' This judgment will dispose of Writ Petition No, 4752 of 1979 and R. S. A. No, 830 and R. S. A. No, 1002 of 1979 as they relate to the same scheme and raise common question of law and facts.
' Writ Petition No, 4752 of 1979
2. This writ petition has been filed by one Zulqarnain Malik who claims himself to be the Chairman of Ishaque Haroon Wakf Hospital and the aforesaid institution is said to have purchased plot from Mst. Saeeda Imtiaz Khatoon, respondent No, 4, the predecessor-in-interest of one Mst. Ahmadi Begum. The aforesaid Mst. Ahmadi Begum along with others got a Town Planning Scheme sanctioned under section 260 of the Lahore Corporation Act, 1941 which was commonly known as Muhammad Shafi and others Scheme and was situate in Sham Nagar near old Rifle Range, Lahore.
Annexure-A is the notification regarding sanctioning of the scheme by the orders of the Governor of West Pakistan, dated 28th April, 1948. This scheme had all the amenities such as open spaces and wide streets and had been so provided keeping in view the entire lay out of the scheme.
According to the petitioner the scheme contained an open space measuring 1 kanals, 8 marla and 17 sq. Ft. Which is said to be in front of the plot purchased by the petitioner in the said scheme.
Similarly the scheme provided wide streets measuring 20 feet on the western, southern and the eastern sides of the open space. The approval of the scheme was based on a resolution of the Lahore Improvement Trust No, 4 dated 25th August, 1942. (Annexure-A). The copy of the drawing No, 300-BS of the scheme is Annexure-D. After the framing of the scheme the plots had been said to be put to public sale and purchased by a large number of people and according to the petitioner high prices had been paid for the land keeping in view the amenities provided in the scheme. Thereafter the Lahore Improvement Trust framed a development scheme under the provisions of section 28 of the Town Improvement Act, 1922 commonly known as Rajgarh Scheme for an area approximately 114 acres. A notification in respect of the said scheme issued under subsection (1) of section 41 of the said Act is Annexure-E. A further modification in the scheme made vide notification dated 23rd December, 1971 under section 41 has also been placed on record as Annexure-F. The grievance of the petitioner is that after including the aforesaid Town Planning Scheme into the Development Scheme the Lahore Improvement Trust converted the open space into the plots thereby depriving the petitioner of the amenities of the open space and the street which were guaranteed by the framing of the scheme under section 260, of the City of Corporation Act of 1941.
3. The learned counsel, for the petitioner has urged the following submissions.
(i) That the scheme sanctioned under section 260 of the Lahore Corporation Act, 1941 could not be merged into a Development Scheme framed under the Punjab Town Improvement Act, 1922 ;
(II) That the Lahore Corporation Act, 1941 by itself provided for a change in the scheme and the procedure under the said Act had not been adopted for changing the scheme ;
(iii) That on account of the sanctioning of the scheme and by approving the drawing of the scheme the petitioner had acquired a vested right in respect of the amenities provided in the said scheme :
(iv) That under section 28 of the Town Improvement Act, the Lahore Improvement Trust could only combine one or more schemes which had been framed under the Punjab Town Improvement Act, 1922 and no other scheme.
(v) That the Lahore Improvement Trust having also approved the scheme before its sanction, was under an obligation to execute the same and could not change the same.
