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ASGHAR BIN SHAHID JAFRI versus DEFENCE HOUSING AUTHORITY

Regency 56 and 57 - Defense Housing Authority Construction and Development Regulations, 2009, Region 53 - Defense Housing Authority Lahore Order, (26 of 2002), Arts 4 (2), 7 (2) (K), and 23 - Defense Housing Authority ("Housing Authority") Eligibility for the Graveyard Burial Burial - The Housing Authority had a burial policy with respect to its cemetery, stating that such facility is only registered for the benefit of registered persons / parents, dependent children / members. Was available to the owners of the building or the housing authority - the legality - the housing authority has designated specific areas for residential and commercial purposes use. S, and allocated / secured areas to provide essential needs to its residents, including parks, cemeteries, parking areas, etc. The management and control of certain areas was with the Housing Authority; And policies were created to create areas for better distribution of resources so as to create structural harmony, confidentiality, security, security and security for residents, who own property through a plot or building. What was the entitlement - if registered person, member or any other person / housing owner besides the plot owner Suspected rights of TA owners may be harmed, violated and restricted. The Housing Authority was allowed to bury the building in its cemeteries - according to which the intra-court appeal was dismissed.

PLD 2017 Lahore 347

Before Ayesha A. Malik and Jawad Hassan, JJ

ASGHAR BIN SHAHID JAFRI—Petitioner

versus

DEFENCE HOUSING AUTHORITY and another—Respondents

Intra-Court Appeal No.689 of 2011, decided on 12th January, 2017.

(a) Defence Housing Authority Construction and Development Regulations, 2014 —

Regins. 56 & 57—Defence Housing Authority Construction and Development Regulations, 2009, Regin. 53—Defence Housing Authority Lahore Order, (26 of 2002), Arts.4(2), 7(2)(k), & 23— Defence Housing Authority (“housing authority)—Graveyard— • Eligibility for burial—Housing authority had a burial policy with regard to its graveyard which stated that such facility was only available for the parents, spouse, dependent children of the registered persons/members I owners of plot or building in the Housing Authority—Legality—Housing Authority had allocated specific areas, for use of residential and commercial purposes, and also earmarked/reserved areas to provide essential needs to its residents, consisting of parks, graveyards, parking areas etc.—Since the management and control of the specified areas was with the Housing Authority, it had made Regulations and Policies, to manage the areas for better allocation of its resources to create structural harmony, privacy, security and tranquillity for its residents, who had developed vested rights through ownership of any plot or building—Vested rights of the owners of the Housing Authority may be harmed, encroached and restricted if persons other than registered person, members or owners of any plot/building in the Housing Authority were allowed to be buried in its graveyards—Intra-court appeal was dismissed accordingly.

Burial policy of Defence Housing Authority (“Housing Authority”) with regard to its graveyards stated that such facility was only available for the parents, spouse, dependent children of the registered persons/members/owners of plot or building in the housing authority. Petitioner was refused permission to be buried in the graveyard along with his spouse after their death since they were only tenants of a house in the Housing Authority.

Respondent Authority was a recognized corporate organization, and was authorized in its independent capacity to do all such acts for its planning, development and regulating housing facilities, either through its Executive Board or Governing Authority. Therefore, the decision on the request of the petitioner to be buried in the graveyard of Housing Authority along with his wife, squarely fell within the domain of the Housing Authority because the specified area of graveyards was under its management and control, [p. 355] A

Generally, the Housing Authority allocated specific areas, so notified, for use of residential and commercial purposes, and also earmarked/reserved areas to provide essential needs to its residents, consisting of parks, graveyards, parking areas etc. Since the management and control of the specified areas was with the housing authority, it had the mandate to make Rules, Regulations and Policies, to manage the areas for better allocation of its resources to create structural harmony, privacy, security and tranquillity for its residents, who had developed vested rights through ownership of any plot or building. The vested

rights of the owners of the Housing Authority may be harmed, encroached and restricted if the facilities were not properly managed, controlled or provided. For this purpose, the Executive Board of the Housing Authority had made Defence Housing Authority Construction and Development Regulations of 2009 and 2014. Both said Regulations, amongst other things, provided the burial policy of the Housing Authority with regard to its graveyards and stated that facility of burial of the deceased was for the parents, spouse, dependent children of the registered persons/members/owners of plot or building in the Housing Authority. Since the petitioner had failed to establish that he was a registered person, member or owner of any plot/building in the Housing Authority, therefore, the court could not overrule the policy of the Housing Authority to manage, control and maintain its specified areas, and to preserve graveyards for its members and owners, [pp. 355, 357] B & C

