property in dispute." The Hon'ble Supreme Court of Pakistan in the judgment supra has reproduced a paragraph of a case titled "Azizur-Rahman Choudhury v. M. Nasir-uddin and others" (PLD 1965 SC 236). The same is re-produced as under:- "It has next to be considered whether, even though the validity of the said orders and acts cannot be challenged, the action purported to be taken there under can be questioned on the ground that they were not in accordance with the Martial Law Order. If these were completed acts (underlined mine) and the protection given by Martial Law Regulation's Nos.88 and 93 was available for such acts then the language of clause II of Martial Law Regulation No.88 as amended by Martial Law Regulation No.93, renders them immune from attack. The utter regulation has expressly widen the immunity so as to include any "Order made or anything done whether the order or the thing is done within scope of the Regulation or Order, or not, or whether the Authority making the order of doing a thing had jurisdiction in the matter or not." Furthermore, under this even persons authorized by or under a Martial Law Regulation or Order to perform any function or exercise any power would be Martial Law Authorities within the meaning of the said Regulations. Thus the Provincial Government and the Administrator would have also become Martial Law Authorities pro tanto for the purposes of the said Martial Law Order No.104 and their acts would not have been open to question whilst those Regulations Nos.88 and 93 were in force. If those acts were consummated acts, then on the principle of past and close transactions those acts will still enjoy the same immunity given to them by those Regulations by reasons of the provisions of Article 250 of the Constitution." While concluding the judgment Hon'ble Supreme Court of Pakistan holds as under:- "In the light of the above observations, I am satisfied that the transaction in question was completed past and closed for all practical purposes before the 8th June 1962. The abovementioned actions taken by the Martial Law Authorities were, therefore, saved by the President Order No.29 of the 1962 and Article 250 of the Constitution. These actions were rightly held to be immune from attack before the High Court. There is, therefore, no ground to interfere with the orders of the High Court." The afore-referred paragraph of the esteemed judgment is self-explanatory and in the present case all the actions i.e. inclusion of property in question in Press-Note and thereafter in Schedule (Block-A) annexed with the Ordinance, 1962 were taken by the Martial Law Authorities and the person authorized by order under a Martial Law Regulation before, 8th June 1962.

10. In is not denied by the learned counsel for the petitioner that the petitioner is in Rossession of land bearing Khasra No.6716 which is duly mentioned firstly in the "Press Note" and secondly in the Schedule (Block-A) Miani Sahib Graveyard Ordinance, 1962. As earlier referred, that the "Press Note" and the subsequent legislation made by the then Martial Law Authorities have been protected by the Hon'ble Supreme Court of Pakistan in its landmark judgment supra (PLD 1973 Supreme Court 17), this judgment was re-affirmed in two subsequent unreported judgments of the Hon'ble Supreme Court of Pakistan i.e. C.P. No.305 of 2002 (Zoraiz Lashari and others v. Miani Sahib Graveyard Committee, decided on 14.01.2003) and C.P. No.1791 of 2017 (Ch. Muhammad Anwar and others v. District Coordination Officer and others). In the aforesaid judgments the Hon'ble Supreme Court of Pakistan has specifically observed, that all the actions and proceedings taken and conducted by the then Martial Law Authorities are passed and closed transaction meaning thereby cannot be reopened or interfered in any manner whatsoever.

11. Even otherwise, this petition is not maintainable on the ground, that the petitioner has not come to the Court with clean hands and is not entitled for any discretionary or equitable relief as the petitioner encroached upon/illegal possessed and used the land of Miani Sahib Graveyard, which is "Trust", therefore, this petition is liable to be dismissed with heavy cost.

12. In view of above, this petition stands dismissed with cost of Rs.25,000/-. Deputy Commissioner, Lahore/Chairman, Miani Sahib Graveyard Committee, is directed to take over/recover/retrieve the possession along with demolition charges and Tawan at the prevailing, market rate of the period, under which the aforesaid land remained under the use and illegal possession of the petitioner, within seven days. No order as to costs. ZC/N-8/L Petition dismissed.