SHAHID KARIM, J. This is an Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 and brings a challenge to the order passed by a learned Single Judge of this Court dated 17.01.2022 in W.P. No. 49933 of 2020. This order will also decide connected appeal I.C.A. No. 8985 of 2022 which arises from the same order.
2. In conclusion, the learned Single Judge held that: "4. When confronted with the above, learned Legal Advisor for respondent-LDA could not rebut this fact, however, he submits that respondent-LDA is entitled to the market price of the excess land, which was determined by the Price Assessment Committee, LDA on 08.12.2017 @ of Rs.50,00,000/- per Marla. Learned counsel for petitioner, after arguing the case at some length, has agreed to pay the amount demanded by the respondent-LDA through the impugned order.
5. In view of the above, instant petition along with connected petition is allowed in the above terms. However, petitioner shall pay the amount at the rate of market price to the extent of 17- Marlas 29-Sq. Ft."
3. Learned counsel for the appellants contended that the learned Single Judge has reproduced the portion of the impugned order which does not encapsulate the conclusion drawn by the Director General, Lahore Development Authority, Lahore (LDA) who passed the impugned order dated 4.7.2020. That order was passed on a direction issued by this Court while dealing with a previous constitutional petition filed by the respondents herein, that is, D.G. Khan Cement Company Ltd.
("D.G. Khan Cement") and Messrs Tivoli Enterprises (Pvt.) Ltd. ("Tivoli"). Therefore, in the submission of learned counsel for LDA the learned Single Judge committed an error while relying upon that portion and thereby passing the impugned order. From the order under challenge however it seems that the learned Single Judge noted that the counsel for LDA could not rebut the facts mentioned in the order set out in italics in the impugned order and so directed D.G Khan Cement to pay the amount which was demanded by LDA and determined by the Price Assessment Committee, LDA at the rate of Rs. 50,00,000/. per Marla. In essence, LDA is aggrieved of the payment of the amount in respect of 17 Marlas, 29 Sq. Pt. whereas according to LDA the amount determined to be paid was in respect of 3 Kanal, 5 Marlas, 97 Sq. Ft. The case of LDA is that market price for the excess area (1/3 of the ownership) which was to be contributed by the original owner, that is, Sahib Sultan Begum, has not been deposited so far and so D.G Khan Cement was liable to make the payment to LDA. The issue arose when on January, 2016 D.G Khan Cement filed an application to Directorate LDA, Lahore to incorporate the name of D.G Khan Cement as owner in the relevant record and to issue placement letter in favour of D.G. Khan Cement. The property subject matter of these appeals is bearing No 263 measuring 9 Kanal-16 Marlas-220 Sq. Ft. situated at Upper Mall Scheme, Lahore ("The Property"). Thereafter, the events started to unfold which gave rise to a cause of action to D.G Khan Cement to apply to this Court on which certain direction was issued for decision by D.G LDA on the case of D.G Khan Cement. Suffice to say that LDA did not accede to the request of D.G Khan Cement made through the letter of 04.01.2016. As stated above, a chain of events ensued following the request made by D.G Khan Cement. Prior to the impugned order passed by D.G LDA, the Authority of LDA had considered the case of D.G Khan Cement and in its meeting held on 9.12.2017 had accorded ex-post facto approval for regularization of the plot subject to recovery of excess area at the rate of Rs.50 lac per Marla as determined by Price Assessm ent Committee, LDA. The cumulative cost which D.G Khan Cement was required to pay was Rs.412,072,701/-. Contrarily the case of D.G Khan Cement is that the transaction was past and closed and could not be reopened at the whim of LDA. This demand was raised by LDA in its letter dated 6.2.2018 addressed to D.G Khan Cement. Interestingly, the entire basis for making the impugned demand on D.G Khan Cement rests on purported irregularities committed by the officer of LDA itself. In the recommendations made by the Authority in its meeting held on 09.02.2017 it was recommended that the agreement executed with Tivoli (the predecessor of D.G Khan Cement) be reviewed/cancelled and that the possession of the entire land be taken in favour of the Authority.
The facts forming the background or the dispute between the parties were admitted in the decision of the Authority which culminated in the execution of the agreement between the parties on 24.08.2006.
4. We have heard learned counsel for the parties and do not find the impugned order to suffer from any illegality to set it aside on any of the grounds argued by the counsel for LDA. The impugned order is conspicuous by its brevity and the reasons may be supplied by us while deciding these appeals.
5. As adumbrated, the primary document to which the dispute can be traced is the agreement executed between Lahore Improvement Trust (LIT) (predecessor of LDA) and Tivoli. This is dated 24.08.2006 ("the agreement"). It seems that the parties were cognizant of the issue relating to excess area and therefore clause 4 assumes a pivotal significance in the entire set of events.
Clause 4 provides that: "4. The Second Party further agrees to surrender Interest in his share of land measuring 3-5-97 equal to 1/3rd approximated of the holding to the First Party as proportionate contribution for roads and open spaces and he/she/they shall be paid compensation at the assessed rate of Land Acquisition Collector, Local Area. The Lahore Improvement Trust, if not already paid."
