' IJAZ-UL-AHSAN, J. This petition is directed against the judgment and decree dated 16-10-2008 passed by a learned Civil Judge, Lahore, which was upheld in appeal vide judgment and decree dated 2-5-2009 passed by a learned Additional District Judge. Lahore.
2. This petition is being decided along with C.R. No,1235 of 2009 because common questions of law and fact arise in both matters, which relate to the same scheme. Two different orders are being passed owing to difference of parties. However, the legal reasoning in both matters is the same.
3. Brief facts of the case necessary for decision of this petition are that the respondents filed a suit for declaration and permanent injunction to the effect that an order dated 25-1-1994 passed by the Administrator, Lahore Municipal Corporation was illegal, without lawful authority and of no legal effect and to restrain the Official, defendants in the suit from interfering in possession of the respondents regarding the suit property.
4. According to the facts narrated in the plaint, the predecessor in interest of the respondents namely Bashir Ahmad Bhatti purchased 8 plots of land bearing Nos.78, 79, 85; 86, 90, 91, 93 and 94, in aggregate measuring 4 Kanals and 2 Marlas and 31 square feet situated in Gulfishan Colony, Multan Road, Lahore.
5. The sale was undertaken through a sale-deed, which was duly registered by the concerned Sub- Registrar on 23-12-1970. The respondents claimed actual possession of the suit property except two plots, which had been sold before filing of the suit. It is significant to note that no body challenged the validity of the aforesaid registered sale-deed and the relevant mutation.
6. It was alleged that the Administrator, Lahore Municipal Corporation had approved a scheme with the name and style of Gulfishan Colony under section 25 of the Punjab Local Government Ordinance, 1979. In the said scheme plots belonging to the respondents were taken over unilaterally, without due process of law and without any compensation to be treated as amenity plots. According to the respondents, the Administrator had no lawful authority to announce or notify a scheme in the manner adopted vide order dated 25-1-1994.
7. The respondents had earlier filed W.P. No,911 of 1997 before this Court challenging order dated 25- 1-1994. The petition was dismissed with the direction to the respondents to seek their remedy by filing a civil suit in a competent court. The suit was originally filed against three defendants namely the Lahore Municipal Corporation, Dr. Majeed Mirza and Mst. Saleema Akhtar wife of Muhammad Akram. All the three defendants also filed their written statements. However, subsequently, defendant No,1 was substituted by the Town Nazim, Samnabad. Lahore and defendant No,2 was replaced by Fasih-ud-Din son of Zia-ud-Din, who was then the President of Anjuman-e-Falah-o- Behbood, Gulfishan Colony, Lahore.
8. Out of the divergent pleadings of the parties, the learned trial court framed as many as fifteen issues. Issue No,14, being the core issue, is reproduced below:--- "Whether the plaintiffs are entitled to get declared the order dated 25-1-1994 and other proceedings taken in pursuance of the order without lawful authority and of no legal effect with permanent injunction? OPP ' It may be pointed out that the learned counsel appearing on behalf of the petitioner did not address arguments on any other issue. The focus of his arguments was that plots earmarked as amenity plots cannot be converted to any other use. However, the question involved here is not whether amenity plots can be converted to any other use. The main controversy between the parties is, whether privately owned property can arbitrarily be included in a scheme and such privately owned property can be taken over without due process of law and compensation and converted into so-called "Amenity Plots"
9. Both the parties adduced their evidence before the learned trial court. The respondents produced three witnesses namely Muhammad Tariq Bhatti (P.W.1), Safdar Ali Khan (P.W.2) and Wan Ahmad Mian (P.W.3). In addition, they produced and exhibited 29 documents including certified copies of the registered sale-deed, mutation of inheritance, order of the Additional Commissioner, Maps Nos.1193/71 and 1194/71, opinions of the Legal Advisors of the Lahore Municipal Corporation, copy of an inquiry report conducted by a Senior Magistrate of the Corporation etc.
10. The petitioners produced three witnesses namely Rai Ejaz Hussain, Town Officer, Planning and Coordination as D.W.1, Sh. Fasihud-Din as D.W.2 and Muhammad Azam as D.W.3. One court-witness namely Shahid Butt, Senior Clerk, Data Gunj Bakhsh Town was also examined as C.W.1. The petitioners also produced documentary evidence by way of proceedings of meeting dated 20-9- 2007 regarding Anjuman-e-Falah-o-Behbood, Gulfishan Colony and photographs of the suit property.
11. The main focus of the case of the petitioners before the learned subordinate courts as well as before this court is that the suit property is an amenity plot, which was always meant and earmarked to remain vacant and to be used as a park. However, in order to succeed, the petitioners were required to establish that there was a master-plan that had been approved by a competent authority in which the particular portion of the scheme had been earmarked as an amenity plot. On the basis of the said master-plan, the impugned order of the Administrator, Municipal Corporation, Lahore dated 25-1-1994 could be defended on the ground that it had been passed on the basis of the provisions of section 74 of the Punjab Local Government Ordinance, 1979.
