' IJAZ-UL AHSAN, J.--- The petitioners challenge judgment and decree dated 12-9-2007 passed by a learned Civil Judge at Lahore which was upheld in appeal, vide judgment and decree dated 18-9- 2008 passed by a learned Additional District Judge, Lahore.
2. The petition is being decided along with Civil Revision No,1066 or 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. The learned counsel for the petitioner is not present today despite notice for today's hearing. The learned counsel for the petitioner was heard on the last date of hearing and he matter was adjourned to enable the learned counsel for the respondent to make his submissions, who has completed his arguments today. The learned counsels for both parties have also submitted detailed written arguments, which have been examined. In my opinion, no useful purpose would be served either by dismissing the petition for non-prosecution or by adjourning the same any further.
4. Brief facts of the case are that Ch. Kaleem-ud-Din and others were owners of certain land located near Samanabad More, Lahore. In 1954, they floated a private residential scheme consisting of residential plots and offered such plots for sale. The scheme is presently known as Gulfishan Colony. Most of the plots located in the said scheme were sold to third parties: Few plots out of the said land were not sold by the owners of the scheme, which they subsequently attempted to sell. A civil suit tilted Jalil Ahmad v. Kaleem-ud-Din was filed by some of the residents of the scheme praying that the said land may be kept unsold and reserved as park or open space in the residential colony. It appears that during pendency of the suit, the parties entered into a compromise in terms of which the suit was decreed on 17-12-1970. According to the compromise the demand for open spaces/park was given up against an undertaking to construct and improve streets etc.
5. The respondent purchased Plot. No,81 in the said scheme on 22-12-1970 for valuable consideration. Mutation was duly sanctioned in her favour on 13-3-1971. She also took over physical possession. Subsequently, she constructed a room on the plot and obtained water supply and electricity connection. It appears that subsequently, the then Lahore Metropolitan Corporation approved the scheme with the name of Gulfishan Colony under section 75 of the Punjab Local Government Ordinance, 1979 (PLGO) and sent a letter to the Secretary, Local Government, Government of Punjab for approval or the notification in this regard. Respondent No,1 filed a suit for declaration and permanent injunction against. L.M.C. Wherein she challenged order dated 25-1- 994 passed by the Administrator, sanctioning the scheme and recommending that the land be taken over by L.M.C. For the purpose of being developed as a public park. The record indicates that the Government refused to grant any such approval on the ground that the Government was not entrusted with any such authority to take over private property and convert it into a park without following the due process of law. It is significant to note that the respondent No,1 owned the plot since 22-12-1970, while the impugned order was passed on 25-1-1994. The respondents, therefore, took the stance that the LMC was not authorized to declare or sanction any scheme involving private property and even otherwise it was in the domain of Lahore Development Authority (LDA) to deal with such matters. The record also indicates that this controversy had earlier been agitated through Writ Petition No, 5128 of 1994, Writ Petition No,9315 of 1994, Writ Petition No,9117 of 1997 and I.C.A. No,1083 of 1997. Details of that litigation need not be given. Suffice it to say that the matter was not finally determined and it was left to the Civil Court to decide the controversy between the parties in accordance with law after recording evidence.
6. The record also indicates that originally Ch. Kaleem-ud-Din etc. Had prepared a residential scheme titled Gulfishan Colony and submitted the same together with site plan for approval of Lahore Improvement Trust/L.M.C. The site plan submitted by the owners showed residential plots; roads and open space for children park.. Certain objections were raised against, the site plan and the scheme was not approved. The stance taken by the respondent in her suit was that the petitioners had no lawful authority to take her property and order dated 25-1-1994 was illegal and without lawful authority. The suit was contested. Out of the divergent pleadings of the parties, the learned trial court framed the following eight issues: Issues
(1) Whether the suit is not maintainable in view of sections 54 and 56 of Specific Relief Act? OPD.
(2) Whether the plaintiff has not come to the court with clean hands? OPD
(3) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD.
