' ALI AKBAR QURESHI, -J.---The petitioners of the instant petition are aggrieved of an action initiated by the respondents to remove the encroachments of Miani Sahib Graveyard, Lahore.
2. Learned counsel for the petitioners has contended that the petitioners have purchased the suit- land through registered sale-deed, therefore, they are bona fide purchaser and the respondents have no lawful authority to demolish or to take possession of the land owned by the petitioners, In support of their contention, learned counsel has referred, the sale-deeds Annexure-A and B and further submitted that no opportunity of hearing has been provided before starting the campaign to remove the encroachments. Also contended, that no final notification as required by section 12 of the Punjab Graveyard Preservation and Maintenance Act, 1958, has been issued, therefore, the respondents are, otherwise, not permitted by law to disturb the possession of the petitioners, Reliance is placed on Messrs Airport Support Services 'v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), Professor Yameen-ud-Din, Advocate v.
Lahore Graveyard Committee through Deputy Commissioner/Chairman and another (2003 CLC 1718), Muhammad Din and-9 others v. Province of the Punjab through Collector, District Rahimyar Khan and 3 others (PLD 1990 Lahore 58), Dr. Nusrat. Ullah Chaudhry and 2 others v. Government of the Punjab through Secretary, Cooperative Department, Lahore and 2 others (PLD 1994 Lahore 353), Shahab-ud-Din and others v. Mst. Mariam Bibi and others (1995 MLD 45), Abdul Hafeez Abbasi and others v. Managing Director; Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034) and Abdul Khaliq Doossani v. Mst. Farida Saba (2003 YLR 2206).
3. Conversely, the learned Legal Advisor of the Miani Sahib Graveyard Committee Malik Maqbool Sadiq, submitted that the land bearing Khasra No,6643 which was allegedly purchased by the petitioner is part and included in the schedule attached to the Miani Sahib Graveyard Ordinance XLIV of 1962, therefore, the transaction of sale and purchase even through a registered sale deed is without lawful authority and invalid. Reliance is placed on Noor Din v. The Chairman, Miani Sahib Graveyard Committee, Lahore (PLD 1973 SC 17). Further contended that firstly the survey was conducted under the Martial Law Regulation by the Martial Law Authority in the late 50's and secondly under the orders of this Court by a Senior Member, Board .Of Revenue Mr. Najam Saeed and the Khasra number allegedly claimed by the petitioners is also included in both the survey, therefore, the instant constitutional petition in the observation made in the esteemed judgment is not maintainable. Lastly contended, that a right of hearing was provided to the petitioners but the petitioners could not satisfy to the Committee.
4. Heard.
5. The petitioners have filed the instant petition on the strength of the sale deeds executed in the year, 2005, that the property in question was purchased by them through registered instruments, therefore, they are bona fide purchaser.
6. The matter pertains to the status of the land vested in the Graveyard Committee in result of an Officer namely' Miani Sahib Graveyard Ordinance (XLIV of 1962), was thrashed out by the Hon'ble Supreme Court of Pakistan in a judgment supra (PLD 1973 SC 17). In the aforesaid judgment, it has already been ruled, that all the transactions completed before 18th of June, 1962 are past and closed for all practical purposes, as all the actions taken by the Martial Law Authorities were saved by the President Order No,29 of 1962 and Article 250 of the Constitution of Islamic Republic of Pakistan, 1962.
