' ABDUL SHAKURUL SALAM, J.-Grain Market and Karyana Market were situated within Faisalabad Town and were congested. It was decided to shift them outside at Dijkot Road. The Grain Market was so established. We are not concerned with that. For Karyana Market, the Deputy Commissioner, Lyallpur and the Improvement Trust, Faisalabad exchanged letters and the arrangement was agreed to. The Improvement Trust applied for State land measuring 15 Kanals 2 Marlas situated in Khasras Nos. 1581 to 1587 for setting up a new market (Karyana Market) there which had become necessary due to the establishment of the new Grain Market on the opposite side. The Improvement Trust requested the Deputy Commissioner to get sanction of the Government for transfer of the State land to the Improvement Trust. In due course, on 7th March, 1964 the Governor of the West Pakistan was pleased to accord sanction to the sale, by private treaty of State land measuring 15 Kanals 2 Marlas comprising Khasras Nos. 1581 to 1587 at Lyallpur in favour of the Lyallpur Improvement Trust, Lyallpur for setting up a new "Karyana Market" at the rate of Rs, 4,000 (Rupees four thousand only) per Marla plus 10% surcharge for sale by private treaty payable in a lump sum". This is vide Annexure 'F' with the writ petition. The Improvement Trust framed a scheme and it was approved by the Provincial Governor on 7th December, 1964 Annexure `C'. The relevant portions are detailed below : "(No, S.O.V. (IG) 7.86/64-1n exercise of the powers conferred by subsection (1) of section 41 of Town Improvement Act, 1922, the Governor 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 and 2 Marlas approximately situated in Khasras Nos. 1581 to 1587, bounded : ' On the east by Godown of Shandara Goods Transport Co., ' On the west by Municipal Hospital.. On the north by Dijkot Road ; and ' On the south by Pakistan Western Railway Godown.
(2) The Lyallpur Improvement Trust is hereby authorised to acquire either under the Land Acquisition Act, 1894, as modified by the 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) the laying out and construction of streets in the scheme' area ;
(ii) the retention, letting on hire, lease, sale, exchange or disposal otherwise of the land vested in or acquired by the Trust and the building constructed on it :
(iii) the demolition of buildings or portion of buildings comprised in the scheme area ;
(iv) the raising, lowering or reclamation of any of the land for the purpose of this scheme ;
(v) the erection of buildings by the Trust or by the persons who purchase any of the land comprised in the scheme ;
(vi) the drainage, water supply and lighting of streets, altered or reconstructed ;
(vii) the doing of all acts intended to promote to health of the residents of the area concerned ;
(viii) the layout of any land comprised in the scheme ;
(ix) the provision of open space in the interest of the residents of the locality comprised in the scheme or any adjoining locality ; and
(x) the provision of facilities for communications.
OBJECT OF THE SCHEME The object of the scheme are :
(i) to provide a well laid out and orderly developed areas, having streets of adequate width and satisfactory sitting and open spaces and other amenities sufficient for the needs of the area to be developed ; and
(ii) to set up a standard for positive development consistent with the standard laid down by the Provincial Town Planner in Regulative Town Planning Scheme, thereby encouraging the individual developer to improve the standard.
The layout of the area shall be in accordance with drawing No, PTP/1895/60, prepared by the Provincial Town Planner, West Pakistan. The building operations in this area shall be controlled by the Schedule of Clauses given in Appendix 'A' appended thereto.
The scheme shall come into force with effect from the date of publication of this notification.
APPENDIX 'A'
Development schemes under sections 24 and 28 of the Town Improvement Act, 1922 for the area known as New Karyana Market Lyallpur in Khasras Nos. 1581 to 1587.
(1) The scheme may be 'cited as the development scheme under section 24 read with section 28 of the Town Improvement Act, 1922, for the area known as New Karyana Market in Khasras Nos. 1581 to 1587 at Lyallpur and as illustrated on Drawing No, P.T.P./1895/60.
