' Khan Muhammad Khan, petitioner has filed this writ petition praying that the sale-deed dated 2- 3-1980 whereby Multan Development Authority (hereinafter called respondent No, 1) has transferred plot No, New 95 measuring 1u9-5/ Sq. Yards. Hassan Parwana Colony, to Muhammad Islam and Muhammad Sadiq sons of Abdul Salam (hereinafter called respondents Nos. 2 and 3) be declared as without lawful authority and of no legal effect.
2. The brief facts leading to this writ petition are that Multan Improvement Trust, predecessor of respondent No, 1, in the year 1950, framed a housing scheme known as "Development Scheme of Bimal Textile Mill area" commonly known as "Hassan Parwana Colony", under Town Improvement Act, 1922 (hereinafter called the Act). This scheme was sanctioned and its drawing/plan was approved by Government of Punjab under section 41 and the necessary notification was issued on 9-8-1952 under section 42(1) of the Act. Part II of the said notification provided that the areas shown in "green colour" in the plan shall be reserved for use as "public open spaces" on which building operation shall be permanently prohibited. It may be stated that the disputed plot formed part of a strip of land so reserved which is situated in-between plot No, 95 (formerly plot No, 97) and plot No,
17. The petitioner purchased plot No, 95 and constructed house thereon which adjoins the disputed plot on its south.
3. It appears that the Trust having found the aforesaid strip of land unsuitable as public open space' allotted the same to one Muhammad Bakhsh, an owner of the adjoining land (outside the scheme) who in turn having divided it into five plots sold out to following persons :-
(1) Mr . Rahim Bakhsh son of Elahi Bakhsh 120 Sq. Yards.
(2) Dr . Muzaf far Bukhari 151-2/3 Sq. Yards.
(3) Mr . Abdul Qaddus 115-1/9 Sq. Yards.
(4) Malik Muhammad Bakhsh 38 Sq. Yards.
(5) Sh. Abdul W ahid 105-5/9 Sq. Yards.
' It came to the notice of the Chairman of the Trust that Muhammad Bakhsh, in violation of conditions of allotment, has transferred the land to the aforesaid persons without obtaining prior approval, therefore, he cancelled the allotment and placed the matter before the Trust for confirming his action. Accordingly, the Trust, vide resolution No, 26 dared 24-12-1963, approved the cancellation. Being aggrieved, Muhammad Bakhsh and the other affected persons made representations and the Trust, having reconsidered the pros and cons of the matter in its meeting held on 31-3-1967, passed resolution No, 22 regularizing the aforesaid sale @ Rs, 9,075 per Kanal and @ 25% transfer charges. Sh. Abdul Wahid above-mentioned then resold his plot (subject- matter of this writ petition) to respondents Nos. 2 and 3, and the Trust approved this sale also on payment of Rs, 219.12 as transfer charges vide memo. No, 2624/MIT, dated 3-5-1972.
4. In the year 1975 respondents Nos. 2 and 3 purchased another Ihata measuring 731-7/9 Sq. Yards in Ward No, 8 situated in the same locality (Hassan Perwana Colony) from Mst. Altaf-un-Nisa and Sh. Abdul Wahid for a sum of Rs, 51,225 through registered deed dated 24-8-1973. The petitioner filed a suit for pre-emption on 2-9-1974 regarding the said Ihata against the respondents. In their written statement filed on 3-4-1975 the respondents refused to acknowledge petitioner's superior right to purchase claiming themselves to be owners in the locality as the Trust had already approved the purchase of the disputed plot by them. At this juncture the petitioner started challenging the conversion of the disputed plat into "residential plot", on the ground that it was part of land reserved for use as `public open space' vide notification dated 9-8-1952.
