1. ' NASIM HASAN SHAH, J.-- This petition is directed against the judgment, dated 13-3-1983 passed by a learned Single Judge of the Lahore High Court dismissing the second appeal filed by the petitioners herein, in limine.
2. ' The petitioners are the owners in possession of land measuring 7 Kanals 15 Marlas 48 Sq. Ft. In the revenue estate, Shish Mahal, which is situated close to the shirne of An Hajveri (commonly known as Data Darbar) in Lahore. The Lahore Improvement Trust framed a Development Scheme way back in 1952 known as Kabari Market Scheme, which was notified on 28-1-1952, whereby inter alia, the land in question was acquired for the above Scheme. Later on, according to the petitioners, on further consideration, the Lahore Improvement Trust decided to abandon the Scheme on the view that it was not desirable to have such a market near the Data Darbar Shrine and, therefore, no further steps to implement the Scheme were taken. However, sometimes in 1974, it appeared that the Scheme was going to be implemented. The petitioners thereupon, filed a suit before the Senior Civil Judge, Lahore, for a declaration that the said scheme was illegal, time-barred and inoperative against their rights and interest and could not be implemented as it stood abandoned by the respondents. This suit was filed without issuance of the statutory notice under section 98 of the Town Improvement Act of 1922 and was dismissed as premature on 15-10-1974. A second suit for injunction was, thereafter, filed but this was disposed of in terms of the statement of Mukhtar-e- Aam of the respondents to the effect that the petitioners would be rejected only in accordance with the law. Not feeling fully satisfied, the petitioners filed yet another suit; this third suit was filed on 22-1-1975, praying that the respondents be restrained from interfering with the possession of the petitioners and the Kabari Market Scheme be declared to be illegal and without authority. This suit continued at a liesurely pace. An amended plaint was filed on 2-12-1979 and, after a full trial, was ultimately dismissed on 20-9-1981. The first appeal preferred against the said judgment and decree before the Additional District Judge and the second appeal Preferred to the High Court all having failed, hence this petition for leave to appeal.
3. ' Sh. Shoukat Ali, learned counsel for the petitioners, has raised three contentions in support of this petition. In the first instance, he submits that although the Lahore Improvement Trust did acquire the land in dispute and even paid the compensation, but owing to the further thought given to the matter, by very high powered committees including all the responsible officials of the Trust, it was decided to abandon the Scheme and even the possession of the land has not been taken. The scheme having been abandoned it was not, therefore, legal to implement the said Scheme at this stage. Secondly, that the Kabari Market Scheme was even otherwise also not a legal scheme, as it was beyond the scope of the provisions of the Town Improvement Act, 1922; and finally, as the petitioners were likely to be displaced by the execution and implementation of the Kabari Market Scheme it was necessary for the Trust to provide for the re-housing of the petitioners and as no such scheme for re-housing of the petitioners had been framed, the above scheme could not be executed in view of the provisions of section 27 of the Act.
4. ' Mr. Farooq Zaman, learned counsel for the Lahore Development Authority, the successor of the Lahore Improvement Trust has been heard in reply.
5. We are afraid it is not possible to accept any of the contentions raised by the learned counsel for the petitioners. It is true that the Kabari Market Scheme was not implemented for a long time, although notified as long ago as 28-1-1952 and that in certain meetings, consisting of some very high dignitaries including the responsible officers of the Trust it was thought that Scheme should not be implemented, but these decisions were never followed by any resolution of the Trust to abandon the Scheme. Nor did the Trust ever apply to the Provincial Government for sanction of the Scheme with such modifications as the Trust might deem necessary to show that it was abandoning or modifying its earlier sanctioned Scheme. Learned counsel for the petitioner has A not been able to cite any law or authority to show that mere delay in implementing a Scheme can tantamount to abandoning it. On the other hand, it is not disputed that the property in disupte was acquired by the respondents; that the petitioners have been paid the compensation which was received (without any objection on the question of its acquisition, the objection being only to its quantum). In these circumstances, when the learned counsel for the petitioners is unable to show that delay simpliciter in the implementation of a sanctioned scheme can amount to its abandonment, the first contention raised by the petitioners must fail.
6. ' As regards the second contention, namely, that the Kabari Market Scheme was beyond the scope of the provisions of the Act, Mr. Farooq pointed out that this contention was never raised by the petitioners at any stage, not even in the amended plaint, which was filed as late as on 9-12-1979.
7. The only contention raised therein was that "the Kabari Market Scheme of the defendant is violative of the mandatory provisions of the Town Improvement Act of 1922 and the other laws, hence the Scheme is illegal and nullity in the eye of laws." However, no provision of the Town Improvement Act, which has been violated, is referred to. On the other hand, Mr. Farooq drew or attention to section 24 of the Act which permits the sanction of Development Schemes. The Kabari Market Scheme being a scheme to develop and improve a part of the city of Lahore clearly fell within the purview of section 24 of the Town Improvement Act.
8. ' As regards the last contention that the petitioners could not be dispossessed until a re-housing scheme was provided for, as laid down in section 27 of the Act, the learned counsel for the respondents pointed out that the conditions prescribed for the applicability of section 27 of the Act were not fulfilled in the present case. Furthermore, this point had not been agitated in their suit and no issue was framed thereon. Be that as it may, the issue raised has been taken care of by the High Court in its impugned judgment. It was observed therein that the contention (noticed above) was premature, as the petitioners could press the above plea only when possession was taken. It was further observed that "the respondents shall then consider this plea in accordance with law and see if the appellants (petitioners herein) are entitled to any or what relief".
9. ' In the conclusion, this petition fails and is dismissed hereby.