SAVED ZAHID HUSSAIN, J.--- Property bearing No. C-1746 in Khasra No. 1233 measuring 7 marlas, 127 square feet outside Masti Gate Lahore, is claimed to have been transferred to Dildar Ali son of Allah Ditta (the predecessorin-interest of the petitioners) in the year 1960 for which PTO was issued in the said year and Transfer Order (T.0) on 16.7.1976. On a reference under Sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act, 1975 (Act XIII/1975) proceedings for declaring the property as evacuee trust property were commenced. On 17.12.1997, the Chairman Evacuee Trust Property. Board who was seized of the matter declared the property as evacuee trust in view of the statement and admission by the petitioners to this effect whose request for treating them as tenant was accepted. A lease deed dated 19.10.1998 was then executed between the Deputy Administrator Evacuee Trust Property and the petitioners. It was for a period of 30 years commencing from the date of its execution and the lease money fixed for that purpose was Rs. 20 lacs. One of its terms was that the petitioners-lessees would develop the property after getting the building plan approved by the Chairman Evacuee Trust Property Board and getting it sanctioned from Lahore Metropolitan Corporation. Pursuant thereto, after payment of the lease money, the petitioners applied for sanction of the plan through the Deputy Administrator Evacuee Trust Property which application was forwarded by the Deputy Administrator Evacuee Trust Property on 22.7.1998 to the Lahore Metropolitan Corporation with his approval and recommendation for the sanction of the plan. A fee of Rs. 65,850/- was also deposited for this purpose on 29.7.1998. The construction plan was sanctioned on 2.12.1998. The petitioners were, however, informed by the Town Planning Officer Metropolitan Corporation Lahore vide letter dated 4.12.1998 not to start construction till further orders. On 5.12.1998, a show cause notice for revoking sanction was issued alleging that the grant of sanction was result of suppression of true facts. The Director Town Planning Metropolitan Corporation Lahore finality conveyed them on 8.12.1998 that the sanction had been revoked and cancelled. A suit for `declaration and injunction was filed by the petitioners on 10.12.1998, against Metropolitan Corporation Lahore and its functionaries that they had the right to raise the construction according to the sanctioned plan without any hindrance or obstacles and the defendants be restrained from canceling the sanctioned plan without providing them full- fledged opportunity. The said suit continued to be pursued for some time but as stated by the learned counsel for the petitioners was withdrawn eventually, (the date of such withdrawal or copy of the order is not available with him). The present petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, was filed on 4.5.1999 with the prayer that:- "(i) the initial order dated 17.12.1997 on which the edifice has been raised by way of lease deed dated 19.10.1998 and cancellation of construction plan dated 8.12.1998 may graciously be declared to be without lawful authority and jurisdiction.
(ii) the respondent No. 4 may graciously be directed to restore the land to the petitioners;
(iii) the respondent No. 4 may be directed to refund the unilaterally imposed non-refundable deposit of Rs. 20 lacs and Rs. 99,429/-recovered as arrears of rent may be ordered to be refunded;
(iv) the respondent No. 5 may graciously be directed to restore already approved construction plan on 2.12.1998.
(v) the letter dated 9.12.1998 may be declared to be a creation of delinquent mind in concerted effort designed to cover illegal action and mischief of respondent No. 4; and
(vi) the respondent No. 7 may graciously be directed not to interfere with the possession of the petitioners or to restrain them from raising construction on their land and not to employ police force to harass and victimize the petitioners.
It is further prayed that the petitioners may be accorded any other relief to which they are found entitled. Costs are claimed."
2. The learned counsel for the parties have been heard at a considerable length. The contention of the learned counsel for the petitioners is that since the property had been transferred to their predecessor as evacuee property in the year 1960, it could not be declared as evacuee trust property as was done on 17.12.1997 by the Chairman of Evacuee Trust Property Board. According to him such an order was result of duress and coercion which is liable to be declared as illegal. It is contended that the declaration of the property as evacuee trust was not only illegal but also un- Islamic.