(4) Whether the plaint is liable to be rejected under 0.V11, Rule 11 of C. P. C.? OPD.
(5) Whether the disputed plot is utilized by the public as a public place and its sale is illegal and against the scheme of the defendant? OPD.
(6) Whether the impugned order dated 25-1-1994 illegal and without lawful authority hence, the same is liable to be set aside? OPP:
(7) Whether the plaintiff is entitled to a decree for declaration and permanent injunction on the basis of facts mentioned in the plaint as prayed for? OPP.
(8) Relief.
' Issues Nos.5 and 6 are the core issues. The parties adduced their respective evidence, which included oral as well as documentary evidence. After hearing the parties the learned trial court decreed the suit of the respondents. The petitioners filed an appeal, which did not succeed.
7. I have heard the learned counsel for the parties length. The learned counsel for the petitioners submits that the learned subordinate courts misread the evidence and the findings recorded by the learned subordinate courts on the issues are based on surmises and conjectures. He submits that the learned subordinate courts failed to appreciate that the plot in question is an amenity plot and its character should have been preserved. He submits that there was ample evidence to indicate that plot in question was in use and occupation of the inhabitants of the locality and is being used as a children park, it was earmarked by the competent authority for the said purpose.
He, therefore, points out that the same could not have been alienated in favour of a private party and any such alienation was illegal and void.
8. The learned counsel for the respondent has defended the findings of the learned subordinate courts.
9. As stated above, issues Nos.5 and 6 are the core issues. Onus to prove issue No,6 was on the respondent: She produced Muhammad Tariq son of Bashir Ahmad as P.W.-1. He deposed that the scheme as well as the master plan of the scheme was not approved or sanctioned by any competent authority. On 27-11-1954, vide Resolution No,447, LMC rejected the scheme by raising certain objections to the effect that until and unless certain land was reserved for school, hospital and park, the scheme could not be approved. The resolution was produced and placed on record as Exh.P.2. The witness deposed that the objections were not redressed and therefore, the scheme remained unapproved. He further pointed out that the property owned by the respondent was comprised in Khasra Nos.2948, 2949 and 2950. The said Khasra numbers did not fall within the park.
In the year 1969 Jalil Ahmad filed a suit against the owners or the scheme seeking vacation of the suit land for the purpose of park. The owners of the scheme took the stance that the land in question was neither earmarked for park, nor had the scheme been approved by the competent authority, therefore, they had a right to sell the land. The suit ended in a compromise between the parties. In terms of the compromise owners of the scheme got the roads carpeted and got effected other development works. The compromise was incorporated in the judgment and decree of the Civil Judge dated 16-2-1970. Subsequently, the suit property was allowed to be sold to private parties including the respondent. The respondent purchased her plot on 22-12-1970 through a registered sale-deed and a mutation was also sanctioned in her favour. The respondent also got the site plan sanctioned by the competent authority and also got some construction done. During the course of proceedings MCL, conceded that the scheme had not been sanctioned and the objections raised in 1954 had not been removed till 25-1-1994.
10. Amtul Rasheed widow of, Rashid Ahmad appeared as P.W.-2. She deposed that she had purchased Plot No,77 through a registered sale-deed, which was placed on record. Mutation was also sanctioned in her favour. She deposed that MCL, while sanctioning the scheme had not given her an opportunity of being heard, therefore, order dated 25-1-1994 was illegal and in violation of law, Safdar Ali Khan son of Akhtar Ali Khan appeared as P.W.-13. He deposed that he was a resident or Gulfishan Colony. The suit property had neither been transferred to MCL, nor any scheme had been sanctioned and notified. He further stated that the suit property had never been reserved for children park.