4. The Lahore Improvement Trust who had originally framed the Development Scheme is now succeeded by L. D. A. (Lahore Development Authority). The L. D. A. Had filed a written reply and before proceeding to discuss the contentions raised by the learned counsel for the petitioner, the contention of the learned counsel for the respondents may be briefly submitted. It is ' contended that the petitioner has no locus standi to file the writ petition and he is estopped by his own conduct from challenging the validity of Rajgarh Development Scheme. The petitioner was using the building constructed on the land under reference for residential and colony purposes according to the provisions of the. Rajgarh Development Scheme and not those of the Town Planning Scheme (the private scheme). It was further submitted that. Mr. Haroon Rashid along with the plan for the construction of the building site also furnished bond (Annex. R/5) that they would be bound by any Development. Scheme in the area. It is vehemently contended that the petition was liable to be dismissed on the short ground alone. On merits the framing of the private scheme of the land originally belonging to Ch. Muhammad Shafi is not denied. The case of the Lahore Development Authority is that the Rajgarh Development Scheme was approved by the Lahore Improvement Trust vide Resolution No, 5, dated 18th August, 1962 and by that date the private scheme the land of which had been acquired by the Lahore Improvement Trust had not been developed. It is further contended that the Lahore Improvement Trust was legally competent to acquire any land within the local limits of the Lahore Municipal Corporation for the purposes of any development scheme and that they are legally competent to take any area comprised in scheme framed under section 260 of the City of Corporation Act, and frame a scheme in respect thereof keeping in view the general lay-out of the scheme. However, it is conceded that while taking over such schemes effort is made that the scheme as it is may be adopted with the least violence. So far as the legal objections of the respondents are concerned I shall deal the same after answering the main contentions raised in the writ petition. In order to appreciate the submissions the relevant provisions of the City of Lahore Corporation Act, 1941, the Town Improvement Act and the Land Acquisition Act may be examined.
5. A private scheme framed under section 260 of the City of Lahore Corporation Act, 1941 is commonly known us the Town Planning Scheme as contemplated in Chapter 23 of the said Act.
Subsection (1) of section 260 provides that the Corporation may, and if so required by the Provincial Government shall, within six months of the date of such requisition, direct the Executive Officer to draw up a town planning scheme and the matters to be provided are enumerated in the clauses (a) to (1). The various directions to be made and the provisions contained in these clauses would give an idea that the scheme has to make provisions keeping in view the requirements of the streets, open spaces, etc. After the scheme had been drawn the Chief Executive Officer is required to give a public notice and invite objections and suggestions with regard to the said scheme. The scheme and the objections are thereafter to be forwarded to the Standing Committee within 15 days specified in the notice. The objections are to be considered by the Corporation and after modification the scheme was to be submitted to the Provincial Government who may sanction such scheme or sanction it with such modification as the Provincial Government may think or may refuse to sanction it or may return it to the Corporation for reconsideration and resubmission by a specified date. After the sanctioning of the scheme no person could erect or re- erect any building or take any other action in contravention of any such scheme or of any rule or bye-law made under the provisions of the said Act. Before examining the provisions of Punjab Town Improvement Act, 1922 it would be pertinent to refer to the provisions of section 2 of the City of Lahore Corporation Act, 1941 as the aforesaid Act was subsequent in order and more limited in operation khan the Punjab Town Improvement Act. The City of Lahore Corporation Act had, therefore, to define its relation with the previous Act and that clearly stands explained in section 2 of the said Act which may be reproduced below :- "2. On the commencement of this Act, the Municipality of Lahore shall save as hereinafter provided be deemed to have been with- drawn from the operation of the Punjab Municipal Act, 1911 ' Provided that the Lahore Improvement Trust constituted under the Punjab Town Improvement Act, 1922, shall exercise in the City of Lahore the same powers and perform the same duties under the Punjab Town Improvement Act, 1922, and any other law for the time being in force, as if the Municipality of Lahore had not been withdrawn from the Punjab Municipal Act, 1911." ' he object of the said Act would be evident from the statement of objects and reasons of the Act as given in the Bill was to make provisions or the improvement and expansion of the towns by creation of Trusts tested with the statutory powers to enable them to acquire land and to carry UT such improvements and the extensions as may be found requisite. Ide Punjab Gazette, 1921, Part 1- A, page 162). Section 2 is the definition clause and the definition of 'land' as given in sub-clause (2) is to the following effect :- "(2) "Land" includes land as defined in clause (a) of section 3 of the Land Acquisition Act, 1894.
' The next definition required to be considered is the term "local area" contained in sub-clause (7) of section 2, is to the following effect area" means the area to which this Act has been applied and the area within which a trust has been created for the purposes of carrying out the provisions of this Act.
