MAULVI ANWARUL HAQ, J.--This I.C.A. Proceeds against judgment dated 13-12-2005 passed by leaned Single Judge in Chamber of this Court, whereby he allowed W.P. No. 17115-06, filed by the respondents.
2. Learned counsel for the appellants contends that the condition, that the respondents/allottees cannot transfer the plot for a period of 10 years with effect from the date of allotment, is itself a term of the allotment and it has been imposed for the reason that the respondents were allotted plots at a price much lower than the market price and as such the same condition is enforceable by law by the appellants. Learned counsel for the respondents, on the other hand, apart from relying on an unreported judgment of this Court, with reference whereto the impugned judgment has been passed, cities the case of Samiul Haq v. Dr. Maqbool Hussain Butt, etc. (PLJ 2001 SC 1194) and Muhammad Shafi and 5 others v. Muhammad Sharif and nine others (2003 YLR 482) to urge that the condition being not warranted by any law is void and cannot be enforced.
3. We have gone through the writ petition's records with the assistance of the learned counsel for the parties. The contesting respondents, stated to be lawyers and members of the Lahore Bar Associations, after a long drawn litigation in this Court, were allotted plots in "Sabza Zaar Scheme, Lahore by the appellants. The allotment letters were issued inter alia, these letters informed the allottees that as per directive of the Chief Minister of the Punjab, the plots will be non-transferable before expiry of 10 years from the date of allotment. Admittedly, said 10 years have. Not expired. It is also a matter of record that the total agreed price has been paid by the respondents. They intended to transfer the said plots but were not allowed to do so on the basis of the said. Condition.
They accordingly filed writ petition. Learned Single Judge has allowed the writ petition while expressing agreement with judgment of learned Division Bench of this Court in ICA No. 702/2000.
4. We have examined the said judgment.
Primarily, the ICA, filed by the appellants against the. Judgment dated 14-02-2000 of learned Single Judge of this Court in W.P. No. 3834-99 was dismissed being barred by time. However, merits of the case were also examined and in para.10 of the and judgment conclusions arrived at by the learned Single Judge with reference to an earlier unreported judgment of this Court were also upheld. In this case the plots were transferred for a price which has been admittedly paid by the respondents to the appellants. The Transfer of Property Act, 1882, defines a sale to be a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Thus a sale comes into existence when a pot is transferred for a price which is either paid or promised to be paid. At the pain of repetition, the price has admittedly has been paid. A condition restraining alienation is inherently void. Such a condition, even if imposed by the parties out of their free willingness, has been declared to be void by the Statute i.e. Section 10 of the said Act of 1882. Under Article 23 of the Constitution every citizen of the country shall have a right to hold and dispose of property in any part of Pakistan. This right is subject to the Constitution and any reasonable restraint "by law" in the public interest. We called upon the learned counsel for the appellants to demonstrate that any law empowers the Chief Minister or the appellants to impose the said condition for restraint of alienation. He says that the condition has been imposed by C.L.R. the Director General of L.D.A. On the instructions of the Chief Minister who is Chairman of L.D.A.
Needles to state that the instructions of Chief Minister are not "a law" within the meaning of said Article 23 of. The Constitution. The said ,judgment of Hon'ble Supreme Court of Pakistan in the case of Sami-ul-Haq, cited by Khawaja Saeed-uz-zafar, Advocate fully supports his contention.
5. ICA accordingly is dismissed but without any orders as.To costs. .