12. The learned subordinate courts after recording evidence and hearing the learned counsel for the parties, came to the conclusion that the impugned order dated 25-1-1994 had been passed illegally and without following the proper procedure and affording an opportunity of hearing to the owners of the property, who were directly affected by the said order. Consequently, the suit filed by the respondents was decreed. On appeal, the learned first appellate court upheld the judgment and C decree dated 16-10-2008. Hence the present revision petition.
13. The learned counsel for the petitioners submits that the learned subordinate courts failed to appreciate, the evidence in its correct perspective. He points out that the matter relates to encroachment of a park, which was so declared by a competent authority when the Housing Colony was created. According to him, an area measuring 9 Kanals and 13 Marlas reserved for the park was required to be developed by the Punjab Horticulture Association. He further argues that the witnesses produced by the petitioners supported the claim that the suit property was D an amenity plot and was also approved as such by the Lahore Municipal Corporation. By approval of the housing scheme, the open spaces stood vested in the Corporation and the alleged owners stood divested of their right to undertake construction on the said plots. He, therefore, argues that the judgment and decrees of the learned subordinate courts suffer from misreading and non reading of evidence and are liable to be set aside.
14. The learned counsel for the respondents as well as respondent No,4, who has appeared in person, have supported the impugned judgments and decrees of the learned subordinate courts.
He points out that the concurrent findings of fact recorded by the learned courts below cannot be interfered with in exercise of revisional jurisdiction of this Court.
15. I have heard the learned counsel. For the parties at length and have also gone through the record with their assistance. The onus to prove Issue No,14 was on the respondents. Muhammad Tariq Bhatti son of Bashir Ahmad Bhatti appeared as P.W. I and deposed that his father purchased the land measuring 4 Kanals and 4 Marlas through registered sale deed Exh.P.l. The said land consisted of 8 plots, out of which 2 had been sold. No serious objection was raised regarding the validity of the said sale and genuineness of the sale-deed. It also appears that after the death of Bashir Ahmad Bhatti (the predecessor of the respondents); inheritance mutation in respect of the suit property was attested in favour of the respondents, which was placed on record as Exh.P.2. It also appears from the record that Bashir Ahmad Bhatti had applied for sanction of plans for construction regarding Plots Nos.90 and 91. The application was turned down on 10-5-1971.
However, he filed an appeal. His appeal was accepted by the then Commissioner Lahore vide order placed on record as Exh.P.3. Resultantly, Maps Nos.1193/71 and 1194/71 dated 25-8-1971 were sanctioned by the Lahore Municipal Corporation for permission to undertake construction on the aforesaid plots.
16.It is important to note that in a suit titled "Khalil Ahmad Khan v. Sheikh Kaleem-ud-Din", filed in 1969, the Lahore Municipal Corporation, which was a party therein, denied the reservation of open space in the scheme, in its written statement. ,Copies of the plaint, written statement and the consent decree were also placed on record, which have been examined by me. It also appears from the record that an application was filed, by the petitioner before the Lahore Municipal Corporation seeking an order under section 75 of the Punjab Local Government Ordinance, 1979 relating to the suit property and its use and development as an amenity plot. Upon a report of the Town Officer, Planning and Coordination, the Administrator, Lahore Municipal Corporation passed the impugned order dated 25-1-1994 i.e. Exh.P.9. It is prima facie evident from a perusal of the order that the same was passed without hearing the respondents, who were directly affected by the same. The legality of this order is questionable.
' It also appears from a perusal of the record Exh.P.17 that Anjuman-e-Falah-o-Behbood, Gulfishan Colony also filed a suit in this regard. Which was dismissed on 29-3-2000. No appeal was filed against the same.
17. My attention has also been drawn to the opinions given by the Legal Advisors of Lahore Municipal Corporation, the report of Senior Special Magistrate and the Deputy Director Horticulture; all of whom were unanimous in giving their findings in favour of the respondents. P.W.2 Safdar Ali Khan, who appeared as a witness, deposed that his residence was about 100 meters away from the disputed property, which was in possession of the respondents.
18. Rai Imtiaz Hussain, Town Officer Planning and Coordination, Samnabad appeared as a defense witness. He stated that the Town Municipal Administration had submitted its written statement and they supported the stance that the order dated 25-1-1994 passed by the Administrator, Lahore Municipal Corporation was a void order. In cross examination, however, he,admitted that no record regarding the colony in dispute was available with the Town Municipal Administration or had been received from the Lahore Municipal Corporation. The learned trial court also summoned the record of Data Gung Bakhsh Town, Lahore. Its record keeper appeared as a witness. He submitted that he brought the entire record of Gulfishan Colony. He, however, submitted that no master- plan/notification was available in the record or was within his knowledge. Petitioner No,1, who appeared as D.W.2 stated that the map of the colony showed the disputed property as a park.