6. Section 24 provides for the term of "development and expansion scheme". The Trust may, for the purpose of development of any locality within the Municipal limits contained in its local area, prepare" a development scheme". Subsection (3) of section 24 provides as under :- "(3) 'A development scheme' or 'an expansion scheme' may provide for the layout of the locality to be developed, the purpose for which particular portions of such locality are to be utilised, the prescribed street alignment and the building line in each side of the streets proposed in such locality, the drainage of insanitary localities and such other details as may appear desirable."
7. Section 28 makes provision for the combination of schemes and matters of one or more types of schemes or any special features thereof. Section 36 provides that the Trust shall prepare a notice regarding the framing of schemes boundaries of the locality comprised in the scheme and the details of the scheme including the land proposed to be acquired and a general map of the locality comprised in the scheme may be inspected at reasonable hours. The copies of such documents as are specified in the section can be obtained by the public on payment of prescribed fee. Thereafter notice is served on other person whom the Trust has reason to believe after due inquiry to be owner of an immovable property which is proposed to be acquired in connection with the schemes published under section 36. Section 40 relates to the abandonment of scheme, or application to the Provincial Government for its sanction. Section 41 authorised the Provincial Government to either sanction with or without modification, or may refuse to sanction, or may return for reconsideration, any scheme submitted to it under section 40. Section 42 provides for the notification of the scheme sanctioned under the said Act which is to be executed by the Trust.
Subsection (1) of section 42 being relevant is reproduced below :-
(1) The Provincial Government shall notify the sanction of every scheme under this Act, and the Trust shall forthwith proceed to execute such scheme, provided that it is not a deferred street scheme, development scheme, or expansion scheme and provided further that the requirements- of section 27 have been fulfilled."
7. In spite of the fact that there are certain provisions in the Punjab Town Improvement Act, 1922 regarding the acquisition but the remaining provisions of the Land Acquisition Act are applicable.
Section 3-A defines 'land' which is the definition adopted in the Punjab Town Improvement Act, 1922 and may be reproduced below :- "(a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth."
' According to the provisions of the Punjab Town Improvement Act the notification contemplated under section 36 obviates the compliance of section 4 of the Land Acquisition Act. Similarly the notice required under section 6 of the Land Acquisition Act is not to be given in respect of the land to be acquired in a Development scheme if notice under section 38 of the Town Improvement Act has been served. The remaining provisions of the Land Acquisition Act relating to the delivery of Award and the payment of the compensation are applicable in relation to the lands comprised in the scheme which are not relevant for the present purposes. After the examination of the relevant provisions the following conclusions are inevitable :-
(i) That the provisions of the City of Lahore Corporation Act do not. Have the effect of repealing or overriding the provisions of the Punjab Town Improvement Act rather the same have been made applicable in view of section 2 of the City of Lahore Corporation Act, 1941, quoted above ;
(ii) That there is no bar for the framing of a development scheme under section 24 of the Town Improvement Act, 1922 in respect of any area in which the scheme has been framed under section 260 of the City of Lahore Corporation Act, 1941 keeping in view the definition of term "Urban Area" as used in section 24 of the Act, 1922 ;
(iii) That there are provisions in the Punjab Town Improvement Act for raising objections to the framing of the scheme and the inclusion of any land thereto ;
(iv) That a Development Scheme could provide for independent lay out of the Scheme keeping in view the provisions of section 24 therefore, no vested right could be said to have been accrued on account of sanctioning of the Town Planning Scheme ;
(v) That section 28 of the Town Improvement Act did not provide for the combination of the scheme framed under the Act but could combine different types or schemes of the main features thereof. This is abundantly clear from the reading of provision of section 2, quoted above.
(vi) That the Lahore Improvement Trust so far as Town Planning Schemes framed under section 260 of the City of Lahore Corporation Act, 1941 are concerned had to be examined technically and the ultimate approval was by the Provincial Government. The Lahore Improvement Trust was fully conscious at the time of framing of the Development Scheme referred to above that they were acquiring the land in respect of which the Town Planning Scheme had already been sanctioned.