11. During the trial the official witnesses examined by the petitioners conceded that the original notification regarding approval of the scheme was not available nor was the original record of Gulfishan Colony in their possession. D. W.1 produced a copy of the scheme which, neither contained, signatures of the owners nor those of competent officials. Further the property in question was not mentioned as amenity plot, in the relevant resolution. The learned subordinate courts, therefore, came to the conclusion that there was no evidence on record to show that the land in dispute was covered by any sanctioned scheme or plan as alleged by the petitioners, it was noticed that in an earlier suit titled "Anjman-e-Falah Bahbood Mst. Hajran Bibi etc." respondent No,2 had taken the stance that "no proper procedure for sanctioning of the scheme was adopted while passing order dated 25-1-1994 under section 75 or the Punjab Local Government Ordinance, 1979 and without calling the owners of the land, a residential Scheme cannot be sanctioned."
12. It also appears from the record that an inquiry was conducted by the Special Senior Magistrate of LMC dated 22-10-1995 and 16-7-1996. The inquiry report was also exhibited as Exh.D5. The Inquiry Officer round that neither the scheme nor the master plan had been approved and sanctioned.
The suit plot had not been reserved for children park. It is nowhere available on record that the so- called reserved space for public park had been transferred free of cost by the owner or owners to MCL, before sanctioning of the scheme.
13. Section 75 of the Punjab Local Government Ordinance, 1979 provides a procedure for sanctioning of master plan for similar schemes. Contents of section 75 are reproduced below for facility of reference.
"Whether a master plan has been drawn under section 74 and such master plan has been approved with or without any modifications by government, no owner of land exceeding such area as may be specified in this behalf in the Master plan so approved shall develop the site or erect or re-erect a building on any plot of land covered by the master plan except in conformity with the provisions of a Site Development Scheme sanctioned or the area in the manner prescribed.
' Where a master plan has not been drawn up under section 74 no owner of land shall develop the site or erect or re-erect any building, on any plot or land except in conformity with the provisions of site development Scheme sanctioned by the urban local council.
3. An owner of land who wishes to develop a plot or a piece of land belonging to him for which no sanctioned site development scheme exists or where the proposed development is not in conformity with the existance of his development scheme. And the urban local council may, on such terms and conditions and on payment of such fees or charges as may be laid down by it in its bye law, sanction the same. Provided further that the urban local council may, after notice and for reasons to be recorded, cancel, modify or withdraw the sanction at any time before construction in pursuance of the scheme has been commenced or made.
' Among other matters, the Site Development Scheme shall provide for
(a) the division of site into plots;
(b) provision for streets, drains and open spaces;
(c) reservation of land for public utility services to be transferred to the urban local council;
(d) provision of acquisition of land by the urban local council if any;
(e) the works that shall be executed at the cost of the owners of the the period during the area shall be developed.
5. The land reserved for public utility services in the site development scheme shall be transferred free of cost by the owner or the owner to the urban local council before the sanction of the scheme. Such land shall not be converted or used for any purpose other than that shown in the scheme."
14. It appears that in view of the complications involved in the dispute, the opinion or the Senior Legal Advisor of LMC was also sought, who opined as follows:- "In my opinion it will not be proper and in the fitness of things to resume the same round of litigation regarding the land about which the court has already given its decision. The present vendees/purchasers have become owners and they cannot be deprived of their rights without cogent reasons. They have not been asked and summoned by the learned Administrator MCL at the time of signing the order dated 25-1-1994. So this is a violation of the said rules and bylaws. If at all the wants to acquire this land, the MCL can purchase the same by compensating the owners of the land in dispute by paying market price."
' On the basis of the aforesaid legal opinion, the Chief Corporation Officer in his report dated 2-11- 1996 (Mark-A,) reported as follows:--- "In the light of above discussion decision of civil court and Additional Commissioner, Lahore opinion of SLA and SSM Zone-VI it can be safely concluded that should have nothing to do with the private property of Hajran Bibi and others: The consent decree of Civil Judge dated 16-12-1970 decided the matter between the parties and none of the parties has gone for appeal at any superior forum. The approval of the administrator MCL on 25-1-1994. After 24 years of decree is not understandable. This order being irregular may be withdrawn. The plans of private owners may be revalidated/approved as per MCL bye-laws."