3. As has been mentioned above, the property in dispute had been transferred in the name of Dildar Ali, the predecessor-in-interest of the petitioners in the year 1960 for which final Transfer Order i.e. T.O. Was issued on 16.7.1976. On a reference that the property was evacuee trust and the same be declared as such, the Chairman Evacuee Trust Property Board was seized of the matter when on 17.12.1997, Talib Hussain petitioner made a statement that in view of the status of the property as evacuee trust, they may be leased out the same with permission to raise construction thereon on payment of lease money. It was thus that the Chairman of Evacuee Trust Property Board proceeded.To cancel Transfer Order dated 16.7.1996 and it was directed that they be treated as tenants of Evacuee Trust Property Board and their request for raising construction will be considered separately on their application. Lease deed dated 19.10.1998 (almost 10 months thereafter) was executed between the parties which bear signatures/thumb impressions of the successors of Dildar Ali. The assessed money was paid by them whereafter application for the grant of sanction of building plan was processed through the Deputy Administrator Evacuee Trust Property Board. All these events and the conduct of the petitioners negate and controvert the plea set up by them in the petition that there was some coercion employed by the Evacuee Trust Property Board in declaring the property as evacuee trust. It may be of significance to note that prior to the filing of the present petition a suit had been filed by them before the Civil Court at Lahore against Metropolitan Corporation in which it was pleaded by the petitioners that:- "The Evacuee Trust Property Board finally on 19th October, 1998 executed .a lease agreement with the plaintiffs leasing out the above said property for the terms of 30 years (renewable) and allowed to raise construction upto 4 stories building. It was one of the term and condition of the lease agreement that the plaintiffs/lessees shall raise construction after obtaining the site plan sanctioned from the Corporation so accordingly the plaintiffs/lessees submitted site plan for sanction to the Corporation. It is also pertinent to mention here that the Deputy/Assistant Administrator Evacuee Trust Property issued a N.O.C. Letter regarding the approval of the site plan to the Chief Officer Metropolitan Corporation Lahore . Vide letter No. DA (U)/ETP/98/LHR/1284, dated 22.7.1998.
Besides the above averments in their suit, the petition is replete with the representations of petitioners admitting the execution of the lease and their status as. Lessees. They even sought the sanction of the building plan with the intervention and support of the Evacuee Trust Property Board.
It is thus eminently established that the petitioners had willingly accepted themselves as tenants and lessees in the premises as the property was found as evacuee trust property and declared so.
They cannot now take a position which is contrary to their own proclaimed conduct and stance.
Such an inconsistent position one alleging duress or coercion and at the same time accepting the lease cannot be permitted nor countenance. The contention of the learned counsel has thus no real tenability and is repelled. It needs to be kept in mind that writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is discretionary and equitable in nature, in the exercise whereof the conduct of the party in particular of the petitioner assumes vital significance and importance. The petitioners in the instant case due to their proven conduct and acquiescence are not entitled to assail the order dated 17.12.1997 and consequential steps. Their petition to that extent is liable to be dismissed. However, they cannot be denied the status of tenants/lessees as per lease deed dated 19.10.1998 which was never disputed by the Evacuee Trust Property Board.
They are entitled to avail the same as per its . Terms and conditions.
4. Insofar as the revocation/cancellation of plan by the Metropolitan Corporation Lahore vide communication dated 8.12.1998 is concerned, the perusal of the same itself shows that such an action was taken by the Director Town Planning at the instance of Administrator Metropolitan Corporation without hearing the petitioners. Such an hasty action which was taken without affording them a due opportunity of representation and hearing cannot be sustained. It has thus to be declared as such. It is informed by the learned Legal Advisor for the Metropolitan Corporation, Lahore that the Town Officer (Planning) Ravi Town Lahore, in the present set up is the competent authority in the matter. The said officer will consider the matter afresh and pass a speaking order after affording due opportunity of representation/hearing to the petitioners.
5. While concluding and before parting with this case I am impelled to express my anguish and painfully note the circumstances in which the petitioners had to lose the property. It is of significance to mention that the property was transferred to their predecessor in the year 1960 and price was paid for the same. It had statedly a commercial use and utility. They were deprived of the property in the year 1997 by virtue of an order passed under Act XIII of 1975 which law also had come into force long after the transfer of the property. Its declaration as evacuee trust property pursuant to the provisions of Sections 8 and 10 of Act XIII of 1975, had to be maintained and upheld in view of the legal position obtaining in the matter. However, in transferring the said property to the predecessor of the petitioners (which was indeed evacuee trust property) the conduct of the Settlement Authorities in the matter was not aboveboard and cannot be overlooked as they were active contributory in doing so. The said Department cannot be absolved of the liability and responsibility. The petitioners or their predecessor were not singularly to be blamed for that. They are entitled' to be compensated for which purpose they can take up the matter with the Member (Settlement and Rehabilitation), Board of Revenue/Chief Settlement Commissioner Punjab for remedial steps in the matter, who hopefully will act in a just and fair manner to alleviate their misery.
In view of the above, the petition is dismissed qua order dated 17.12.1997 passed by respondent No.
4. It is accepted so far as cancellation of their sanctioned plan is concerned, to the extent indicated above and is disposed of with the above observations. No order as to costs.