9. Unfortunately there is not much of the case law on the interpretation of the above provisions and the only guidance that I could get was from the two Supreme Court judgments which have been relied upon by both the parties and are given below:
10. In Mian Fazal Din v. Lahore Improvement Trust (1) the Lahore Improvement Trust formulated a composite scheme consisting of a "Development Scheme" and a "Housing Accommodation Scheme" commonly known as Gulberg-III Scheme. This scheme was sanctioned by the Government and the sanction was duly notified in the official Gazette. A plot of land was earmarked in the sanctioned scheme for the construction of a market. Subsequently, however, the Trust made a little alteration and a portion out of the plot reserved for the proposed market was reallocated for the construction of a mosque. It was urged before the Supreme Court that after a scheme had been sanctioned by the Government the Trust was not at liberty to alter or modify the scheme at its own sweet will without consulting the people of the locality concerned or those who are vitally affected by the alteration or modification. The question, therefore, which falls for determination before the learned Supreme Court was whether the Trust was powerless to alter the scheme once it had been sanctioned by the Government without following the procedure laid down for framing of a Scheme under the Punjab Town Improvement Act, 1922. Their Lordships of the Supreme Court examined the provisions of the Punjab Town Improvement Act and the observations relevant for the present purpose are quoted below : "The Town Improvement Act, it is said, is a complete code in itself. Whenever republication was considered necessary, the statute itself had made specific provisions for the same as in subsection
(2) of section 41 and section 45 (b). If, as contended by the appellant, whenever a scheme is modified even to an insignificant extent, it must be republished then the above provisions would have been wholly unnecessary. The very fact that by clause (o) of subsection (2) of section 41 it is left to the discretion of the Government to indicate as to whether the modification is not of such importance as to require republication/shows that it was not the intention of the framers of the Town Improvement Act to insist upon republication of a scheme even in the case of unimportant or minor modifications. Section 45 of the Act is, therefore, to be read in the light of section 41 and reading it in this context it seems that the intention of the statute was that an alteration of a scheme made after its sanction by the Government was not to be published except in the cases specified in the said section."
10. The purpose for which the petitioner is referring the above judgment and the observations of their Lordships must be quoted in extenso : "It is also not disputed by the respondents that where power is given to do a thing in a particular way by a statute, that power includes the power to amend, vary, rescind or alter the act or thing done in the same manner and subject to the same conditions and limitation and furthermore that if such action is likely to affect adversely the personal or property or other rights, privileges or benefits of someone else, then according to the principles of natural justice the persons so affected, must be given a fair opportunity of representing their own cases. But it is contended that this rule is always subject to the intent of the statute itself. Thus if the statute has provided to the contrary, then this general (1) PLD 1969 SC 223 principle will not be available. Even section 20 of the West Pakistan General Clauses Act, it is said, applies if nothing repugnant thereto is provided in the statute concerned."
' The above observations of their Lordships support the contention of the respondents rather than the petitioner. In the present case a remedy was provided by way of raising objections before the sanctioning of the scheme and the petitioner had admittedly not availed of the same and no 'A objections were filed. If the petitioner wanted certain amendments in the scheme keeping in view earlier sanctioning of the Town Planning Scheme the same could be done by approaching the authorities and necessary modification could be made. The contention of the petitioner that he had acquired a vested right as according to the respondents the scheme had not been implemented and undertaking had been given to abide by any scheme which may be framed in the area. Reference may be made to Annex. R/1.
