ALI AKBAR QURESHI, J.---A citizen of Lahore approached to this Court through a petition contending therein, that the land of Miani. Sahib Graveyard (hereinafter mentioned as MSGY) has been encroached upon by powerful of the land by demolishing the graves and because of this the citizens of Lahore are facing serious hardships to bury their beloved ones and prayed that the encroachments in order to facilitate the inhabitants of Lahore, be removed.
2. Later on the Hon'ble Supreme Court of Pakistan while disposing of the Human Rights Case No,29454-P/2018, on 23.07.2018, also directed this Court to continue with the matter of retrieving the land from the encroachers and to devise a mechanism to regulate the things with regard to the burial in the retrieved space of graveyard. For ready reference the order dated 23.07.2018 is re-produced as under:-- "We have been apprised by the Commission that 100-Kanals of encroached land has abeen retrieved, whereas some more land is still to be retrieved from the encroachers. The report submitted by the Commission be placed on the record. Let Mr. Justice Ali Akbar Qureshi, Judge Lahore High Court, Lahore, proceed with the matter and to devise a mechanism to regulate the things with regard to the burial in the retrieved space of the graveyard.
Disposed of"
3. Before giving the details of the land retrieved after removing the encroachments, it would be appropriate to give the history of the Miani Sahib Graveyard.
4. In order to dig out the history of one or the oldest and biggest Graveyard of the Sub-Continent, different people were consulted, internet explored, libraries were searched out and finally an effort made by one Majid Sheikh (columnist) of daily DAWN Lahore, is found. The columnist on coming to know the cognizance taken by this Court to initiate extensive operation to remove the massive encroachments to facilitate the Lahories in burial of their beloved deceased, put his hectic effort and succeeded to fetch out the brief history of the Miani Sahib. Graveyard from the record. The columnist has given the detail of land, establishment of different gardens and housing societies, etc. The historic brief of the graveyard is as under:- 'Land where the living continue to harass the dead" Everyone in Lahore knows about the Miani Sahib Graveyard: You never know who might end up there. My brother and my amazing grandmother both lie buried there. Centuries ago on its edges sat great sages like Guru Nanak and Bulleh Shah, to name a few ,- while their companions visited the old city . Of recent the highest court of the land has been upset by what has happened to the "city of the dead". In this piece we will explore its history , the people who lay buried there, and also the living who continue to threaten the dead.
Located to the south of Lahore, this graveyard is first mentioned in accounts about the Ghori ruler Muhammad Shahabuddin (1149-1206), nearly 825 years ago, who was assassinated at Sohawa, near Gujar Khan, while praying most probably by Khatri Khokhar s. He allegedly met some wise men in Lahore and set aside a lot of land for a graveyard and, allegedly , named it Miani Sahib. There are other claimants to the name, but this is the oldest one could find. His slave Qutabuddin Aibak on taking power allocated 40,000 kanals, or 5,000 acres, so that Lahore could "for a thousand years have no problems with burials". He did not know about 'the land of the pure'. In a way the land allotment was to honour the memory of his mentor Muhammad of Ghor who had treated him so well. The oldest description about this graveyard when set up is that "from the village of Mozang to the banks of the River Ravi" is how it has been described. But then with time the river meandered westwards and the population grew at Mozang and Lahore. The Mughals were the first to desecrate this graveyard when Emperor Shah Jehan set up the garden for his daughter Zebun Nisa Begum. The Chaub urji monumint that we know off was the western outlet to this huge garden and led to the edge of the river. To the east major portions of the graveyard were consumed by the Mughal passion for gardens. Making gardens on its own is a positive attribute, but not if it takes up the space of graveyards. During the 92 years of turmoil that follow ed the death of Emperor Aurangzeb and the rise of Maharajah Ranjit Singh, we see major portions of the graveyard being consumed by the powerful of the land. Come the British and some demarcation took place. But then came 1947 and with the large number of people migrating to Lahore we see the setting up of Samanabad, which was entirely not only on the garden of Zebun Nisa, but on large portions of Miani Sahib graveyard. But then we also see the GOR on Bahawalpur Road being built entirely on graveyard land, and the other smaller chunks of settlement flattening a lot of graves, including some historic ones. So the loot continues, that is till date when from 40,000 kanals what is left, officially , is a mere 1,206 kanals. A government report tells this can "manage 300,000 graves ". The committee that 'administers ' the graveyard has a reputation no one savours. More and more graves are disappearing as smaller five-m arla houses appear at the edges, and the edges seem to shrink. (DAWN Lalzore, T uesday July 29, 2018]
