MUHAMMAD MUZAMMAL KHAN, J.- This judgment purposes to decide instant civil revision and two Constitutional petitions (W.P. 243-R/81 and W.P. 560-R/81) between the same parties, raising alike questions of law/facts, relating to the same properties and requiring similar determination.
2. Civil revision assails judgments and decrees dated 9.5.1981 and 25.1.1984 passed by the learned Civil Judge and learned Additional District Judge, Lahore, whereby suit of respondents Nos. 1 and 2 was decreed and appeal of the petitioner was dismissed, respectively, in this case, respondents Nos. 1 and 2 filed a suit for permanent injunction against the petitioner claiming that they are in possession of property No. D-1716/C/21 constructed over land bearing Khasra No. 2058-Main Shah Alam Market, Lahore, which consisted of basement, four shops, one room etc. And measured 5 marlas within the revenue estate of Koocha Mehta Singh. They also pleaded that they purchased the property in question from one Haji Muhammad- Nawaz through a registered sale-deed dated 16.4.1978 for a consideration of Rs. 36,000/-, as this property had been allotted to him by the Settlement Department out of compensation pool through T.O. No. 48885 on 1.10.1976. They also averred in the plaint that petitioner had no right, title or interest in the disputed property, but inspite of it, an attempt to demolish it was made, out of mala fide and illegal act. Claim of respondents Nos. 1 and 2 was that their vendor raised construction after getting site plan sanctioned from Lahore Municipal Corporation under whose control the area in question was at that the.
Respondents Nos. 1 and 2 pleaded that claim of the petitioner of proposing scheme in the year 1957 was baseless as-neither the land forming part of that scheme was ever acquired nor any award was announced by the Land Acquisition Collector and above all no scheme was allowed by undertaking development work by laying sewerage/roads etc. According to their plaint, the scheme claimed by the petitioner had not only become barred by the but had also become redundant by lapse of time. petitioner being defendant in the suit contested it by filing written statement, wherein certain preliminary objections were raised regarding jurisdiction of Civil Court, locus standi of respondents Nos. 1 and 2 regarding filing of suit. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge after doing the needful, vide his judgment and decree dated 9.5.1981 decreed the suit of respondents Nos. 1 and 2 with costs.
Petitioner aggrieved of the decision of the Trial Court filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed vide judgment and decree dated 25.1.1984, whereafter instant revision petition was filed which was admitted to regular hearing and has now been fixed for final determination.
3. Petitioner also filed two Constitutional petitions, noted above. Writ Petition No. 243-R/81 was filed with the averments that in 1947 two different development schemes were sanctioned, one being "Civil Station No. 1" over 1100 acres and second being "Civil Station No. 2" over 1473 acres, but were not acted upon and after partition of Indo- Pak Sub-continent predecessor of the petitioner i.e. Lahore Improvement Trust revived those development schemes, covering the whole area with certain amendments. According to the petitioner, the relevant notifications were issued on 6.8.1953 and award with regard to scheme known as "Gulberg-W" was announced on 25.4.1959, whereas award with regard to "Bhabra" and "Guru Mangat" were announced on 30.10.1962. it was further averred that during the process of rehabilitation of the refugees Settlement Department unauthorizedly allotted certain portions of the scheme above referred and those allotments were claimed to be illegal and unauthorized, having already vested in the petitioner on account of acquisition of land. Property forming subject of Civil Revision No. 1183/1984 was also subject of attack in this petition.
4. The other Constitutional petition by the petitioner was Writ Petition No. 560-R/81, wherein transferees/plaintiffs in suit, out of which Civil Revision No. 1183/1984 arose, were arrayed as respondents and transfer of property in favour of their predecessor by the Settlement Department was specifically challenged with the prayer that transfer order in their favour by the Chief Settlement and Rehabilitation Commissioner be declared illegal/void.
5. Learned counsel for the petitioner submitted that the land/properties forming part of scheme of the petitioner, were not part of compensation pool and thus all the transfer deeds issued by the Settlement Department qua the petitioner are void. He further submitted that Shah Alam Gate Scheme was implemented after due sanction by the Central Government vide letter No. F.16(13)/5- P/16-5/1957 and by the Provincial Government vide letter dated 28.10.1958, thus it was incorrect to say that the scheme has lapsed or it has become barred by the. Learned counsel for the petitioner further emphasized that price of the land included in all the schemes introduced by Lahore Improvement Trust was made to the Settlement Department whereafter, allottees inspite of illegal allotments, could not urge non-payment of compensation by the petitioner. According to him, the predecessor of the petitioner (LIT) did undertake construction/development work of execution of the scheme which is not vanished by the petitioner being its successor.
6. Learned counsel for respondents Nos. 1 and 2 refuted the arguments of the petitioner, supported the concurrent judgments and decrees of the two Courts below in the civil revision and opposed issuance of writ as prayed by the petitioner by urging that property in question was never acquired, no award was announced and no compensation of the land either to the owners or to the Settlement Department was made thus the petitioner could not bank upon a dead scheme which was never executed. Learned counsel for the respondents relied on the provisions of Punjab Development of Damaged. Areas Act, 1952 to contend that Lahore Improvement Trust was to complete its all schemes within a period of three years, but having not done so, the scheme in question i.e. Shah Alami Gate cannot be said to be alive, it was also submitted that property in question being evacuee, formed part of the compensation pool by the approved law and was rightly transferred by the Settlement Authorities. According to him, both the writ petitions filed by the petitioner to assail transfers by the Settlement Department suffer from laches, as those were filed after lapse of two decades.