Petitioner could not establish that he had paid anything against which the Housing Authority was liable to provide him services of burial in its graveyard. Therefore, allowing petitioner’s request would encroach upon the rights' of the members of the Housing Authority to be buried in such graveyard, [p. 359] F

Since the petitioner was a non-resident, therefore, he had no vested right to be buried in the graveyard of the Housing Authority after his death as the same was owned by the Housing Authority and nobody could avail benefit therefrom except with the permission of the authority. Petitioner had many other places and graveyards for his burial along with his spouse after their death. Intra-court appeal was dismissed accordingly, [p. 360] H

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(b) Defence Housing Authority Construction and Development Regulations, 2014 —

<—Reglns. 56 & 57—Defence Housing Authority Construction and Development Regulations, 2009, Regln. 53—Punjab Waqf Properties Ordinance (IV of 1979), S. 2(e)—Defence Housing Authority (“Housing Authority)—Graveyard—Whether graveyards in the Housing Authority could be declared to be “waqf property” and used for burial of public-at-large—Property owned by a private entity and specified to provide facilities to the members could not be used for burial of dead bodies of public-at-large—Housing Authority was expected to act in the interest of its members by providing amenities and facilities and not to take away such rights by allowing everyone or public-at-large to be buried in its specified area — Graveyard in the Housing Authority did not fall within the definition of ‘waqf—Even if such graveyard was considered as ‘waqf, it did not create any right in

favour of public-at-large who could claim to be buried in the said property—Property was allocated in the master plan of the Housing Authority for specific purpose and the waqf, if considered, was for specific purpose to accommodate the needs of the members and owners of the Housing Authority—Intra-court appeal was dismissed accordingly.

Defence Housing Authority (“Housing Authority”) owned the land that had been earmarked for the burial of dead bodies of its inhabitants and their dependants and owners of specific land or building in the housing authority, who had paid a price for it while purchasing the plot/property. Thus, property owned by a private entity and specified to provide facilities to the members could not be used for burial of dead bodies of public-at-large. However, even if the allocated land for graveyard of Housing Authority was considered as ‘waqf’, it did not create any right in favour of public-at-large who could claim to be buried on the said property. It was important to keep in mind the good of residents/owners of plot or building and vested rights conferred on all persons who owned any land or building in the Housing Authority, which were absolute, and were granted to maintain public order. Property was allocated in the master plan of the Housing Authority for specific purpose and the ‘waqf’, if considered, was for specific purpose to accommodate the needs of the members and owners. As an easement right had been created in favour of owner of any building or land in the Housing Authority to use facilities for the general convenience, no one had authority to take away such right of enjoyment. Housing Authority was expected to act in the interest of its members by providing amenities and facilities and not to take away such rights by allowing everyone or public-at-large to be buried in its specified area. The rights and facilities available to the members of the Housing Authority were available against the whole world and could be described as a right against land itself, [pp.358, 359] D & G

Even if land allocated for graveyard by the Housing Authority was considered as a ‘waqf’, there must be persons or Authority responsible to administer such trust/waqf property. In the present case, it was a statutory Authority (i.e. Defence Housing Authority) which was managing it and making policies for its use. Such private trust was established for benefit of members and their families, and as such its objectives must be achieved through permissible means and not at the cost of giving the public-at-large right to be buried. Intra-court appeal was dismissed accordingly, [p. 359] E

Muhammad Ahmad Qayyum for Appellant.

Mian Sultan Tanvir for Respondents.

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