5. In the year 1976, Multan Improvement Trust vanished because Town Improvement Act, 1922, was repealed by Punjab Development of Cities Ordinance XI of 1976 (hereinafter called the Ordinance) and under this Ordinance Multan Development Authority (respondent No, 1) came into being, which inherited all the rules, regulations, schemes, rights and liabilities of Multan Improvement Trust. The petitioner, therefore, approached and asked respondent No, 1 to re-examine the legality of the transfer of the disputed plot to respondents Nos. 2 and 3. It may be stated here that the purchasers of the other portions of the same strip of land as mentioned in paragraph 3 above have already built their houses thereon and are residing there many years ago. However, on petitioner's application Director, Estate Management, Multan Development Authority, issued a cancellation certificate regarding the disputed plot under Memo. No, 2839-40 dated 19-12-1979 which reads as under :- "Whereas on application dated 19-11-1979 of Mr. Khan Muhammad Khan Niazi the case was re- examined and it has transpired that Messrs Muhammad Islam and Muhammad Sadiq sons of Abdus Salam are not owners but merely allottees of land measuring 109-5 Sq. Yards near plot No, 95, Hassan Perwana Colony. Hence certificate issued vide No, 1004/MIT, dated 31-3-1975 is hereby cancelled."
' Against this, the respondents approached the Authority, respondent No, 1, who in supersession to the aforesaid certificate executed the impugned sale-deed in favour of respondents Nos. 2 and 3 on 2-3-1980, of course, in pursuance of resolution No, 22 dated 31-3-1967 and letter No, 1915 of 1972 dated 3-5-1972 approving the sale. Feeling aggrieved of the execution of the said sale-deed the petitioner has filed the instant writ petition.
6. Respondent No, 1 as well as respondents Nos. 2 and 3 have filed separate written statements supported by the relevant documents and also argued their case separately.
7. Learned counsel for the petitioner vehemently argued that the disputed plot's sale as residential plot by respondent No, 1 was completely without lawful authority inasmuch as this plot was specifically shown in Part H, clause III of the notification dated 9-8-1952 that the area was reserved for 'public open space' whereupon construction of any building was "permanently prohibited".
According to him, the change of the user of the disputed plot could only be made with the previous sanction of the Provincial Government which had not been obtained in this case and as such the sale of the plot for using it as residential premises is nullity in the eye of law. He further submitted that Martial Law Administrator's Instruction No, 10 dated 19-7-1977 circulated under memo. No, AS(S & GAD)-3471 of 1977 dated 24th July, 1977, by Additional Chief Secretary to all Commissioners, Deputy Commissioners and Settlement Officers, clearly placed ban on the sale or giving on lease Nazool land/estate land without prior permission of Martial Law Administrator, Punjab, Zone A, and that the impugned sale-deed having been executed on 2-3-1980 by respondent No, 1 in favour of respondents Nos. 2 and 3 is violative of the aforesaid instructions hence liable to be struck down.
Replying the objection, that the petitioner has no locus stanch to file the instant writ petition being not an "aggrieved party" as none of his legal rights has been infringed qua the disputed plot due to its transfer by respondent No, 1 to respondents Nos. 2 and 3, the learned counsel stated that the facility of light and fresh air being enjoyed by the petitioner at present would certainly be affected if a building is raised on the said plot. Relying on an observation made by the Supreme Court in Mian Fazal Din's case (1) the learned counsel stated that for filing a writ it is not necessary that infringement of a right in its strict juristic sense should be shown. It is sufficient if the petitioner succeeds in showing his personal interest in the performance of legal duty by the respondent which has not been performed in the manner required by law.
8. As against this, the learned counsel for the respondents have argued that predecessor of respondent No, 1 could competently alter or modify a
(1) PLD 1969 SC 223 ' sanctioned scheme between its "sanctioning" by the Provincial Government and its "execution" without prior permission by the Provincial Government provided such alteration does not involve estimated cost beyond Rs, 50,000 under section 43(1) of the Act. He further stated that the petitioner has not challenged the basic resolution No, 22 dated 31.3-1967 whereby the Trust had approved the sale of the whole plot reserved for 'public open space' and has thus practically acquiesced to the sale of other portions of the same plot to Mr. Rahim Bakhsh, Dr. Muzaffar Bukhari, Mr. Abdul Qaddus and Malik Muhammad Bakhsh, the fellow purchasers of Sh. Abdul Wahid from whom respondents Nos. 2 and 3 have purchased the disputed plot, therefore, the petitioner cannot claim to be aggrieved of the similar sale to respondents Nos. 2 and 3.
