2015 PLP 1600 (CLC)

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant Writ Petition with the following prayer:

"In view of the circumstances and facts stated above and the legal position explained, it is requested that this Honourable Court may graciously accept this Writ Petition and on acceptance thereof, direct the respondents to refrain from using the land of family private specified graveyard of the petitioner and his family members situated in khasra No.744/456 new khasra number 649 of Mauza Narala Khurd (Now I-8) between the 9th Avenue and Sector I-8, Islamabad, changing the nature/character of the graveyard at the site or in the relevant official record, using the land specified for graveyard or for any other purpose, creating any kind of hindrance for the petitioner and his family members to bury their dead in the graveyard in future, harassing, pressurizing, humiliating and blackmailing the petitioner or doing any other act, which is prejudicial or constitute an invasion over the rights of the petitioner in any manner whatsoever in the best interest of justice." AND, presented the facts as under:

2. That the petitioner and his family members were permanent residents of Village Narala Khurd, Tehsil and, District, Islamabad (Now Sector I-8). That petitioner and his family members while living in village Narala Khurd earmarked and specified a piece of land measuring 1 kanal, 1 marla for the family private graveyard in the year 1906 about 108 years ago and since then the dead members of the family of petitioner are buried there. That respondent No.3 did not acquire the land of graveyard in the year 1981 and separated, earmarked, specified and demarcated the land of graveyard giving protection to fundamental right of petitioner. That the copy of register Haqdaran-e-Zameen for the year 1956/57 and copy of Naq-al Naqsha of Award of land and Naqal Field Book of Mauza Narala Khurd dated 7-6-1963 are attached with the petition as Annexures-C, D and E respectively. That recently respondents have chalked out a plan of construction of a service road from Sector I-8 to Peshawar Morr along with Metro Bus Track and adamant to use the piece of land of petitioner specified for Graveyard. That petitioner does not have any objection over the metro bus service project, its service road or any- other development as there is sufficient space for construction of proposed service road on the Eastern side without encroaching or disturbing the land of the family privately specified for graveyard. That on 28-4-2014 when the respondent No.7 marked the land of family private specified graveyard, petitioner instituted a civil suit for declaration and permanent injunction against the respondent No.7 along with a stay application which was accepted refraining the respondents from demolishing the graves or changing the nature of the graveyard on 30-4-2014. A Local Commission was appointed but the respondents did not follow the orders of the lower court in its letter and spirit and now started to pressurize, humiliate, threat, harass and blackmail the petitioner through police, administrative circles and other different illegal modes and means in order to accomplish their designs. That the petitioner is entitled to bury his dead in the above stated graveyard within its boundary fence and the above mentioned acts on the part of respondents are illegal, unlawful, mala fide, arbitrary, colourful exercise of officer/authority, pick and choose policy, unjust therefore, constitute an invasion over the rights of the petitioner.

3. On the other hand Respondent CDA filed para wise comments and contended that petitioner has not come to the court with clean hands, he has neither any cause of action nor locus standi to file the petition against answering respondent No.3, CDA. That petitioner has already filed a civil suit regarding the same issue in civil court, Islamabad, therefore, present Writ Petition is not maintainable as it is a settled principle of law that two remedies at the same time cannot be availed in respect of the same subject matter, same property and same cause of action between the same parties. That petitioner has concealed the material facts from the court as the grave-yards in question have already been acquired by the answering respondent vide directive No.103 dated 20-3-1963 and compensation had been paid against the said acquisition, hence the Writ Petition is not maintainable.

4. This Court tried to bring the parties to reach at some amicable solution and in this regard following orders were passed. Being aggrieved of the order of this court, dated 28-5-2014, RDA approached the Hon'ble Supreme Court and vide order dated 11-9-2014, the Hon'ble Supreme Court disposed of the Civil Petition No.1428 of 2014 with the following direction:

"With the consent of the learned counsel for the parties, this petition is disposed of with the direction to the Registrar of the learned Islamabad High Court to fix Writ Petition No.2567/2014 titled Raja Ghulam Farid v. The Chief Commissioner, Islamabad etc. for hearing on 16-9-2014 and it is expected of the learned Judge, seized of the matter, that in view of the urgency involved therein to finally dispose of the writ petition by the end of next week i.e. 19-9-2014, the parties are directed to appear before the Court on the noted dated." In compliance of the order matter was taken up on 16-9-2014, the petitioner showed his generosity of extending cooperation to the civic and executing agencies of the Project, provided suitable place for shifting up the graveyard is provided in the Moza where petitioner is living. However, today the petitioner took a stance that other legal heirs are not in agreement; therefore, matter may be decided on merits.

