' ATIR MAHMOOD, J.---Through this constitutional writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the legality of letter No . LDA/DLD-V /6108 , dated 28-1-2009 and letter No, LDA-DLD-II/7702, dated 1-9-2006 issued by respondent No,2 (Director Land Development, Lahore Development Authority, Lahore).
2. The cause of action as given in the writ petition is that the petitioner is owner in possession of land measuring 1 kanal-2 marlas-66 sq. Ft. Situated in Khewat No,62, Khatooni No,190, Khasra No,20, Mauza Nawankot, Lahore (called Irfan Colony Sanda Bhatiyan, Lahore) purchased by him through registered sale-deed duly executed in his favour on 7-6-1973. Soon after the purchase, the petitioner erected construction on the said land. In the year 1975, the respondents announced "Band Road Scheme (now Gulshan-e-Ravi Scheme)". Since constructions at the site were already in existence, the residents of the colonies approached the LDA for adjustment of said colonies in the scheme. Certain colonies including Irfan Colony, Arain Colony Sanda Bhatiyan were declared as adjusted areas and owners of the houses and plots in the said colonies were required to pay development charges only. The petitioner also deposited development charges with the respondents as per their demand and since then, none on behalf of the respondents have ever interfered with the possession of the petitioner. In the year 2002, it came to the notice of the petitioner that someone on the basis of a fake power of attorney was trying to get the property under reference. The petitioner immediately approached the quarters concerned whereupon an order dated 9-4-2002 was passed by respondent No,2 holding that khasra number 20, wherein the property of the petitioner is situated, falls in adjusted area of E-Block of the scheme and also that the petitioner is owner in possession of the property. The petitioner then approached this Court through Writ Petition No,11272 of 2002 which was disposed of vide order dated 27-6-2002 with the direction to approach the competent forum. The petitioner preferred an Intra-Court Appeal 540 of 2002 wherein this Court vide order dated 3-7-2002 directed the respondents to implement the order dated 9-4-2002. When the respondents failed to comply with the order dated 3-7-2002, the petitioner moved a Contempt Petition No,803-W/2004. The respondents appeared before this Court and made a false statement that the order had already been acted upon, therefore, the petitioner moved another Contempt Petition No,1129-W/2004 which was disposed of vide order dated 16-1-2006 with the direction to the petitioner to provide documents to respondent No,2 required by him who will decide the matter within 15 days. The petitioner produced the documents before the respondents in person and through registered post as well. The matter was ultimately decided by the respondents vide letter dated 28-1-2009 holding that the petitioner had no locus standi as the possession of the land was taken over by the respondents on 21-12-1976 whereafter the possession of the same was taken over by the petitioner illegally and unlawfully. Hence this writ petition.
3. Learned counsel for the petitioner inter alia contends that Khasra No,26/ wherein the property of the petitioner situates comes within the limits of adjusted area of Gulshan-e-Ravi Scheme as recognized in letter dated 9-4-2002 issued by respondent No,2, therefore, the respondents cannot be allowed to back out from what they have earlier settled and admitted; that in Writ Petition No,1186 of 1978 filed by residents of Gulshan-e-Ravi Scheme including mother of the petitioner for adjustment of their plots whereupon the plots and houses of the petitioners were adjusted except that of the petitioner; that the possession of the petitioner over the property is admitted by the respondents but they have illegally refused to adjust the property of the petitioner which is against letter dated 9-4-2002 issued by themselves; that a number of other properties of the same area have been adjusted by the respondents but the petitioner is being treated discriminately which is against the fundamental rights protected by the Constitution, therefore, this writ petition be allowed and the respondents be directed to adjust Plots No,391 and 392-E of the petitioner situated in Khasra No,20 of Mauza Nawankot, Lahore.
4. On the other hand, learned counsel for the respondents (LDA) has vehemently opposed this writ petition and controverted the averments made by learned counsel for the petitioner. He contends that the case of the petitioner is of adjustment and not that of exemption. He argues that the possession of the property was handed over to the respondents on 21-12-1976 whereafter the petitioner illegally occupied the property, therefore, neither his possession can be protected nor his property can be adjusted under the prevailing policy of the LDA. He further argues that the petitioner has no locus standi over the property. He avers that this writ petition has no merit, therefore, it merits dismissal.