(2) Interpretation.-In this scheme, except where the context otherwise requires or it is otherwise expressly provided, the following words and expressions shall have the meanings hereby respectively assigned to them, that is to say.
(ix) 'shop-cum-residence' 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.
Part 111-Building restrictions and use of land.
(5) Tpye of building permitted.-No building other than shop-cumresidence shall be permitted and its use for any other purpose is hereby prohibited : Provided that any building used in a manner inconsistent with the provisions of this scheme at the date of coming into operation of this scheme, may continue in such use.
(6) Use of land-No land in the area shall be used for any purpose (even though not involving the erection of buildings inconsistent with this scheme.
8 to 19 ...
' The successor of Improvement Trust, Faisalabad Development Authority respondent No, 2 started auctioning the plots developed under the aforesaid scheme. The appellants filed a writ petition challenging the action, Bearing No, 1638 of 1981 but the same was withdrawn on the ground that the Board of Revenue had issued instructions restraining the respondent from auctioning the plots.
Later on the Board of Revenue did not extend the stay order and the appellants filed a Writ Petition Bearing No, 2249 of 1981 which has been dismissed on 19th April, 1982. Hence this Intra-Court Appeal.
2. Learned counsel for the appellants has contended that the sale of the land by the State in favour of the Improvement Trust was "for setting up a New Karyana Market" and for this purpose a scheme was prepared which was sanctioned on 7th December, 1964 by the Provincial Government. The action of the respondent authority to sell the plots developed under the scheme indiscriminately is without lawful authority because the plots could only be used for establishing a Karyana Market and it was for the benefit of the appellants who were carrying on business in the old Karyana Market which was sought to be shifted. It is added that the respondent authority had all along accepted the fact that the scheme aforesaid was prepared for establishing a Karyana Market and, therefore, it is not permissble for it to turn round and establish a General market on the land.
3. Mr. S.M. Zubair, Assistant Advocate-General appearing for the Provincial Government has submitted that although the Provincial Government had. Sold the land to the respondent for establishing a Karyana Market, yet, it has no objection if the respondent authority establishes any other kind of market on the land. In fact, the Provincial Government has agreed to sanction the change of the project of the Karyana Market to General Market as well as it has allowed the respondent to change the name from Karyana Market to Faisal Market, vide memo. Dated 12th April, 1982.
4. The case of the respondent No, 2 Faisalabad Development Authority as stated in its comments in pursuance of the directions of the learned Single Judge, dated 2nd May, 1981 was that the land "was acquired for establishing a Karyana Market" but "the appellants have no right in law to ask for the sale of the shop-sites to them otherwise than through open auction". It was stated that, "it may also be added here that the petitioners themselves are not prepared for the shifting of the Karyana Market from the present place to the market in question. In a meeting held with the representatives of the Karyana Merchants with the Secretary to Government of the Punjab, Housing and Physical Planning Department proposal was made by the learned Secretary to exchange the shop-sites in the market in question with the shops in possession of the petitioners in the existing marketjBazar.