' The record indicates that on the basis of aforesaid document, the Administrator vide order dated 16-1-1997 (Exh.P.3) stated as follows:- "The Senior Legal Advisor of MCL has opined in the light of the orders of Civil Judge and decision of the learned Additional Commissioner, the orders of AMCL dated 25-1-1994 is not valid to the extent it violates the decree of the learned Civil Judge as order dated 16-12-1970 has attained finality. It may be pointed out that the applicant/persons who purchased the land in the year, 1970 have no fault and they are still agitating to allow to raise the construction of their properties and the sanctioned plan be revalidated. Senior Special Magistrate Zone-6 also conducted an inquiry on the orders of AMCL and he is of the view that proceeding of MCL dated 25-1-1994 regarding sanctioning of the scheme is not correct. The petition of Mst. Hajiran Bibi is genuine and based on facts. He has opined that corporation cannot take over private property for developing a park arbitrarily. He further contended that no approved plan or scheme is available on record. In view of the above, it has been decided that MCL will not object to the raising of constructions on the Plots Nos.90, 91 93, 94, 78, 79 purchased by husband of Hajiran Bibi and others in the year 1970."
15. From the perusal of the facts, circumstances and documentation, it is quite evident that the order dated 25-1-1994 was illegal and in violation of the law and procedure on the subject. More iniportantly, it was in violation of the rights of the respondents, who had registered sale deed and mutations in their favour and had a lawful right, title and interest in the property, which was sought to he taken over by the petitioners without due process of law. I, therefore, find that the conclusions arrived at by the learned subordinate courts were correct, ' valid and fully supported by the record.
16. Onus to prove issue No,5 was on the petitioner. Saleem Jehangir, Additional Town Officer Planning City District Government appeared as D. W.1 and deposed that Ch. Umar Hayat, Kaleem- ud-Din floated a residential property under the name and style of Gulfishan Colony in the year 1954. Later the same was placed before the Lahore Improvement Trust for the approval of the lay- out plan or the scheme, however, nothing was produced by the petitioner to indicate that either the lay out plan or the scheme was ever approved. The witnesses produced by the petitioners showed their ignorance on the question whether the suit property was reserved for 'open space by the original owners of the colony., They also failed to produce any document to show that the suit property was reserved for a park. It was also conceded that the respondent was in possession of the plot purchased by her.
7. It is interesting to note that in an earlier suit, the civil court had passed following order on 12-3- 1971--- "The learned counsel for the Lahore Improvement Trust and the LMC also state that no plan or scheme has been sanctioned in respect of the disputed open space. I have heard the arguments of the learned counsel on both sides and also perused the record. Nothing has been produced to show that land in dispute is covered by any sanctioned scheme or plan as is alleged by the petitioners. There is also nothing to show that the said land is in used and occupation of the petitioners."
I have gone through the evidence produced by the petitioners and have also examined the documents available record. The petitioners did not succeed in establishing the fact either a scheme had been duly approved by MCL or Lahore Improvement Trust or that the suit plots were reserved for the purpose of open space or amenity plots.
18. It is noticed from the record that the petitioners did not produce much evidence to discharge the onus of proof placed on them. From a perusal of the entire evidence produced by the parties, I am in no manner of doubt that LMC never sanctioned any scheme for development of the alleged open space, nor was any lawful order, site plan or notification made or issued in this regard. The plots in question belong to the respondents, who are bona fide purchasers/owners of the same.
These do not, by any stretch of the language, fall within the definition of amenity plots.
19. Keeping in view what has been discussed above, the findings recorded by the learned subordinate courts are quite legal valid and supported by the record. No illegality or irregularity on the part of the learned trial/subordinate courts had been pointed out to me. Further, it' is evident that the learned subordinate courts have not misread or ignored any evidence. Consequently, I find no merit in this petition. It is accordingly dismissed with costs throughout.