' ALI AKBAR QURESHI, J.--- This judgment will also dispose of Writ Petitions Nos.3087 of 2008, 3089 of 2008, 3090 of 2008 and 3091 of 2008, as the common question of law is involved in all these petitions.
2. This constitutional petition calls in question the report made by a Committee constituted under the order of this Court passed on 31-10-2002, in Writ Petition No,12453 of 1995.
3. Shortly the fact as stated in the petition are that Plot bearing No,170-4-II-D1, measuring 4-112 Marlas was allotted by respondent No,1 in Lahore Town Ship Scheme in favour of Muhammad Ashraf son of Syed Imran on 10-2-1977. The allotment letter to this effect was also issued on 14-3- 1997 and the said Muhammad Ashraf in response to the allotment letter deposited the entire cost of the plot on 15-3-1977. The petitioner of the instant petition purchased the said plot from Muhammad Ashraf through an agreement, dated 12-4-1986. The petitioner for the transfer of said plot in his name filed an application and also appeared before the concerned authority. The process of transfer of the said plot was completed, which ended on an agreement executed with the petitioner on 3-8-1986 and the petitioner became the owner of the aforesaid plot. Although the process of transfer of plot was completed in favour of the petitioner after receiving the entire amount, but the possession of the said plot cannot be delivered to the petitioner due to the reasons that the plot is under the possession of some other person. The petitioner, as stated in the petition approached the concerned quarters but when no action was taken by the functionaries, the petitioner filed a constitutional petition (Writ Petition 14876 of 1996). The said petition came up for hearing on 31-10-2002 and while disposing the aforesaid writ petition a direction was given to the Director-General, L.D.A. To constitute a Committee for the resolution of the dispute. The Director-General in compliance of the order constituted a Committee. The said Committee examined the record pertaining to the plot in question and finally observed that no plot is available with the- department. Anyhow the Committee constituted under the orders of this Court, did not resolve the controversy and passed a very sketchy, arbitrary and perverse order. Hence, this constitutional petition.
4. Learned counsel for the petitioner submitted that the respondent/L.D.A. Has admitted the claim of the petitioner but has refused to accommodate or allot any plot in alternate in the other scheme to the petitioner. Further contended that the petitioner, who has paid entire consideration of the plot in question, so in any case the petitioner is entitled for the alternate plot in different schemes.
Learned counsel has placed reliance on Mehmood Ali v. K.D.A. 2003 CLC 272 and Major (Retd.)
Barkat Ali and others v. Qaim Din and others 2006 SCM R 562.
5. Conversely the learned counsel appeared on behalf of the L.D.A., (the successor department of respondent No,1) submitted that although the plot mentioned in the writ petition was allotted to the petitioner but presently the department has no alternate place to accommodate the petitioner.
6. Heard. Available record perused.
7. Undeniably the plot in question was allotted to the petitioner in open auction; the petitioner paid the entire consideration to the department; the department issued the allotment letter but did not deliver the possession on the ground that the plot is already under the possession of someone else and cannot be given to the petitioner. Now the only question which requires consideration and adjudication is as to whether the petitioner is entitled for alternate plot. The law referred by the learned counsel for the petitioner is very much clear. Their Lordship while dealing with the identical matter observed as under:---
(i) 2006 SCM R 562.
"Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10, 11, 15 & 16---Evacuee agricultural land not put to agricultural use since long, recorded as "Ghair Mumkin" in Revenue Record--- Allotment of such land as evacuee building site to allottee against verified claims more than three decades earlier---Subsequent auction of such land and claim of its auction-purchaser---Validity- --Allottee would be entitled to retain such land being evacuee property in recognition of his right-- -Such land stood permanently settled and absolutely vested in allottee by virtue of S.16 of Displaced Persons (Land Settlement) Act, 1958---Allottee could not be deprived of his valuable right to property acquired as of right merely at the instance of a party to whom same had been wrongly transferred through auction owing to lapse or connivance of public functionaries or otherwise---Allottee could not be non-suited on such hyper-technical ground, which would amount to reopening of past and closed transaction leading to grave injustice--- Allottee had disposed of land in favour of third party, who had raised huge construction thereon by investing a lot of amount--Auction-purchaser could be compensated by offering alternate property in order to maintain balance and to do complete justice between parties.