However, he admitted in his cross-examination that he could not provide a copy of the approved map of the colony. The other witness produced by the petitioner also made oral assertions regarding the suit property being earmarked as a park, but no documentary evidence in this regard was forthcoming.
19. It is pertinent to mention that as 'against predominantly oral evidence, which was produced by the petitioners, the respondents produced at least 29 credible documents, which were placed on record. Exh.P.1 is the attested copy of the registered sale-deed, which shows that the predecessor in interest of the respondents purchased 8 plots for valuable consideration through a registered sale- deed. Exh.P.2 is Fard Malkiat in favour of the respondents, which shows that they inherited the property through Mutation No,24667. These documents were not challenged, therefore, ownership of the respondents, with regard to the suit property, is undisputed. Exh.P.3 is the order of the Additional Commissioner through which the predecessor in interest of the respondents Bashir Ahmad Bhatti was permitted to raise construction of Plots Nos.90 and 91. Exh.P.4 and Exh.P.5 are the approved maps issued by the Municipal Engineer. Exh.P.7 is a copy of the order dated 12-3-1971 through which an application under Order XXXIX, Rules 1 and 2 was rejected in the suit titled "Sajjad Hussain v. Saleem-ud-Din". It was observed by the learned court that the Lahore Improvement Trust and LMC had stated that no plan or scheme had been sanctioned in respect of the disputed open space, which is the subject matter of the present lis Exh.P.9 is the impugned order dated 25-1- 1994 through which the scheme in the name of Gulfishan Colony was sanctioned under section 75 of the Local Government Ordinance, 1979. Exh.P.10 is the copy of the amended plaint of the suit titled "Anjuman-e-Falah-oBehbood v. Hajran Bibi etc.", which was dismissed on 29-3-2000.
20. It is significant to note that no appeal was preferred against such dismissal. In the said suit, the Corporation had submitted its reply. In paragraph-5 of its written statement, the Lahore Municipal Corporation stated that "no procedure for sanctioning, of scheme was adopted whit passing order dated 25-1-1994 under section 75 of the Punjab Local Government Ordinance, 1979 and without calling the owners of the land in a residential scheme, such scheme cannot be sanctioned".
Therefore, the Senior Legal Advisor of Lahore Municipal Corporation observed in his opinion Exh.P.12 that the purchasers were neither asked nor summoned by the Administrator, MCL at the time of signing order dated 25-1-1994, which was violation of the rules.
21. Another important document, which is available on record is Exh.P.14. This is a report of Senior Special Magistrate, which states that the order dated 25-1-1994 appears to be fictitious on account of the fact that no approved plan or map or original order was available on record. It was on the basis of this report that the Administrator, Lahore Municipal Corporation communicated to the Secretary Local Government through letter No,85TM/MCL/97 dated 16-1-1997 Exh.P.15 for cancellation of order dated 25-1-1994. Exh.P.26 is an attested copy of the order of the Administrator MCL which he opined as follows:-- "In the light of the above discussion, the decision of the civil court and Additional Commissioner, Lahore, opinion of SLA and SSM Zone-IV, it can be safely concluded that MCL has nothing to do with private property of Hajran Bibi and others"
22. The petitioners failed to convince the learned subordinate courts as well as this Court that there was any notification or any other legal document to show that a colony was legally sanctioned and that the impugned order dated 25-1-1994 was passed after fulfilling all legal and statutory formalities. I find that sections 74 and 75 of the Punjab Local Government Ordinance, 1979 are not attracted to the facts and circumstances of the present case. The necessary prerequisite for application of the aforesaid provisions of law is that a master-plan should have been prepared with survey of the local area on the basis of which the necessary orders could have been passed after hearing the affected parties. I find myself in unqualified agreement with the learned trial court that if at all the Lahore Municipal Corporation or its successors want to acquire the suit property, they can purchase the same by paying the requisite compensation to the owners of the land in dispute. There is nothing on record by way of documentary evidence that may even 1G remotely suggest that the suit property was ever lawfully earmarked as an amenity plot or an open space.
23. The learned counsel for the petitioner has not been able to convince me that the learned subordinate courts have acted illegally or with material irregularity. Further, no misreading or non- reading of evidence has been pointed out to me. After going through the entire record. I have arrived at the same conclusions as the learned subordinate courts. I find no convincing reason to set aside, modify or alter the findings of the learned subordinate courts, which are affirmed and upheld.
24. For the aforesaid reasons, I find no merit in this petition, which II is accordingly dismissed.