This order shall dispose of W.P. No. 232398-2019 titled "Munir Ahmad vs. LDA etc.", W.P.No. 226087-2018 titled "Mian Muhammad Yasin vs. LDA etc." as well as Crl. Org.No. 204750-2018 titled "Munir Ahmad vs. Khurram Mukhtar etc." and they all invoke a common question of law and facts.
2. Briefly , the facts giving rise to the filing of the constitutional petition are that the petitioners were the owner of land measuring 36 kanal 10 marlas bearing Khasra No. 1157/291, 1158/294, 1159/294. 1160/296 Mauza Ajhodia Pur Tehsil Cantt, District Lahore on the basis of registered sale deed dated 12.04.1980. However , he could not get the mutation sanctioned in his favour . The original vendor , taking its advantage had sold this land to someone else through a registered sale deed dated 30.07.1980. He filed an application for the review of the said mutation which was allowed and it was reviewed on 23.09.2009. This order was challenged by the adversary before the Executive District Officer (Revenue), Lahore which was dismissed on 01.06.2010, upheld by the learned Member Board of Revenue while dismissing the revision petition on 14.10.2012.
3. Meanwhile, the District Collector , Lahore sanctioned the mutation Nos. 8565 & 8571 in favour of the petitioner on 30.09.2009, and on the basis of which, the petitioner applied before the Executive District Officer (Revenue), Lahore to amend the award which request was allowed on 10.10.2009 by adding the name of the petitioner .
Consequently , LDA allocated two plots Bearing Nos. 170 and 171 Block-K, measuring 17 marlas each and also issued the allocation letters on 01.12.201 1 and in pursuance thereto, also delivered the possession to the petitioner on 23.12.201 1.
4. On the other hand, the aggrieved party had filed a civil suit against the petitioner and others, in which a compromise was effected between the parties, according to which the petitioner was ready to surrender the land measuring 19 kanal 1 marla in their favou r, as he is entitled to another exempted plot measuring 15 marlas. He had also deposited Rs: 10,98,504/- against the demand notice dated 11.11.201 1 on account of the development charges. For the released of his grievance, he filed. W.P. No. 13453-2012 which was disposed of on 06.05.2015 as follows: "In view of the consensus arrived at between the parties instant petition is disposed of with ,a direction to the Director Exemption LDA (Respondent No. 4) to proceed with the matter regarding exemption of plots against the remaining land of the petitioner measurin g 14K-8M acquired by the LDA from Mauza Ajhodia Pur after decision of the suits filed by the junior vendees whose mutations have already been cancelled by the revenue authorities. In case grievance of the petitioner is not redressed, he would be at liberty to approach this Court afresh."
5. To the surprise of the petitioner , the petitioner had received a show-cause notice on 25.05.2015 stating that in view of the judgment and decree dated 07.02.2012 the sale deed of the petitioner has been declared illegal being fake and fabricated document. The petiti oner, therefore, filed W.P.No. 1926/2015 and Crl.Org.No. 1568- W-2015 which were disposed of on 30.12.2015 to the following ef fect: "Mr. Khurram Mukhtar , Land Acquisition Collector , LDA Present in the Court, states that he withdraws the show- cause notice dated 25.05.2015 issued in the name of the petitioner . Further submits that the application filed by the petitioner pending with the authority shall be decided on its own merits strictly in accordance with law .
2. In view of above, this writ petition is disposed of with the direction, that the application filed by the petitioner shall be adjudicated strictly in accordance with law on its own merits."
6. Later , Crl. Org. No. 2-W-2017 was also filed which was disposed of on 26.01. 2017 with a direction to LDA to decide the application within two months: "In this view of the matter , this criminal original is dismissed as withdrawn. However , the concerned respondent is directed to decide the application of the petitioner within a period of two months positively and without any failure strictly in accordance with law from the date of receipt of order of this Court. "
7. Yet another Crl, Org. No. 72466-2017 was filed by the petitioner but of no avail.
8. The case of the petitioner in W.P. No. 232398-2018 is that a meeting was convened and its minutes dated 28.03.2018 must be set-aside and in other petition bearing W.P. No. 226087 of 2018 the consequential actions have been challenged.
9. In the report and parawise comments submitted by the LDA, the facts narrated by the petitioners were although admitted, yet it was contended that petitioner cannot be granted the exemption of 15 marlas, since "genuine" vendees were granted exemptions after due diligence since their ownership was found intact in the revenue record.