7. While giving the history of the Miani Sahib Graveyard, the Hon'ble Supreme Court of Pakistan has observed as under:- ' PLD 1973 SC 17 Miani Sahib Graveyard is one of the oldest graveyards in Lahore and is in a most neglected state. It had been trespassed by a large number of unauthorized persons and innumerable structure had been constructed on the graveyard land. It was being used by anti-social elements. On receipt of large number of complaints, the West Pakistan Graveyard (Preservation and Maintenance) Act XXV of 1958, was introduced on the 24th April, 1958, to provide for the preservation and maintenance of the graveyards in West Pakistan. By a notification, dated the 25th March, 1959, a Graveyard Committee was constituted headed by the Deputy Commissioner, Lahore as Chairman. The graveyard land of Miani Sahib was surveyed by the Committee but in view of the practical difficulties in removing the encroachments, most of which had become permanent, the assistance of the Martial Law authorities was sought. The Martial Law authorities on the 22nd November 1961, reconstituted a Committee under their own supervision headed by Additional Deputy Commissioner (G), Lahore, as the Chairman with five official members including a nominee of the Martial Law Administrator. This Committee was constituted to remove the encroachments. This Committee issued notices to unauthorized encroachers under Martial Law Order No,48 and Martial Law Regulation No,20A.
' The Miani Sahib Graveyard Committee by a Press-note, dated the 29th April, 1962, published in Pakistan Times dated the 29th April, 1962, announced the limits of the graveyards.
On the 31st May, 1962, the Martial Law Administrator, Zone `IV issued Martial Law Order No,131 authorizing the Committee to remove encroachments and impose penalties. This order was made retrospective form 22nd November, 1961. The encroachments of the appellants were removed under the Martial Law Order No,131 and it is alleged were completed long before the commencing day of the Constitution i.e, 8th June, 1962. On the 7th June, 1962; the Governor of the West Pakistan, promulgated Ordinance No,XLIV of 1962, called the Miani Sahib Graveyard Ordinance. This Ordinance kept alive the provisions of Martial Law Order No,131 and had a schedule of Khasra numbers attached to it, which defined the limits of Miani Sahib Graveyard.
8. The matter again came up before the Hon'ble Supreme Court of Pakistan in a case C.P.L.A. No,305 of 2002 wherein the provisions of Ordinance, 1962 were again interpreted and ruled as under:- "The contentions have not impressed us. The West Pakistan (Preservation and Maintenance) Act, 1958 was promulgated on 24-4-1958 in order to provide for preservation and maintenance of Graveyard in West Pakistan in general and Miani Sahib Graveyard in particular. Pursuant to the said Act a Graveyard Committee headed by the Deputy Commissioner Lahore was constituted, vide a notification, dated 25-3-1959, which surveyed the area falling within the ambit of Miani Sahib Graveyard and found many encroachments. In order to remove the encroachments assistance of the Martial law authorities was sought. The Martial Law Administrator reconstituted the Committee headed by ADC(G) Lahore with five official Members including a nominee of the Martial Law Administrator. On 31-5-1962 the Martial Law Administrator Zone-B issued Martial Law Order No,131 authorizing the Graveyard Committee to remove encroachments and impose penalties. The order was applied retrospectively from 27-11-1961 and the encroachments were removed. On 7-6-1962 the Miani Sahib Graveyard Ordinance, 1962 was promulgated which kept alive Martial Law Order No,131 and the schedule attached to it defined the limits of Miani Sahib Graveyard. The entire Khasra No,9945/6596 was included in the schedule. The petitioners have claimed that they had purchased land measuring 1 Kanal 7 Marlas 184 Sq. Ft. Falling in Khasra Nos.9945/6596 from Muhammad Hanif and Mst. Kalsoom through a registered sale deed, dated 7-6-1968 which was followed by mutations No,4077 and 4076, dated 13-9-1968. It was provided in section 5 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958 that the Government shall issue a preliminary notification defining the limits of the area proposed to be declared as the area of the graveyard. Section 6 further provided that any person who claimed to have acquired 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 according to section 7 such application were to be disposed of by a Tribunal appointed by the Government. There is nothing on the record to show that the persons from whom the petitioners had allegedly purchased certain landed property comprised in Khasra No,9945/6596 had moved any application for exclusion of the same from the area of Miani Sahib