The petitioners have prayed, through this petition, that the action of the Faisalabad Development Authority of selling of the plots/shops and disposing of the land included in the scheme of 'karyana market', in Kbasar Nos. 1581 to 1587, measuring 15 kanals, 2 marlas, Tehsil and District Faisalabad, be declared to be without lawful authority and of no legal effect and it be directed to execute the sanctioned scheme, as such abstaining from changing the purpose, design, drawings or name of the same.
2. The petitioners are wholesale 'karyana merchants' and are carrying on their business in Goal Karyana Bazar, Faisalabad. The whole--sale grain market is said to be situate adjacent. On account of abnormal increase in the population, both the markets, statedly, got congested and consequently, the Government, on the representation of the petitioners, decided to shift the two markets in some open area outside. Two separate scheme for the two markets were, therefore, devised.
3. The Deputy Commissioner then requested the Provincial Town Planner, vide his letter No. 3102- N/LPC, dated 1st December, 1956 to prepare a plan for the 'Karyana Market' to be established at Dichkot Road, Faisalabad, on the land occupied by the Municipal Committee. The learned counsel also relied on another letter No. 210-C-CH, dated 10th February, 1962 from the Deputy Commissioner to the Commissioner, Multan Division to the effect that the 'karyana market' was liable to be shifted along with the grain market to the site referred to above.
4. On 25th of November, 1958, the then Lyallpur Improvement Trust, decided to frame a development scheme for 'Karyana Market' on an area known as 'Sahzi Mandi' comprising Khasra Nos. 1581 to 1587 measuring 15 kanals 2 marlas. It is supported by Memorandum No. 789/S-43-LIT- 58, dated 25th November, 1958 from the Secretary, Lyallpur Improvement Trust, to the Deputy Commissioner. A scheme was in fact framed under sections 24 and 28 of the Town Improvement Act, 1922. Objections were also invited under section 36 and the sanction is said to have been accorded by the Government, vide Notification SOV(IG)-7-86-64, dated 7th of December, 1964, under section 41(1) of the Town Improvement Act, 1922.
5. The learned counsel also referred to the other correspondence between various functionaries to show their intention to establish a 'Karyana Market' on the land referred to above. The sanction of the Government to the sale of the above-said land by private treaty, for setting up a new 'Karyana Market', was also referred to from the Memo No. 913-64/1066-SG-II, dated 7th of March, 1964.
6. On 16th December, 1976 the Punjab Development of Cities Act was promulgated. Under this Act the Faisalabad Development Authority (herein--after called the Authority) succeeded the Lyallpur Improvement Trust. It developed the site and started selling the plots of the new 'Karyana Market' by open auction without any restriction as to its use by the persons bidding. The representatives of the petitioners in vain, approached the Director-- General of the Authority and stated that the purpose or use of the plots for a purpose other than 'Karyana Market' was not authorised.
7. They made representations to the Board of Revenue also. A Writ Petition No. 1638-81 was also filed but later withdrawn for, the reason that they got a stay order from the Board of Revenue. However, as the Authority persisted in its object to dispose of the plots without any restriction, the petitioners again approached this Court through the present petition.
8. It is contended by the learned counsel that the scheme sanctioned under section 41 of the Town Improvement Act and taken over by the Faisalabad Development Authority under sections 46 and 47 of the Develop--ment of Cities Act, 1976 (hereinafter called the Act) had to be executed as such.
The plea raised is that the respondent No. 2 could neither change its purpose nor the design etc. So as to arrogate to itself the authority to sell these plots by unrestricted public auction, particularly, when the Government had sold the land in dispute only for the establishment of a 'Karyana Market'.
Reliance was placed on Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property,' West Pakistan, Lahore and 4 others (1), Ajaib Hussain and another v: Muhammad Fazil and 5 others (2), but they have no relevance to this case. The case of Mlan Fazal Din v. Lahore Improvement Trust, Lahore and another (3) also does not apply as, in view of the discussion hereinafter, there has been no alteration in the scheme:.
8-A. It is admitted that the scheme had been duly sanctioned by the Government under section 41 of the Punjab Town Improvement Act. It was taken over as such by the Faisalabad Development Authority and had to be executed under section 47(1) of the Act, which provides that all project of works started under this Act and not completed by the authority executed under the provisions of the Act. Section 47(2)(1) further lays down that all schemes prepared under the Town Improvement Act shall, so far as they are consistent with the provisions of the Act, continue in force and be deemed to have been prepared and initiated under the Act.
9. Section 14 of the Act on the other hand provides that any scheme prepared under the Act may, at any time, be amended and modified in such form and in such manner as may be prescribed.
Admittedly, no rules have been framed under this section.