5. Undoubtedly Miani Sahib Graveyard, as appears from the record, was one of the largest and biggest graveyard of the Asia but with the passage of time the land grabbers and even the State consumed the graveyard's land by establishing a Housing Society namely Samanabad, Chubargi Garden by the Mughal Rules and Government Officers Residences at Bahawalpur Road by the Government, the Miani Sahib Graveyard because of these illegal actions, started shrinking. The Martial Law Administrator of this Zone of Ayub Regime, decided to preserve the left out place of the graveyard. For this purpose firstly an Act namely , West Pakistan Graveyards (Preservation and Maintenance) Act, 1958 (Act XXV of 1958) was enacted for the purpose of identifying and removing the encroachments from the graveyards' land. This Act was also applicable on Miani Sahib Graveyard. In the year 1962 a Press Note by the then Martial Law Authorities was issued giving the area and limits of the Miani Sahib Graveyard. On 31.05.1962, Martial Law Order was issued giving the retrospective effect from the date of constitution of Miani Sahib Graveyard Committee.
6. Thereafter on 07.06.1962 Miani Sahib Graveyard Ordinance, 1962 was prom ulgated, wherein the area and detail of the land of graveyard was given. The then law makers not only given the detail of the land but also mentioned the khasra numbers of the land on the basis of the revenue record for the year 1856. I think, the Ordinance 1962 was one of the rare promulgation wherein the khasra numbers of the land were given, so that the revenue department or any other authority could easily find out and demarcate the land of the MSGY .
7. Through the Act, 1958 a Committee headed by Deputy Commissioner , Lahore, was introduced who was responsible to administer the af fairs of the Miani Sahib Graveyard.
8. Although the Miani Sahib Graveyard Committee was constituted but the Committee miserably failed to administer the affairs of the MSGY and to preserve its land, rather the Deputy Com missioner in total violation of the provisions of the Act and Ordinance sold out the land of the graveyard to different persons for "ihata jat". This practice of the Committee in fact encouraged the land grabbers and encroachers to illegally possess the land of the MSGY . The Secretary of the Committee used to be the Assistant Director Local Government, who, for many years remained the sole signatory of the bank account of MSGY and by this way looted money . The record reveals, that the accounts of the Miani Sahib Graveyard were never ever audited.
9. It was a great challenge to retrieve the land of the MSGY from the powerful of the land and encroachers but anyhow the operation was started about 1-1/2 years ago. The Deputy Commissioner/Chairman MSGYC at one point of time was reluctant to initiate the operation against the encroachers but he was ordered to do so as there was no other option to deal with the encroacher with iron hands.
10. In order to verify the encroachments on the spot one Mr. Ali Akbar Khan, Tehsildar (R) was appointed as "Court Representative" and for his assistance Mr. Tariq Baig, Naib Tesildar City Lahore and Syed Shafqaat Patwari were associated with him. Who demarcated the land of graveyard simply in order to satisfy that nobody should be condemned unheard or the land if lawfully owned by anyone should not be interfered. Before conducting the demarcation the notices were given to all the encroachers/land grabbers. Dema rcation was conducted in their presence and it finally reached to the conclusion after providing fair right of hearing to the land grabbers that the land of the graveyard has been encroached upon, again the notices were issued to them to vacate and handover the land to the MSGY . Very few of them amicably vacated and handed over the land to the administration of the MSGY but the action against many persons had to be taken to retrieve the land as they had refused to vacate the graveyard land. There was another proble m being faced that hundreds of people have surrounded the land of the graveyard and made ihata jat. In few cases the Deputy Commissioner/Chairman MSGYC had also sold the land to them but since MSGY is a Trust and land could not be sold out to anyone, therefore, directions were given to the District Administration to demolish all the ihata jaat which were about 550 in numbers. It is pertinent to mention here that one person has built a marriage hall and others their houses without any lawful authority . After demolishing 550 ihata jat, land measuring more than 200 kanals was retrieved and included in the MSGY and it was specifically directed to the Committee that in future the deceased will be buried in the area got vacated from the encroachers. After obtaining Fatawa Jaat from the prominent Islamic Institution s "Pukhta Qabar" was declared to be prohibited. And ordered to be stopped in future.