Graveyard. They had thus ceased to be the owners of the said land by operation of law and inaction and as such the petitioners can neither step into their shoes nor re-open a closed chapter. It is true that under section 2(d) of the Miani Sahib Graveyard Ordinance, 1962 "Miani Sahib Graveyard" means the area specified in the schedule subject to any subsequent modification made by the Miani Sahib Graveyard Committee under the orders of the Assistant Sub-Administrator, Martial Law Lahore and section 4(2) envisages a final notification defining the limits of the Miani Sahib Graveyard which shall be deemed to be a notification issued under section 12 of the West Pakistan Graveyard (Preservation and Maintenance) Act, 1958 but the petitioners cannot make any mileage from these provisions for reasons that are not far to seek. The recommendation of the Miani Sahib Graveyard Committee allegedly culminating in the final notification with regard to the land in dispute is not available on record and an undated typed notification has been pressed into service in spite of the observations made in the impugned judgment that "the alleged notification has neither been issued by the Government nor it has been published in the official Gazette nor it bears the signatures of any authority". The omission leads to an irresistible conclusion that the so-called modification in the area of Khasra No,9945/6596 was made by a hidden hand and not by the authorities mentioned in the West Pakistan Graveyards (Preservation and Maintenance) Act, 1958 and Miani Sahib Graveyard Ordinance, 1962. Needless to mention that the matter being a past and closed transaction in view of the observations made in Noon Din v. Chairman, Miani Sahib Graveyard Committee Lahore (PLD 1973 SC 17) the revenue authorities were bereft of jurisdiction to entertain any appeal or revision in respect of Mutation No,4686, dated 28-5-1976 which is in line with the schedule appended to the Miani Sahib Graveyard Ordinance, 1962.
9. Under the direction of this Court, a Senior Member, Board of Revenue namely Mr. Najam Saeed, conducted survey on the basis of the schedule of Khasra Numbers attached to the Ordinance, 1962, although the task was very difficult, but the said officer completed the job successfully with the help of the other revenue officials. It is also reported, that the said Member personally remained present at the time of conducting the survey and has pointed out the encroachments made upon the land owned by the Miani Sahib Graveyard in his report. The sincere service rendered by Mr. Najam Saeed, learned Member Board of Revenue is commendable. The land in question is included in the schedule and is encroachment as reported by the learned Member, therefore, the petitioners who have not come to the Court with clean hands, are not entitled to any discretionary relief. The learned counsel, time and again argued, that the petitioners are bona fide purchaser and no final notification, as required by law, has been issued but has totally ignored the law laid down by the Hon'ble Supreme Court of Pakistan in the recent judgment CPLA No,305 of 2002.
10. It is also observed with great concern that the Hon'ble Supreme Court of Pakistan in the judgment supra (PLD 1973 SC 17), has observed that the Ordinance, 1962 was promulgated on different complaints of encroachments and anti-social activities upon the land of the Miani Sahib Graveyard and today the encroachments upon the land which vested in the name of Allah have been increased instead of decreasing. The Miani Sahib Graveyard Committee which is headed by the Deputy Commissioner of the Town or any other Government functionary did not bother to take any notice rather closed their eyes and encourage the encroachers land mafia to encroach upon the land, which is in any case is highly deplorable. The petitioners, if purchased the land owned by the Miani Sahib Graveyard, cannot blame to others because it was the responsibility of the petitioners to firstly enquire from relevant quarters regarding the status of land, as required by the provisions of Transfer of Properties Act.
11. Although the learned counsel for the petitioners argued that the case at length but have failed to make out a case of interference under the provisions of Article 199 of the Islamic Republic of Pakistan, 1973. The ratio of the law cited by the learned counsel for the petitioners is that nobody should be condemned unheard, but in this case the status of the petitioners is encroacher, therefore, the cited law is not helpful to the petitioners, Even otherwise, the petitioners have approached to this Court for equitable relief but with unclaimed hands, therefore, are not entitled for any discretionary relief.
12. Resultantly, this petition has no force and is dismissed with no order as to costs.