10. The plea taken by the learned counsel for the petitioner was that as 'no rules have been framed, no amendment could be made in any scheme. This, on the face of it, is absurd as it may amount to leaving the law at the mercy of the rule-making authority. Reference be made to M. U. A. Khan v.
Rana M. Sultan and another (4), where it was held that failure or omission of the designated authority to frame rules cannot be construed as having the effect of rendering the statute nugatory or unworkable. The correct approach in all such eventualities is that unless the law itself lays down that no action be taken without framing rules, any rules pari materia may be followed or action be taken in a reasonable, just and fair way.
11. Unlike the Punjab Town Improvement Act, there is no provision in the Act for inviting objections on the preparation of the schemes. The authority is empowered under section 13 of the Act to prepare schemes for the area and any part thereof and submit the same to the Government for its approval straightaway. However, before going to the question of any modification in the scheme, one would like to know :-
(i) Whether there was any restriction placed on the originally sanctioned scheme about the use of the plots and if so,
(ii) Whether the same could be and has in fact been amended.
12. As referred to above, the scheme was sanctioned, on 7th of December, 1964 by the Government.
The opening part of it reads asunder :- "In exercise of the powers conferred by subsection (1) of section 41 of the Town Improvement Act, 1922, the Government of West Pakistan is pleased to sanction the development scheme known as 'Karyana Market' Lyallpur, framed under section 24 read with section 28 of the said Act for an area measuring 15 kanals 2 marlas approximately, situate in Khasra Nos. 1581 to 1587, bounded as . . ."
(1) PLD 1971 SC 811(2) 1980 CLC 198 `
(3) PLD 1969 SC 233(4) PLD 1974 SC 228
13. In para. 2 of it the Lyallpur Improvement Trust was authorised to acquire the land either under the Land Acquisition Act, 1894 as modified by Town Improvement Act, 1922 or by purchase, lease, exchange or otherwise the whole or any part of the area comprised in the scheme and to perform the following functions ; namely :- (i)--------------------- .
(ii) the retention, letting on hire, lease, sale, exchange, or disposal otherwise of the land vested in or acquired by the trust and the buildings constructed on it ; (underlining* supplied).
(iii) ---------------------------------.
(v) the erection of buildings by the trust or by the persons who purchase any of the land comprised in the scheme.
14. The `object of the scheme' are; (i)---------------.
(ii)---------------.
(iii) the lay out of the area shall be in accordance with the drawing No. ---------The building apportions in this area shall be controlled by the Schedule and clauses given in Appendix `A' appended hereto.
Para. 2(ix) defines `shop-cum-resident'. It means a building, other than a petrol-filling station, designed for the purpose of carrying on retail trade and includes shops and residence with living accommodation attached. Appendix `A' on the other hand shows in its heading the area known as new 'Karyana Market' Lyallpur. Para. 5 provides that no building other than shop-cum-residence shall be permitted and its use for any other purpose is hereby prohibited. Para. 7 of the scheme provides that "no land in the area shall be used for any other purpose (even though not involving the erection of building inconsistent with this scheme). . . ". Para. 9 lays down that the Government may relax any of the provisions of this scheme on technical grounds.
15. It will thus be clear that the use to which the plots in tae scheme can be put is specifically given in the scheme duly sanctioned. The shops were meant for retail trade without any restriction on categories of it. Thus the entire case of the petitioners that this market was established, for shifting the wholesale 'Karyana Market' at it, stands totally demolished. Para. 7 of the scheme as said above, prohibits use of the plots for a purpose other than retail trade.
16. Consequently, the mere naming of it as 'Karyana Market' would not mean that the plots could be sold only to Kiryana merchants. Para. 2(ii) of the scheme rather obliged the respondent No. 2 to retain, let on hire, lease, sale, exchange or disposal otherwise without any restriction except the retail trade-cum-residence. 1 n any case, the Government also reserved the power to relax any of the conditions. In this view of the matter, it cannot tie said that the scheme in question has either been altered or is being executed in violation of the orders sanctioning the same.
17. As for the objection of the learned counsel that the Government had sold the land for a particular purpose and it could not be used for a different object, I do not think it has any merit either. As said above, the Government being also the sanctioning authority in respect of the scheme, it could modify or relax any restriction if it had so desired. The respondents have also now placed on record a letter issued by the Government showing that the site could be used for a general market. The name is also changed from Karyana Market to Faisal Market.
17. The learned counsel fur the respondent had raised an objection to the locus standi of the petitioners. It is stated that they have no direct or indirect interest and stand neither to gain nor lose legally. I however, do nor think that the objection is sustainable, in view of the observations of the Supreme Court in Fazal Din's case PLD1969SC223The petitioners would certainly have the locus stands in case the scheme had been made for shifting the whole 'Karyana Market' from the old site to the new one.
In view of the above, there is no merit in this petition and the same is dismissed with costs.