5. I have heard the arguments put forth by learned counsel for the parties and also perused the record with their able assistance.
6. There is no denial to the fact that one Muhammad Ameen filed a Writ Petition No, 19567 of 2001 against the respondents claiming himself to be the general attorney of the present petitioner and sought the issuance of NOC regarding Plot No, 268 Block-F Gulshan-e-Ravi Scheme, Lahore. The said writ petition was disposed of vide order dated 31-10-2001 with a direction to the respondents to pass an appropriate order in accordance with law after hearing the parties. Respondent No,2 in compliance of the said order proceeded to hear the respective parties and the mother of the present petitioner appeared before respondent No,2, who categorically denied the existence of any such power of attorney in favour of the said Muhammad Ameen. It was stated before respondent No,2 that no exemption was claimed by the petitioner. Respondent No,2 vide order dated 9-4-2002 concluded in the following terms:-- "The matter has been thrashed minutely with the help of Legal Wing and Town Planning Wing. The land measuring lk-2m bearing Khasra No,20min Mouza Nawan Kot was acquired for Gulshan- eRavi, Scheme. The said Khasra No falls in the adjusted area of E-Block of the scheme. The application of the landowner for adjustment is still pending and it is in his/her occupation."
' This order dated 9-4-2002 was not complied with in letter and spirit and the petitioner filed a Writ Petition No, 11272 of 2002 which was disposed of by a learned Single Bench of this Court vide order dated 27-6-2002 which was assailed in I.C.A. No,540 of 2002 which was also disposed of vide order dated 3-7-2002 passed by a learned Division Bench of this Court which reads as under:-- "We have examined the file of W.P. In the light of the said submission of the learned counsel and we do find that the order dated 9-4-2002 was passed by the respondent-LDA in favour of the petitioner. Having thus examined the file we dispose of this ICA with a direction to respondents Nos. 1 and 2 to immediately to take steps to further implement the decision taken on 9-4-2002 by respondent No,2 and to report compliance to the Deputy Registrar (Judicial) of this Court within four weeks".
7. The above-referred order was not complied with and a Criminal Original No,803-W of 2004 was filed by the petitioner. The respondents appeared before the learned Division Bench of this Court and the learned counsel for the respondents submitted that the order dated 9-4-2002 of this Court passed in ICA No, 540 of 2002 has been implemented. (As a matter of fact there was no order dated 9-4-2002 passed by this Court). However, this contempt petition was disposed of having borne fruit. Subsequently, the petitioner again filed a Criminal Original No, 1129-W of 2004 in ICA No, 540 of 2002. The then Director Land Development-II, Lahore namely Khawaja Javed Aslam Sahaf appeared before the Court and the Criminal Original was disposed of vide order dated 16-1-2006 in the following terms:- "Mr. Qamar Zaman Qureshi, Advocate for the petitioner.
' Mr. Abdul Ghani, Advocate for the LDA, with Kh. Javed Aslam Sahaf, Director, Land Development-H.
' The petitioner claims to be owner of 1-kanal 2-marlas of land in Khasra No,20-min. Mouza Nawan Kot. The said land was acquired for Gulshan Ravi Scheme. The petitioner claims the adjustment of the same in the scheme.
2. Learned counsel for the LDA states that there are certain requirements for adjustment. The petitioner has not provided the relevant documents.
3. In view of the above, learned counsel for the petitioner undertakes to provide the required documents on 26-1-2006. The petitioner shall appear before the Director Land Development-II on the said date alongwith the relevant documents. The application of the petitioner for adjustment of the plot shall be decided within fifteen days. With this direction, this petition is disposed of."