6. The clause set out above relates to land measuring 3 Kanal-5 Marlas-97 Sq. Ft. which is precisely the land which is in dispute presently in these appeals and in respect of which an excessive demand has been raised by LDA to be paid by D.G Khan Cement. It provides that Tivoli was to surrender interest to the extent of 1/3 of the entire holding in favour of LIT as proportionate contribution for roads and open spaces. Alternatively it shall pay compensation at the assessed rate of Land Acquisition Collector to LIT (the LDA). Pursuant to execution of the agreement LDA issued an invoice for the payment of certain amounts and the total demand raised was Rs.1,463,970/- which was duly paid and is an undisputed fact. This document which too is admitted on all hands is a challan issued by the Accounts Clerk. LDA and it has been approved by the relevant officers. At Sr. No.4 it mentions the excess area which is 14.40 Sq. Ft. out of which 66.66 per cent was the area to be retained by Tivoli and for which the amount to be paid by Tivoli was mentioned against that serial number. Underneath that in respect of 1/3 of the excess area, that is, 33.39% a separate demand was raised which too has been mentioned against it in the said document. The third payment is regarding the excess area and therefore the cumulative payment was Rs.1,463,970/- and which as mentioned above was deposited by Tivoli. Later on Tivoli applied for commercialization of the plot and duly paid the commercialization fee on 12.2.2007.
Commercialization approval was given by LDA and the plan was also approved. Subsequently, D.G Khan Cement negotiated the purchase of property from Tivoli and as a necessary precaution issued publications in the newspapers with regard to purchase of property. Thereafter it applied for NOC and for placement of the name of D.G Khan Cement in the record of. LDA upon which the impugned demand was raised.
7. Learned counsel for LDA contends that D.G Khan Cement as the successor of the original owner is obliged to make the payment of 1/3rd of the total holding which the original owner had failed to pay at the relevant time. 'Reliance has been placed in the impugned order as well as the arguments of learned counsel for LDA as upon some opinion of the legal advisor. However, the fact of the matter is that the entire negotiation took place between LIT and Tivoli prior to execution of the agreement between the parties. The terms of the agreement would govern the relationship of the parties and binding obligations came into effect. They could not be rescinded or terminated at the whims of LDA eleven years after the execution of the agreement. It is admitted by counsel for LDA that during this period between 2006 and 2017 when the Authority passed the impugned order no demand has ever been raised against either Tivoli or D.G Khan Cement and LDA was woken from its slumber only when D.G Khan Cement applied for incorporation of its name in the LDA's record. To reiterate the relationship of the parties was governed by the agreement and the Adjustment Letter and the Authority of LDA had no power or jurisdiction to rescind or cancel that agreement to the detriment of either Tivoli or D.G Khan Cement. This was a case of past and closed transaction which could not be reopened at the whims and discretion-of LDA.
8. LDA invites us to upend the agreement and subsequent steps on the. misplaced notion that Director Land Development-Ill, LDA in 2006, acted illegally in issuing the adjustment letter in favour of Tivoli. This is a fallacy and misdirection of facts. To rely upon events which took place between 2002 and 2006 masks the source of the primary transaction which took place on 23.10.1965 vide Trust Resolution No. 5/3, Mst. Sahib Sultan Begum was required to pay the government dues (development charges and cost of excess land). In the decision of the Authority of 9.12.2017 it has merely been alleged that she "did not complete such codal formalities." During that time she gifted the property to her son (in 1973) who, in turn, sold 03K to certain persons on 24.6.1987 and to Tivoli (on 8.11.2002). Later on the agreement with Tivoli was formalised on 29.8.2006. It is also admitted in Authority's decision that Tivoli paid charge towards excess area (1/3rd of total ownership). It is further admitted in the decision that "since original file No. US/21 was not traceable in the record, therefore, duplicate file was constituted on 24.1.2004". The ineluctable inference is that LDA has no means of knowing whether the entire charges had not been paid by the original exemptee. They were in any case paid by Tivoli in 2006, Another outstanding feature of the Authority's decision is that it fails to rely upon any policy decision let alone a statutory provision to have been contravened to justify and base its decision. From 1965 onwards, LDA continued to approve and sanctify various transactions in respect of the property without raising a finger. The act of LDA in reviewing its past decisions in 2017 is egregious and an attempt to enrich itself unjustly.
9. Learned counsel for LDA has relied upon precedents which held that in view of the principle of locus poenitentiae, no one can retain the benefits of a withdrawn order claiming the protection of having taken a decisive step. Suffice to say that the case law relied upon by LDA is not relevant for the decision of this matter since we have not been able to understand with any degree of certainty that the original acts of LIT were ultra vires or were procured by fraud or misrepresentation. In none of the documents which have been relied upon by LDA have we been able to draw the inference that either Tivoli or D.G Khan Cement practiced fraud upon LIT or LDA to procure the agreement and thus the transaction must be held to be void. It is also not the case of LDA that the original transaction be set aside being unlawful or ultra vires. This is a case of a higher demand raised by LDA unilaterally. It is incredulous to imagine that if Tivoli had contravened any of the conditions of the scheme, why did LDA execute the agreement and kept mum for long eleven years. So the initial act of LDA was not illegal as per LDA's own showing but it merely alleges failure to pay certain moneys by Tivoli. Further it is trite and established principle that commercial transactions must have certainty and cannot be reopened or rescinded to the detriment of one of the parties simply because the other party is a government department which has a dominant position. In the letter dated 26.7.2006 issued by LDA, Tivoli was informed specifically regarding approval of adjustment of the plot in its favour and was advised to make the payment of development charges, cost of excess area etc. which was admittedly deposited by Tivoli. Although the learned Single Judge has not elaborately dealt with by reference to historical facts between the parties, the conclusion drawn by learned Single Judge is without any exception and doubtless D.G Khan Cement is merely required to make the payment in respect of land measuring 17 Marlas, 29 Sq. Ft. which was the excess land found to be in possession of D.G Khan Cement as a result of the demarcation carried out by LDA. We do not find any illegality in the impugned order which is upheld and these appeals are dismissed.