5. Report on behalf of CDA dated 16-9-2014 has also been submitted which for convenience is reproduced in verbatim:

"REPORT ON BEHALF OF CAPITAL DEVELOPMENT AUTHORITY (CDA) RESPONDENT NO.3. Respectfully Sheweth: It is submitted that a team of following officials/lawyers of CDA conducted Joint Site Visit, on 16-9-2014, of he possible sites for shifting of graves coming in the alignment of mixed traffic road on 9th Avenue, Islamabad: i. Mr. Waseem Ahmed Khan, Member (Planning and Design), CDA ii. Hafiz Hifz-ur-Rehman Syed, Legal Advisor, CDA iii. Raja Adnan Aslam, Additional Legal Advisor, CDA iv. Qazi Muhammad Omar, Project Director (MBP), CDA v. Mr. Ijaz Ahmad, Director Urban Planning, CDA vi. Mr. Umar Farooq, Deputy Director, RDA vii. Mr. Muhammad Razzaq, Graveyard Officer, CDA

2. It was observed during the Joint Site Visit that four Existing Graveyards are available in the Sector I-8, in addition to two city level graveyards in Sectors H-8/3 and H-11/3, for shifting of said graves. The detail of four existing graveyards in Sector I-8 is as under:

S.No. Sub-Sector Location Area Distance from Graves to be shifted Availability of Space for Shifting 1. I-8/1 Street No.4 6.50 Kanals 700 Meters Graves may be shifted 2. I-8/1 Street No.9 8.5 Kanals 500 Meters Graves may be shifted 3. I-8/2 Adjacent to School 16.25 Kanals 800 Meters Graves may be shifted 4. I-8/2 Adjacent to Bazaar No.4 3.00 Kanals 1,100 Meters Graves may be shifted. 3. The Committee is of the view that existing graveyard at Sr.No.2 above is the feasible site for shifting of the graves." 6. The Member Planning and Engineering, CDA took a categorical stance that graveyard located in St. No.9, I-8/1 is at the distance of 500 meter from the graveyard subject matter of the instant petition which is measuring 8.5 kanals. They undertake that land equal to the graveyard of the petitioner shall be provided to the petitioner also be earmarked and it would be the responsibility of the civic body that the bodies buried in graveyard are shifted by meeting the requirements of religion and respect. I am convinced that good of public at large is more important and this aspect has always been taken into consideration all over the world. The Supreme Court of India through its judgment passed in case titled Abdul Jalil and others v. State of U.P and others observed that the fundamental rights conferred on all persons and every religious denomination under the Constitution are not absolute but the exercise thereof must yield to maintenance of public order and that the suggestion mooted by the Court to shift the graves was in the larger interest of the society for purpose of maintaining public order on every occasion of the performance of their religious ceremonies and functions by the members of both the sects herein. 7. While seeking guidance from the judgment reported PLD 1968 SC 185 titled as Chowdhury Tanbir Ahmad Siddiky v. The Province of East Pakistan and others 2007 SCMR 741, Raja Ali Shan v. Messrs Essem Hotel Ltd. and others, 2010 CLC 7 (Lahore), Muhammad Naeem and 2 others v. Land Acquisition Collector, Board of Revenue Punjab, Lahore and 5 others, I am convinced that instant petition is not maintainable; therefore, same is hereby dismissed. Respondent No.3 CDA and other respondents are directed to abide by their undertaking and shift the dead bodies in the graveyard located in St. No.9, I-8/1, Islamabad with full respect and in accordance with religious requirements. Respondent are also directed to provide land measuring one kanal and one marla equal to the graveyard subject matter of instant petition duly earmarked. SL/102/Isl. Petition dismissed.