9. The main attack of the learned counsel for the petitioner is that the disputed plot under the sanctioned scheme and according to the approved plan was reserved for use as 'public open space' but through the impugned sale-deed the same has been disposed of as a residential plot in violation of the notified scheme, hence illegal. It may be stated that the disputed plot in fact is portion of one of the areas reserved as 'public open space' which, as indicated above, was divided into various portions and sold out to different persons mentioned in paragraph 3 of this judgment and the disputed plot was sold to Sh. Abdul Wahid from whom respondents Nos. 2 and 3 have purchased in the year 1972. Both the aforesaid sales were approved under resolution No, 22 of 31-3- 1967 and memo. No, 2624/MIT dated 3-5-1972 by the Trust. This shows that user of this plot for the first time was changed as early as the year 1967. It is simply amazing that the learned counsel has not challenged the legality of this basic resolution nor has he prayed for striking it down. When pointed out, the learned counsel stated that he does not challenge the legality of this resolution. I am sanguine that he fully realises that the impugned sale-deed is based on this resolution and if this resolution is accepted to be in order then the consequential impugned sale-deed cannot be termed as unlawful for it would amount to blowing hot and cold in the same breath. I think, the petitioner deliberately avoided attack on this resolution, perhaps, due to his having soft corner for purchasers/occupants of the other portions of the same plot. Obviously, the sale of all the residential plots carved out of the area reserved for 'public open space' to different persons and regularised by resolution No, 22 dated 31-3-1967 is either legal or illegal but it cannot be that in respect of some of the purchasers the sale is legal and in respect of others, say respondent A Nos.
2 and 3, it shall be illegal particularly when there is no differentiating feature, rather all of them sail in the same boat. In this view of the matter, I find that the petitioner is estopped from questioning the legality/validity of the impugned sale-deed executed in favour of respondents Nos. 2 and 3 by his own conduct, in not challenging the transfer by sale made in favour of others, namely, Mr. Rahim Bakhsh, Dr. Muzaffar Bukhari, Mr. Abdul Qaddus and Malik Muhammad Bakhsh. As for Martial Law Instruction No, 10 dated 19-7-1977, I am of the confirmed view that it is not applicable to the B instant case, first, because it concerns a different category of State land and secondly, for the reason that it has prospective and not retrospective effect.
10. The case of the respondents is that the area in question, reserved for use of 'public open space' was converted into residential plots and sold out to various persons in the year 1967 when the sanction scheme had not yet been 'executed'. The Trust according to the learned counsel had ample authority under section 43 of the Act at the relevant time to alter or modify a sanctioned scheme before its 'execution' provided the alteration did not involve an expenditure beyond Rs, 50,000. For facility of reference section 43 of the Act is reproduced below :- "43. A scheme under this Act may be altered by the Trust at any time between its sanction by the Provincial Government and its execution.
Provided as follows :-
(a) if any alteration is estimated to increase the estimated net cost of executing a scheme by more than Rs, 50,000 or twenty per cent of such cost such alteration shall not be made without the previous sanction of the Provincial Government,
(b) if any alteration involves the acquisition, otherwise than by agreement of any land the acquisition of which has not been sanctioned by the Provincial Government the procedure prescribed in the foregoing sections of this chapter shall, so far as applicable, be followed as if the alteration were a separate scheme."
According to the above-quoted provisions, the Trust can alter or modify the scheme before its 'execution' if the expenditure involved is less than Rs, 50,0 without prior permission of the Provincial Government. The word `execution' according to Black's Law Dictionary-Fifth Edition, denotes "completed", "carried into effect", "already done or performed", "import idea that nothing remains to be done". Learned counsel for the petitioner did not dispute that when resolution No, 22 approving sale of reserved area as residential plot was passed the sanctioned/notified scheme had not yet been "executed". He also did not seriously challenge that the alteration cost was more than Rs, 50,000. It is, therefore, reasonable to presume that the aforesaid alteration in the scheme had been made before its 'execution'. In the circumstances, I find that the Trust (predecessor of respondent No, 1) committed no illegality by having changed the use of the plot in question and respondent No, 1 being successor of the Trust has merely issued the impugned sale-deed to respondents Nos. 2 and 3.
11. For what has been stated above, I find no merit in this petition and dismiss the same accordingly.
Parties are left to bear their own costs.