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Properties of the respondents Nos. 2 to 6 in Writ Petition No. 560-R/81, who were plaintiffs in the suit, out of which Civil Revision No. 1183/84 arose, which is the main cause of dispute of instant litigation has two numbers i.e. P. 1716 the number allocated by Lahore Municipal Corporation, which as a matter of fact is part of Plot No. 21-C of the Lahore Improvement Trust now Lahore Development Authority and this number (21-C) according to the petitioner is the number of plot of scheme of Shah -Alami Gate Scheme. Point which hinges for determination is whether disputed property is really a part of Shah Alami Gate Scheme of the petitioner and whether it still subsists. All the witnesses produced by the respondents unanimously deposed that there is no scheme by LDA, as it never executed any development work. Respondents produced besides their oral evidence documents (Exhs. P.9 to P.12) showing that the area in question is still under the control of LMC. No doubt scheme by the petitioner may have been proposed but there is no evidence on the record to show that it, as a matter of fact, was implemented at the spot by acquiring land, announcement of award, payment of compensation and laying the development work of sewerage, roads and electricity etc. The witnesses produced by the petitioner could not point out any development work undertaken by it during the intervening period of sixty years. There are letters written by the Land Acquisition Collector, Lahore Improvement Trust, addressed to the Secretary, Lahore Improvement Trust dated 23.6.1971 and 24.7.1972 (Exhs. D.l and D.2) which show that the scheme relied by the petitioner was purposed in the year 1957. Section 13(2) of the Punjab Development Damaged Area Act, 1952 provides that Improvement Trust shall soon after the completion of a scheme under this Act, as may be, but not later than three years from the date of sanction thereof, submit to the Government an accurate statement of actual cost of scheme and income derived therefrom, besides the estimated value of the plots which unsold. This provision of law on the one hand provides maximum period of three years for completion of the scheme and on the other hand, requires the Improvement Trust to submit to the Government particulars regarding available plots and expenditure/income therefrom. Record of the case is absolutely thirsty of the proof regarding compliance of provisions of Section 13(2) of the Act (ibid). Learned counsel appearing on behalf of the petitioner even at the the of hearing of the case, felt handicapped to refer to any document on the file showing a completion of the scheme within the stipulated the. Though it was claimed that award announced for Guru Manget area included the scheme in question, but no effort was made to prove this fact on the file, including production of the award. Likewise no proof of any kind was produced regarding payment of compensation which was allegedly made to the Settlement Department, on the basis of which, the land was claimed to have been excluded from the compensation pool. The witnesses produced by the petitioner i.e. DW.1 and DW.3 themselves admitted that no award of the scheme in question was announced by the Land Acquisition Collector of the petitioner, it is amazing that a residential scheme allegedly sanctioned in 1957 and having been deserted, is still being relied just to oust the owners of only 5 marlas property. Petitioner did not bring on record any evidence showing that the Shah Alami Gate Scheme allowed in the heart of the old city of Lahore, over the properties damaged during the partition days, was executed/activated at the spot or alike action was taken against any other transferee of the property falling within the scheme area, it is an open secret that the area where the scheme was proposed is thickly populated and one can hardly walk through the streets becoming available out of congested construction of houses etc.
8. This Court earlier undertook the exercise of examining the existence or otherwise of the scheme relied by the petitioner in the case of Maulvi Muhammad Waheed Ullah Vs. The Chairman, Lahore Improvement Trust (PLD 1975 Lah. 586). In this judgment Affairs of West Pakistan Damaged Area (Development) Ordinance, 1948 and those of Punjab Development of Damaged Areas Act, 1952 were considered. Relevant part of the judgment touching laying of residential scheme reads as under:-- "I am afraid the argument raised by the learned counsel is fallacious for no scheme can be implemented in an area which is not acquired and possession delivered to the Trust. The interference by Trust in such a case would be absolutely without lawful authority for even if the scheme does give the power to the Trust to demolish the unauthorized construction it conflicts with the Act and in such a case the Act is to prevail and the scheme to that extent shall be void. The learned counsel for the respondent admits that there are only two Plots Nos. 9 and 10 in the area which were vacant and on which some temporary construction has been raised and the Trust wants to demolish those constructions, it is further conceded that these two plots one of them belonging to the petitioner have not been acquired so far by the Lahore Improvement Trust."
The Honourable Supreme Court graciously considering the status of acquisition of land for school purposes, mandated that no action after notification under Section 4 of the Land Acquisition Act, 1894 having been taken, possession of the land continuing with the owners to whom no compensation was paid, the acquiring authority had no title thereto, in the case of Director of Education (Schools) Vs. Hafiz Muhammad Anwar (1994 PSC 98). Similar view was taken by the Honourable Supreme Court in the case of Haq Nawaz and others Vs. Rab Nawaz and others (1992 SCM R 993).
9. For what has been discussed above and scan of record of all the three cases, brings me to hold that Shah Alami Gate Scheme was never implemented at the spot, no award of acquisition was announced, possession of the land was not taken which continued to remain with the owners, no compensation was paid and thus the properties evacuated by the non-Muslims at the the of partition of Indo-Pak Subcontinent, formed part of the compensation pool by operation of law and were not excluded there from, as claimed by the petitioner and were competently transferred/allotted through the claims or other modes of auction etc. With the result that both the Courts below are held to have returned correct concurrent findings of facts which are in consonance with the record and deserve no interference, hence the revision petition (C.R. 1183/84) and both the Constitutional petitions filed by the petitioner (W.P. 243-R/81 and W.P. 560-R/81) are dismissed with no order as to costs.