(ii) 2003 CLC 272 "Suit for specific performance, declaration, and possession---Suit plot was sold by defendant Authority through public auction to the plaintiff---Plaintiff deposited two instalments of sale price and balance amount was payable in two equal yearly instalments from the date of issuance of possession order by defendant---Subsequently suit plot stood cancelled by decision of Court--- Plaintiff requested defendant Authority that he could be allotted another commercial plot of equal size in the same locality in place of plot sold to him---Defendant instead advised plaintiff of apply for refund of amount already deposited by plaintiff---Plaintiff had filed suit for specific performance, declaration possession and in alternate to allot another plot or for damages---Held, plaintiff was entitled to suit plot and in case it had been cancelled or disposed of by defendant- Authority, then plaintiff was entitled to allotment of similar type of plot in the same scheme or in an identical scheme."
8. The ratio of the aforesaid esteemed judgments is that the lawful and genuine allottee of a plot (like petitioner) cannot be deprived of his valuable rights to property acquired as of right merely on the instances of usual technicalities and lapse of the functionaries, so the Authority concerned is bound to make alternate arrangements in any other scheme.
9. The Committee constituted in compliance of the order passed by this Court, disposed of the grievance of the petitioner in a very casual and routine matter. The said Committee while disposing of the grievance of the petitioner referred provision of Disposal of Land by Development Authorities (Regulation) Act, 1998, whereby all the sites including residential/commercial/industrial and constructed units are to be disposed of through open auction but has not taken care that in the instant case admittedly the plot was allotted to the petitioner, the payment was received but till today the petitioner is running pillar to post without any reason. The said Committee, although observed that the misgiving of the petitioner was caused because of the mischief or incompetency of the employees of the Department, in this eventuality the said Committee should have straightaway directed the Authority to hand over the possession of the plots or if those are not available at least the alternate thereof in any scheme of the Authority. The said Committee has not even tried to apply the independent mind while disposing of the grievance of the petitioner that the allotment of plots was made to the petitioner in balloting, which also amounts to open auction and the petitioner cannot be deprived of his valuable right because of the provisions of the Act (ibid) which otherwise are not applicable upon the instant case. The liberal and fair interpretation of the provisions of Act (ibid) are also in favour of the petitioner as the petitioner was allotted the plots in result of balloting, which is also essence and logic of the provisions of Act (ibid). The Committee also observed, "wherein Tribunal cannot annul the vires of an Act of Parliament because the function is to force and not to annul the law. The Committee while observing this, has in fact refused to exercise the jurisdiction fairly, justly; so in this case the Committee instead of performing the statutory duty and to ease the petitioner, has tried to take the benefit of the aforesaid Act, which, in any case is not applicable. The result formed by the Committee in any case is neither judicious nor adequate. It is also notable that the Committee has admitted while recording its findings, that the misgiving was caused to the petitioner because of the mischief or incompetency of the employees of the department but has not recommended any departmental or penal action against those culprits, so in any case the petitioner cannot be made scapegoat of the mischief and incompetency of the employees of the Department.
10. The Authority i,e, L.D.A., who is autonomous in its formation and to some degree at liberty to run its domestic affair without the intervention of the other Government departments, so such type of the autonomous authorities are expected to safeguard and protect the rights of the people and particularly, who are genuinely entitled to be treated strictly in accordance with law. In this case although the Authority is admitting all the claims of the petitioner, but is refusing to grant the same on certain technicalities or hurdles. The petitioner after more than a decade cannot be asked to receive the amount paid by him, whereas the law settled by this Court as well as the Honourable Supreme Court of Pakistan (supra) permit the petitioner to have the alternate plot in any other scheme.
11. For the forgoing reasons, this petition is allowed, the respondent/L.D.A. Is directed to accommodate the petitioner in the light of the rule laid down by the Honourable Supreme Court of Pakistan 2006 SCM R 562 in any other Scheme of the Lahore Development Authority. No order as to costs.