This proposal was not accepted by the said gentlemen. The Faisalabad Development Authority is still prepared to honour the above-said offer. It is also noteworthy that the congestion from the town can only be removed if the petitioners agree to surrender their existing premises otherwise even with the establishment of the market in question the issue cannot be resolved". In due course of time, according to the case of the respondent No, 2 as stated by its learned counsel, because of the non-co-operation of the appellants the plots were sold in auction and are no more available to the respondent and the latter is in no position to offer any plot to the appellants except that the latter may, like anybody else, purchase some of the plots still available in open public auction. The learned counsel further contended that the appellants have no right to maintain the Constitutional petition nor the present appeal because no right was conferred in their favour by the scheme sanctioned on 7th December, 1964. He next submitted that the scheme was sanctioned under section 41 of The Town Improvement Act, 1922. After repeal of the Act by the Punjab Development of Cities Act, 1976 (Act XIX of 1976), under section 47, subsection (2) thereof, it was provided that, "Nothwithstanding the fact of the Town Improvement Act, 1922, ceasing to apply to the Areas :-
(i) all rules, regulations and orders made, notifications issued, land acquired, schemes prepared shall so far as they are consistent with the provisions of this Act, continue in force and be deemed to have been made, imposed, levied, entered into, instituted, prepared, executed, accrued or incurred, taken and initiated under this Act. Learned counsel submits that the scheme prepared under the aforementioned Improvement Trust Act was thus continued under the last mentioned provisions and was "to be deemed" to have been prepared "under this Act" viz. The Punjab Development of Cities Act, 1976. Under section 13 of this Act, it is laid down that, "Any scheme prepared under this Act, may at any time, be amended, modified or abandoned by the Authority, in such form and in such manner as may be prescribed." The learned counsel has submitted that for the non-co-operation of the appellants the scheme prepared under the Improvement Trust Act and carried on under the Punjab Development of Cities Act, 1976, was changed by the decision of the Authority, dated 7th June, 1981 wherein it was recorded under issue No, 3 that, "The issue was discussed at length and finally it was decided that in the larger interest of the public of Faisalabad, the object of Karyana Market Scheme is changed and the same is made as General Market. The name of the market is also changed from Karyana Market to Faisal Market. The available shop sites in the market shall be sold through public auction." This decision of the Authority was approved by the Provincial Government as well, vide memo. Dated 12th April, 1982 quoted by the learned Assistant Advocate-General. The learned counsel submits that Faisalabad Development Authority has, therefore, rightly acted in auctioning the plots in accordance with the decision of the Authority and the approval of the Provincial Government.
5. In reply, the learned counsel for the appellants has submitted that the right of the appellants to maintain the constitutional petition or the appeal was recognised by the learned Single Judge when he held that the appellants had the locus standi. Against this decision, the respondent had not filed any objection petition, nor the objection taken by the learned counsel for the respondents has any substance because it was for the purpose of shifting the old Karyana Market where the appellants carried on business to the new site that the scheme was prepared and sanctioned. As regards the rights of the Faisalabad Development Authority to change the scheme as well as its name and to auction the plots, the learned counsel has submitted that the contention of the learned counsel for the respondent No, 2 the scheme shall "be deemed" to have been prepared under the Punjab Development of Cities Act, 1976 in view of the provisions of section 47, subsection
(2) and can be amended or modified under section 13 of the said Act, is not tenable because under section 47 (2) the scheme was to continue in force, that is to say, was to be carried on and implemented and when it was said that the scheme prepared shall be deemed to have been prepared under this Act that only meant that that was for the purposes of execution or ancillary matters thereto. The provisions of section 13 of the Punjab Development of Cities Act, 1976 relied upon by the learned counsel for the respondent No, I will show that it lays down that "any scheme prepared under this Act, may be at any time, be amended, modified or abandoned by the authority". The provision does not lay that "any scheme prepared under this Act or deemed to have been prepared under this Act". He submitted that whenever deeming provision is intended to be made part of an Act, it is specifically so stated. Learned counsel referred to the provisions of Articles 250 and 264 of the Constitution of Islamic Republic of Pakistan, 1962 and 1973. He submitted that legislative intent is relevant for purposes of interpretation, as held in Mahavirprasad v. M.S. Yagnik (1).
6. We have heard the learned counsel for the parties at length and perused the record with their assistance. It appears to be that it is indisputable that the scheme was prepared for shifting the Karyana Market
(1) AIR 1960 Bom. 191 ' in the town to the suburb and for this purpose the Governor of the Province was pleased to sanction sale of State land to the predecessor-ininterest of the respondent No,
2. Although under the general law after the sale has been effected, the seller has no right to control the use of the sold property, unless any restrictive covenant is inserted in the sale-deed itself and it is nobody's case that it was there, yet, we are conscious of the fact that if State land is obtained on representation that it shall be used for a specific purpose, it may be open to the State if the land is subsequently used for any other purpose to say that the sale made by it was for a definite purpose and the land sold cannot be used for any other purpose because the State may have sold the land for a purpose, let us say, like establishing a hospital and if the buyer later on were to make a B Ball Room, the State may perhaps object. But the question does not arise in this case for the reason that the State is not averse to the us of the land by the respondent No, 2, instead for a Karyana Market for General Market and changing its name. In fact, the Provincial Government has agreed to the charge of the use of the land as well as the name of the project as decided by the Authority.