12. In the case of Lahore Improvement Trust v. The Custodian, Evacuee Property, West Pakistan (1).
The facts of this case were that the Lahore Improvement Trust framed a scheme for the construction of a new Campus for a University and two modern housing colonies and a part of the land comprised in the scheme belonged to evacuees when the notices were issued under section 36 of the Punjab Town Improvement Act, the scheme had yet to be finalised and submitted to the Provincial Government for sanction under section 40 of the Town Improvement Act. The validity of the notices under section 36 of the Punjab Town Improvement Act was attacked on the ground that qua the evacuee land sanction of the Central Government under section 12 of Pakistan (Administration of Evacuee Property) Ordinance, 1949 was necessary before the Trust could give notice under section 36 of Act IV of 1922. This contention was repelled by their Lordships by holding that section 12 of the Ordinance was no bar to issuance of the notice under section 36. The interpretation by their Lordships of the Supreme Court of sections 24, 28 and 36 of the Punjab Town Improvement Act supports the contention of the respondents rather than the petitioners. The New Campus Scheme for the University and two residential Colonies were assailed on the ground that it was outside the purview of the Punjab Town Improvement Act, 1922. Their Lordships repelled the contention by observing that the construction of a new Campus for the University was for the development of the city and the real beneficiaries of the scheme were the citizens of Lahore generally and the student community in particular. At page 833 it was observed as under :- "Earlier we have reproduced in extenso the provisions of sections 24 and 28 which inter alio authorise the Trust to frame a development scheme within a municipal area. A plain reading of these sections makes out that a scheme framed under section 24 may provide for all or any one of the matters provided in it. A scheme may thus provide for acquisition of land only and that seems to be the case here. The University Campus was to be developed by the University, the scheme for developing a housing colony in 221.84 acres had been prepared separately and submitted to the Government for sanction as mentioned in the letter of the Chairman, reproduced earlier, while the scheme for development (1) P 1.. D 1971 SC 811 of 608.70 acres was to be prepared at a later stage. It would not, therefore, be said that the scheme prepared by the Trust was no scheme in the eye of law at all, because it did not provide for relaying out of land comprised in the scheme of laying out and alteration of streets, earmarking open spaces, raising, lowering or reclamation of land, drainage, water supply and lighting."
13. In relation to section 28 of the Town Improvement Act, it was observed as under : "In dealing with section 28 of the Town Improvement Act, reproduced above, the learned Judges again fell in error in making the assumption that a scheme which did not make provision for all the matters enumerated in the section was no scheme at all under the Act. The section expressly provides that the scheme may provide for all or any of the matters set out therein. The scheme in respect of which notice was given was thus amply covered by the provisions of sections 24 and 28 of the Town Improvement Act, and the notice issued in respect of it under section 36 of that Act was quite valid in law."
' Further observations at page 835 may also be quoted : "It does not mean that land is acquired by the Trust for those individuals as an agent. In the instant case the land was acquired for a development scheme as evisaged in sections 24 and 28 of the Town Improvement Act and its legality could not be challenged on the ground that it was subsequently disposed of two other persons including a corporate body. As held earlier the acquisition of land by the Trust was within the purposes of the Act and on' that ground alone the acquisition of the land comprised in the scheme was valid. None of the decided cases on which the learned Judges of the High Court have relied in support of this ground is, therefore, applicable to the facts of the present case."
14. The preliminary objections raised by the respondent cannot be also ignored. As already pointed out that the petitioner did not raise the objections to the scheme. The first notification was published in 1962 and thereafter the scheme was sanctioned in 1971. The writ petition having been filed in 1979 was barred by laches and no explanation has been given as to the conordinate delay in filing of the present constitutional petition. Reliance in this behalf may be placed on New Pakistan Transport Co. v. Member Board of Revenue, etc. (1) and Nazeer Hussain Shah v. Inspector- General of Police (2). In New Kisan Transport's case at page 754 it was observed as under :- "9. As a general rule, the superior Courts are averse to granting relief, in the exercise of their extraordinary power of judicial review, to parties who are guilty of laches or delay in invoking this jurisdiction, the reason being that by their omission to act promptly such parties may be deemed to have accepted the orders of the administrative authorities, and it would be unfair to disturb, at their instance, rights and obligations which had been settled and finalized long ago under the relevant law. However, in suitable cases exemptions have been made when the delay is satisfactorily (1) PLD 1968 Lah. 748 (2) PLD 1977 Lab. 924 explained, or otherwise the circumstances are such as to justify intervention by the Courts. Certain principles are discernible from decided cases which may be noticed here."
15. In view of the above discussion this writ petition has no force and is hereby dismissed with no order as to costs.
' R. S. As. Nos. 830 and 1002 of 1979
15. It has already been indicated above that the two appeals quoted above raised the same questions of law and fact as involved in the writ petition already discussed above. The two appeals may now be taken up.
16. Mst. Rashida Begum, respondent No, 1, in the two appeals filed two 'Civil Suits in 1973 against Mst.
Saeeda Imtiaz Khatoon, the Town Planner, L. D. A. Etc. To permanently restrain her from alienating or closing the way in Vishno Street No, 73-A, Sham Nagar, Lahore and to challenge transfer letter No, T.