8. Subsequent to the order dated 16-1-2006 passed by this Court, the petitioner allegedly persuade the case before the respondents but instead of adjustment of his plot a letter dated 28-1-2009 was written by respondent No,2 to the Director, Estate Management, LDA Lahore which reads as under:-- "In compliance with the orders of the Division Bench consisting of Hon'ble Justice Muhammad Saeed Akhtar, Judge and Justice Azmat Saeed, Judge of Lahore High Court, a Speaking Order was passed vide No,LDA/DLD-II/7702 dated 1-9-2006 (copy enclosed), conluding therein that the petitioner does not prove his claim for adjustment. His claim for the exemption of one 10-marlas plot will only be dealt with in the light of prevalent law/policy. The petitioner has no locus standi on the plots subject as cited above which have partially/completely been occupied unauthorizedly, because LDA has evidently taken over physical possession of the land on 21-12-1976.
' In view thereof, you are required to please take over the physical possession of the said plots illegally occupied by Mr. Zia Bashir in the interest of the Authority under intimation to this office".
' The said order of 1-9-2006 has not been produced by the respondents while filing the written reply.. However, as per comments, the claim of the petitioner for adjustment was rejected by respondent No,2 by holding that the case of the petitioner for adjustment is not tenable and he could only claim the exemption of 10 marlas plot in the light of prevalent law and policy for the reason that the petitioner has failed to produce the proof of construction of house/living unit consisting of drawing room, dining room, bedroom, bath and kitchen prior to the acquisition preceding along with other documents which are the pre requisite to proceed the case for adjustment of land. The alleged order dated 1-9-2006 is wholly dependent upon the order dated 1- 9-2004 passed by Major (Retd.) the then Director. Land Estate Management LDA, Lahore.
9. There is no denial to the fact that the petitioner is lawful owner of land measuring 1 kanal, 2 marlas 66-Sq. Ft. Vide, registered Sale-deed No, 11407 dated 7-6-1973 and the possession of the property in dispute is also not denied by the respondents. However, it is claimed by the respondents that the petitioner was not in possession of the said property prior to the requisite proceedings and taken over physical possession of the said land on 21-12-1976 by the LDA. I am of the opinion that mere assertion of the respondents that there was no construction at the time of acquisition of the land of the petitioner is of no help to them. It is noted with great concern that the petitioner got proprietary rights of the property in the year, 1973 through a registered sale-deed and subsequently scheme was announced by the respondents but the legal rights were not given to the petitioner and till the year 2009 no active step was taken against the petitioner if, according to the respondents, the petitioner was illegal occupant of the property. In view of their own stance taken during the earlier proceedings in the cases i,e, I.C.A. No, 540 of 2002, Crl. Org. No,803-W of 2002 and Crl. Org. No,1129-W of 2004, I am of the considered opinion that the letter dated 28-1-2009 written by respondent No,2 to the Director Estate Management LDA, Lahore is tainted with mala fide and a result of misuse of authority in order to undo the orders passed by this Court in the earlier round of litigation. As remains the objection taken by the respondents that the case of the petitioner for adjustment is not entertainable as he was not in possession of any constructed property and as such his case only can be considered to the extent of exemption of one plot measuring 10 marlas is also of no avail in view of the order dated 3-7-2002 passed by this court in I.C.A. No, 540 and stance taken by the respondents in Criminal Original No, 1192 of 2004 and furthermore if it was a case of exemption then the respondents should have processed the case for that purpose. Even otherwise it is established that the respondents have already exempted more than one plot to the owners as earlier held by this Court vide order dated 1-3-1992 passed in Writ Petition No, 162 of 1984. The relevant paragraph of the said order is reproduced as under:-- "The petitioner categorically mentioned in paragraph 9 of the petition that she was entitled to exemption of area measuring 1 K 2 M and 70 Sqf and this position was admitted by the Lahore Development Authority. This clear admission on the part of the L.D.A. Precludes it to take a contrary - stand particularly when .LDA had been allowing exemption for more than one plot to the owners".
' Resultantly, this petition is allowed, declaring that the letter dated 28-1-2009 passed by respondent No,2 is void ab initio having no legal effect against the rights of the petitioner and the respondents are directed to process the case of the petitioner for adjustment of his Plots bearing Nos.391-E and 392-E situated at Khasra No, 20 Mouza Nawan Kot, Lahore.