The question, therefore, may firstly be examined as to whether under the scheme sanctioned on 6th December, 1974 the appellants had acquired any right at all. No doubt, they have been held to have the locus standi to challenge the action of the respondent authority to auction the plots yet that does not mean that the right in the land has been acknowledged in favour of the appellants. A perusal of the scheme would show that the Governor was C pleased to "sanction the development scheme known as Karyana Market, Lyallpur" but the scheme nowhere lays down that the sites in this market shall be given over to, or, sold to the businessmen of the old Karyana Market i,e, the appellants. On the other hand, its provisions show that the authority has been given full power to utilize the land for the 'object of the scheme' stated therein which does not include sale in favour of the appellants. Provision in sub-para. (ix) of para. 2 of the Appendix 'A' states that "shop-cum- residence 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." The D appellants, according to their own case, are wholesale dealers. Therefore, they would hardly be entitled to the sites which were "for the purpose of carrying on retail trade." The contention of the learned counsel for the appellants that in para. 7 of Part III of the Scheme it is laid down that on land in the area shall be used for any other purpose (even though not involving the erection of buildings) inconsistent with this scheme and "that E will show that the sites shall not be sold by open auction, is not borne out by the provision, nor, any right in the appellants flows therefrom. The sites were to be disposed of according to the judgment of the respondent authority and it could decide to dispose of those through public auction. The appellants could participate like anybody else. Secondly, the contention of the learned counsel for the appellants that the deeming clause in section 47(2) of the Punjab Development of Cities Act, 1976 read with section 13 thereof does not mean that a scheme prepared under the repealed Town Improvement Act, 1922 could be amended, modified or abandoned because section 13 lays down that that can be done for "any scheme prepared under this Act" viz. Act of 1976, is specious but not necessarily sound for the reason that if it were to be so, the deeming clause will become redundant and old schemes static.
Reliance of the learned counsel for the appellants on the Articles of the Constitution wherein it was laid down that "Where a law is repealed, or is deemed to have been repealed by Constitution..." and that deeming clause is expressly inserted, is not apt because it was in a Constitutional document for abundant caution and was meant to cover the case of repeal by implication, either through legislative enactment or any of the provisions of the Constitution. In the case in hand, the reading of section 47(2) with section 13 of the Act 1976, leaves no doubt that the intention of the Legislature was that the schemes prepared under the old law shall continue in force and be deemed to have been prepared under the Act of 1976 and when it was provided in section 13 thereof that any scheme prepared under this Act F may be modified or amended, it was clearly envisaged that if the schemes prepared under the old law were to be carried on as required, then, necessary jurisdiction for amendment or modification may be conferred on the body required to do the needful. The authority has, in fact, exercised its power of changing or modifying the scheme and this action has been approved by the Provincial Government as well. This approval would have held good even under the old law as section 43 of the Town Improvement Act, 1922 lays down that "a scheme under this Act may be altered by the trust at any time between its sanction by the Provincial Government and its execution". The provision proceeded that I financial implications were involved, previous sanction of the Provincial Government will be obtained. In the case in hand, the successor of the Trust, that is to say, the respondent No, 2 has altered the scheme and has got the approval of the Provincial Government also. Under the amended scheme, the Authority is empowered to auction the plots. In all the circumstances of the case and in view of the relevant legal provisions no direction can, therefore, be issued that the respondent authority must sell its plots to the appellants or not to sell those through public auction. Hence, we find no force in this appeal and the same is dismissed. In the circumstances, the parties are left to bear their own costs.