11. The WASA, although in order to supply the clean water to the citizen of the area installed six tube-wells within the four-wall of the MSGY but was not paying anything to the MSGY Committee finally it was amicably settled, that the WASA Lahore shall pay the rent of the land being used by the WASA @ 10,000/- per month per tube-well to the MSGYC. WASA was also directed to pay the arrears @ Rs,3000/- per month against each tube-well from the period of their installation, which was paid by the W ASA.
12. Two buildings (i) Dispensary being used by the Health Department and (2) Office being used by the Deputy Director Local Government have been rented out Q Rs,10000/- and Rs,60,000/- (currently) respectively and rent thereof is being paid to the Committee.
13. As earlier mentioned, that the land measuring 200 Kanals has been retrieved, therefore, it was necessary to preserve and save the same from the land grabbers in future, therefore the Deputy Commissioner/Chairman MSGY Committee was directed to construct the four-wall around the graveyard. It is reported by the Deputy Commissioner that the four-wall has been completed.
14. As regard the funds lying in the bank accounts of the MSGY Committee, it is pointed out that when the operation was started the MSGY Committee had about 17 million rupees in its account but presently more than 220 million, out of which rupees 215 million have been deposited with Bank of Punjab by this way the Bank shall pay monthly interest of 8.5% per annum which can be used by the Committee to manage its af fairs.
15. Some of area of MSGY was taken over by the Punjab Government for the use of Metro Bus Project but no compensation was paid. The compensation for the utilized land was recovered and deposited in the accounts of the MSGYC. There were also few persons who got the compensation of MSGY from the LDA, those people were summoned by this Court, fair right of hearing they were directed to deposit the received amount to the Miani Sahib Graveyard Committee but till today order has not been complied with.
16. More than 30 cases (suits and appea ls) were sub judice before different Civil Courts from the last more than twenty years. All the civil cases were ordered to be withdrawn and fixed before this Court. All the Civil Cases were disposed of after providing fair right of hearing.
17. During the course of proceedings it was also found, that more than 5 kanal land, which was declared to be part and parcel of MSGY by ' the Hon'ble Supreme Court of Pakistan through judgment dated 14.01.2003 C.P.
No,305/2002 (Zoraiz Lashari and others v. Miani Sahib Graveyard Committee- and others) was demarcated by the Court Representative along with LDA and ordered to be implemented in the revenue record. Encroachments have also been identified but the retrieval is still under process.
18. Janazgah at Bahawalpur Road was rehabilitated and arrangements for the burials were made including facility of "kafan" and shower to the dead body , etc. Two well-equipped Ambulances for shifting the dead bodies towards MSGY were arranged and are in function. One was donated by Mian Aamir Mehmood, a renowned philanthropist and the other was purchased from the funds of MSGY .
19. It was also found, that mutations in the name of MSGY were incomplete and in this regard Tariq Baig, Naib Tehsildar City Lahore, has been directed to sanction the mutations which have been partially done and the rest is still under process.
20. The Miani Sahib Graveyard Committe e was dysfunctional since decade which has been reconstituted and the same is functioning. It is directed that meeting of the Committee shall be convened at least once in a month without being failed. If the same is postponed for any reason that will be convened in the same week positively .
21. The services rendered by Mr. Tariq Baig, Naib Tesildar City Lahore and Syed Shafqaat Hussain Patwari are commendable and appreciable and it is directed that both the aforesaid State functionaries shall not be transferred out of Lahore, without permission of the Court. (Copy of this order shall forthwith be sent to the Secretary Boad of Revenue, Lahore and Deputy Commissioner , Lahore.)