P. Miscellaneous/19980, dated 22nd April, 1974 in her favour. Both the suits were consolidated and the proceedings were taken up in the suit for perpetual injunction. Mohammad Afzal Khan was added in the appeal on an application under Order 1, rule 10, C. P. C. Both the suits were dismissed by the learned Civil Judge, Lahore, vide his judgment and decree dated 27th September, 1978. Two separate appeals were filed and the learned Additional District Judge, Lahore vide his judgment dated 20th September, 1979 accepted the appeals and ordered the two suits to be decreed.
17. The facts as are disclosed from the pleadings were that Mst. Rashida Begum purchased plot No, 5, situate in Vishno Street, Sham Nagar, Lahore from Mst. Ahmadi Begum through a registered sale deed after approval of Scheme No, 300/BS and she constructed a house thereon. According to the Town Planning Scheme framed in respect of the land belonging to Ch. Mohammad Shafi a 20 feet wide street was given to her on western side of the plot No, 5 and on coming to know about the blocking of the said street by Mst. Syeda Imtiaz Khatoon she filed her earlier suit for permanent injunction and when it came to light that a Letter No, T P Misc./19980, dated 22nd April, 1974 had been issued superseding the Previous Town Planning Scheme and including khasra No, 2154 in which plot No, 5 falls in Rajgarh Development Scheme she filed a second suit on 16th May, 1974 on the ground that there could be no alteration in the Additional District Courts its execution and that, too, without service of the public notice. This suit was contested. A number of objections were raised as to the maintainability of the suit. It was also submitted that the respondent No, 1 had not come to Court with clean hands because of having raised construction without a duly sanctioned plan. The existence of a street, as stated in the plaint, was also denied. On the pleadings of the parties the following issues were framed :
(1) Whether the suit is barred under section 92, C. P. C. ? 0. P. D.
(2) Whether the plaintiff has any locus standi to file the present suit ? 0. P. P.
(3) Whether the plaintiff has approached the Court with unclean hands ? 0. P. D.
(4) Whether there exists a street of 20' width on the western side of Plot No, 5 situated in Vishno Street, Sham Nagar, Lahore ? 0. P. P.
(5) If Issue No, 4, is true whether the defendant has any legal sanction to occupy/sell the same ? 0.
P. D.
(6) Relief.
19. The learned Additional District Judge, Lahore compared the lay out of the Town Planning Scheme with the Rajgarh Development Scheme and found that 20 feet wide street passed through Khasra No, 2154 had been deleted and in the alternative 30 feet wide road had been proposed on its southern side. It was further observed that the later part of the impugned letter was incorrect as Khasra Nos. 2154, 2155 and 2156 were not mentioned in the development scheme being the notification dated 21st January, 1971. This fact has been explained by the learned counsel for the appellant that in the schedule to the notification only khasra numbers constitute the boundaries had been mentioned and that these khasra numbers are situate in the middle. The objection of the respondent that these khasra numbers were not mentioned in the Rajgarh scheme was absolutely uncalled for as these khasra numbers are situate in the middle and admittedly the entire land of the Town Planning Scheme had been acquired in relation ion the Rajgarh Development Scheme.
The conclusion of the learned Additional District Judge cannot be legally sustained. As regards the validity of the acquiring of the area of the Town Planning Scheme by the Lahore Improvement Trust in connection with the Rajgarh Development Scheme the entire discussion made in connection with the writ where similar question had been aimed shall ipso facto apply to these appeals. The Lahore Improvement Trust was competent to frame a scheme and acquire any land situate in the urban area including c the one in respect of which a Town Planning Scheme had been earlier framed under section 260 of the City of Lahore Corporation Act, 1941.
20. In view of the above discussion the appeals are accepted, the judgment of the learned Additional District Judge, Lahore, dated 20th September, 1979 is set aside and that of the learned Civil Judge, Lahore dated 27th September, 1978 is restored. However, in view of the difficult question involved the parties shall bear their own costs.