Besides, the civil suit filed by one Pervai z Iqbal had been decreed on 07.02.2012 declaring the sale deed of the petitioner as void ab-initio and, consequently , the mutations in his favour were also cancelled. Although, the sale deed was partially cancelled in violation of Section 40 of the Specific Relief Act, 1877, since different rights and obligations under the instrument are distinct or separate. Yet it was categorically stated that partial cancellation if registered sale deed cannot be implemen ted. According to the LDA, the said judgment of the civil Court; was not challenged by the petitioner , though the Director Land Development-I, LDA has also moved a reference to LAC for the cancellation of award. The decision of the committee is reproduced as under: "DECISION: The case of the petitioner/applicant is based on malafide, fraud, forgery , concealm ent of facts. Upon perusal of the entire circumstances it transpires that fraud is floating on the record. The petitioner 'applicant has approached/with unclean hands and is not entitled to any relief. The subject matter of the case has already been taken up in 1980 the form of a civil suit filed by the prese nt petitioner and the same was dismissed. Subsequently , the same has never been restored nor restoration has been revealed by the present petitioner before any Court of law. It is a cardinal principle of law that fraud vitiates all proceedings. The present petitioner failed to justify his ownership before the civil Court in 1981 and also in his civil revision before honourable Lahore High Court, Lahore. The present petitioner failed to prove his case for grant of exemption thus is not entitled to any relief"
10. In the parawise comments, by the Commissioner , Lahore it has been admitted that Reference No. DLD-1/86 dated 05.05.2018 regarding cancellation of award dated 12.10.2009 is pending before him but the petitioner was not attending it.
11. Arguments heard. File perused.
12. After hearing the learned counsel for the parties and perusing the file, it is straightaway observed that as on toddy , the sale deed in favour of the petitioner has been partially cancelled, the mutation has been revised the judgment of the civil suit in respect of the cancellation of the sale deed has not been challenged by the petitioner , the background of the litigation between the petitioner and others was not brought to the notice of this Court and even they were not impleaded as party against which relief is being claimed, therefore, certain raised questions of fact cannot be decided before this Court.
13. Learned counsel for the LDA has taken a stand that the matter can be referred to the Bonafide Commission of LDA where all the points raised before this Court can be resolved.
14. Under La ore Development Authority Commission Rules, 2014, made under Section 32 of the LDA (Amendment) Act, 2013 (XXXVI of 2013) a co mission has been constituted to deal with the bonafide purchasers, iIlegal construction and illegal housing schemes. This Commission is comprised of Technical experts for all the above referred three categories. The Commission is empowered under Rule 5 to regulate its own procedure to ensure due process of law, therefore, not required to follow the provisions of Qanun-e-Shahadat Order , 1984 and Code of Civil Procedure, 1908 (hereinafter to be called CPC). In the discharge of its duties, the Commission will have the same powers under CPC for summoning and enforcement of the attendance of a person for examining on oath, recovery and production of docum ents, receiving evidence on affidavits, issuance of commissions for the examination of witnesses or documents, dismissing an application for default or directing to proceed ex-parte, and execution of its recommendations. All proceedings of the Commission are considered as judicial proceedings conducted within the meaning of Sections 193, 219 and 228 for the purpose of Section 196 of the Pakistan Penal Code, 1860.
15. Under Rule 5 (Proceedings) the Commission may initiate the proceedings, if so requested, by or on behalf of an authority , or upon application of any person claims to be a bonafide purchaser , if his allotment/transfer of interest has been cancelled or called in question by the Authority , or who is owner in possession of an illegal construction, or is a developer or is a resident of an illegal housing scheme, for the purposes of consideration and recommendation.
16. The application before the Commission shall contain a precis of material facts, with full particulars of any illegal act committed by persons, with reference to date and place or practice, specifying the mode and the manner for regularization, with an effort to pay the amount for this purpose. Apart from the payment of Rs. 5000/- as processing fee, at the time of filing the application but during the proceedings, the Commission may require the applicant to deposit same as security . The Commission shall proceed with hearing of the case preferably on day-to- day basis and decide the matter within four (4) months and can also hear the applications at the places as ordered by the Government. The parties are permitted to be represented through attorne y so authorized. The Chairman may assign the application to the full Court or to a bench. The quorum for proceedings shall be Chairman and a member , or two members without the Chairman.
17. Under Rule 8, The Commission can recommend by majority for retrieval of property in the name of authority , transfer in the name of the applicant subje ct to the payment to the authority , fixing the separate responsibility of the parties to share the loss. In the matter of illegal Housing Schemes, it can recomm end for demolishing of structure and roads, approval of housing society with or without amended plan or payment of fine, fee or penalty as determined by the Commission. In the cases of illegal construction it can also recommend demolition by applicant or Authority , recovery of dues. Fines, rectifications of the illegal construction and apportionment of the cost by each party , partially demolish the construction and recover the cost thereof, determine the rights of the parties in that eventuality , and recommend for the approval of construction plan subject to the payment of fine, fee and penalties to the Authority .
18. Since the matter in hand squarely comes within the purview of LDA Commission, therefore, these writ petitions are disposed of directing the respondent to place the case of the petitioners in the bonafide commission constituted under the Lahore Development Authority Commission Rules, 2014 for the decision in the matter in accordance with law.