22. Although most of the cases relating to the encroachments in the Miani Sahib Graveyard have been finalized but anyhow certain cases are still pending before this Court as well as the Hon'ble Supreme Court of Pakistan. The Committee shall pursue the cases vigilant ly. No doubt Mr. Khalil Ahmad Ali, Advocate learned legal advisor of Miani Sahib Graveyard Committee is highly competent, vigilant and well conversant legal advisor , who also give singular attention on each case but anyhow if the MSGYC feels that some Senior Lawyer is required to pursue the cases of the MSGY before the Hon'ble Supreme Court of Pakistan, the Committee may engage the service of any Senior Lawyer .
23. The following directions are given to be implemented by the Miani Sahib Grave yard Committee with the help of the District Administration: i. It has already been ordered by this Court, that all the new burial shall be made in the area/land recently retrieved by the order of the Court. The Deputy Commissioner/ Chairman shall ensure the compliance of the order in this regard. ii. Although there is no need to pass any direction as the provision of the West Pakistan Graveyards (Preservation and Maintenance) Act, 1958 and the Miani Sahib Graveyard Ordinance, 1962 are clear but anyhow it is directed that in future the land of the Miani Sahib in any case shall not be used for commercial or residential purpose by anyone and the Committee shall not permit or allow to anyone to use the land for commercial or residential purpose. Anyhow it is made clear that earlier with the consent of the Committee three properties, dispensary , office and place being used by the WASA are already paying monthly rent. The Committee in future will be free to take any decision in this regard. iii. The flower shops, who were earlier paying Rs,10/- per day but when inquired it transpired that even Rs,10/- per day is not being paid by them, therefore, the lease rights of the shops were auctioned. It is directed that the lease rights of the flower shops shall be auctioned after every three years and they will be liable to pay the statutory increase along with the monthly lease money . iv. The Committee, in future shall ensure that nobody has encroached upon the land of the graveyard and if anybody tries to illegally possess the land of the graveyard the Committee shall forthwith take action against them and the same shall continue till the land is retrieved from the encroachers. v. The Committee will not allot or sell any land even an inch for ihata jaat and if anybody tries to made the same by surrounding the land of the graveyard the same shall also not only be removed but an FIR shall be lodged against him/them. vi. The Miani Sahib Graveyard Committe e shall not permit/allow to make "pukhta qabar" in the graveyard and if anybody tries to take the law in his own hand, the "MSGY Committee will act in accordance with law and directions passed by this Court. vii. MSGY Committee shall meet positiv ely at least once in a month. If any of the member of the Committee recuses or resigns, the new member shall be included with the consent of all the other members. The quorum of the Committee although has already been given but anyhow 6 members (3 from non-of ficial and 3 official) shall be needed to make a quorum. viii. The release of fund/expenditure more than 50,000/- shall not be approved/released without the approval of the MSGY Committee. ix. The Committee shall also frame the service policy , if required by law .
The Deputy Commissioner being the Chairman of MSGYC shall ensure that the different cases pending in different Court qua the Miani Sahib Graveyard shall diligently be pursued. xi. The cases of the encroachers, which have finally been decided by this Court or by the Hon'ble Supreme Court of Pakistan, the land thereof shall forthwith be retrieved without fail.
24. Since it is a public interest litigation and bulk of land of the Miani Sahib Graveyard has been recovered/retrieved but anyhow there is a lot of work to be done in different areas, therefore, in order to ensure that the directions/orders given by this Court are being complied with by the MSGY Committee and to monitor the implementation of the directions/orders it would be inappropriate to dispose of the matter and should be kept pending following the principle of Continuing Mandamus. This principle has been adopted in plethora of judgments by the Indian as well as the English Courts and recently the Hon'ble Supreme Court of Pakistan in Panama case cited as "Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Shorif, Prime Minister of Pakistan/Member National Assembly , Prime Minister House, Islamabad and 9 others" (PLD 2017 SC 265). By this way the Court can monitor the working of the Miani Sahib Graveyard Committee and the other H departments i,e, District Administration, etc. who are bound to obey the order of this Court.
25. As the connected cases are being dealt with by my learned brother Shahid Waheed, J. therefore, it would be appropriate, that this case be also heard by the said learned Bench. Office is directed to do the needful after soliciting necessary instructions from the Hon'ble Chief Justice, and fix the case on 15.01.2019.