' This judgment will also dispose of R.S.A. Nos. 29/1967, 30/1967, 31/1967, 32/1967, 33/1967, 35/1967 and 366/1967 as they arise out of the judgments/decrees dated 24-6-1966 of Mr. K.M.A. Samdani, the then District Judge, Sialkot, comprising the same questions of law and facts.
2. The respondent/plaintiff's claim in the suit was that being an owner of the six Marlas in question he was entitled to raise a house thereon in accordance with a site plan submitted by him to the appellant/ Municipal Committee, Sialkot, on 6-10-1964 for approval. It was, however, rejected on 2-12-1964, as it contravened a Scheme enforced in the area in the years 1941-45. Challenging the same, he contended that the Scheme on the basis of which the plan was rejected, had itself become void having lapsed; that it was bad in law even otherwise as it acquired more than 20 per cent of the respondent's ownership and that he had not been paid compensation for 10 per cent of his area.
3. The suit was contested by the appellant/Committee pleading that it was not maintainable; that the Scheme had not lapsed; that no area exceeding the permissible limits of 20 per cent was acquired or reserved and that the proposed plan contravened the Scheme already sanctioned by the Government. The following issues were framed by the trial Court:
(1) "Whether the plaintiff is the owner of the site in question, if not, what is its effect? O.P.P.
(2) Whether the Scheme in question has lapsed or is otherwise void for the reasons detailed in the 4th paragraph of the plaint? O.P.P.
(3) Whether the rejection order is illegal, unjust and ultra vires? O.P.P.
(4) Relief."
' The suit was decreed and the appeal brought by the appellant/Committee was also dismissed by the learned District Judge.
4. The Scheme was admittedly sanctioned in the year 1941-45. Section 192(2) of the Punjab Municipal Act, 1911 provided machanism for enter taining objections to the acquiring or transferring of the area of individual owners for the purpose of the Scheme. A period of 30 days was provided to make objections to it at least on the grounds (i) that it took away more than 20 per cent of the area and (ii) that compensation for 10 per cent was not paid.
5. The Revenue record relied upon by the plaintiff in the shape of Jamabandis Exh. P.5 and P.6 showed that .in those days, some non-Muslims were owners of the plot. There is no indication if at all they availed the remedy allowed to them by section 192(2) (ibid) and that clinches the matter in so far as these two objections are concerned. Obviously, these could not have been raised in 1964. Even otherwise, a presumption would arise that once a huge Scheme is sanctioned by the Government, all its prerequisites are meticulously observed before finally notifying it in the Gazette. This is how as a past and closed transaction, it had become final and ordinarily should not have died its death alongwith the repeal of the Act.
6. Now a word about the repealing provision itself. Section 4(2) of the Municipal Administration Ordinance, 1960, was relevant and according to counsel, since it did not include the word "Scheme" in the saving clause, the same had lapsed by its conspicuous omission. I am afraid, this interpretation is not conformed to other contents of the subsection.
Although the expression "Scheme" has not been included among many B things saved like appointment, relations, bye-laws etc. etc. yet an all embracing phrase "action taken under such enactment shall . . . be deemed to have been taken . . . under the Ordinance" would cover it. In my view, these words were so pervading that they did not leav behind anything done under the repealed Act. There is no gainsayin the fact that in preparation of such Schemes, considerable efforts and expenditure are involved. It will be a rare phenomenon if by a slight omission in the saving clause of the new legislation, they are really meant to be thrown over-board. Undeniably, being an "action taken" by sanctioning it through issuance of a notification etc. under the old law, it was saved to have full force for future purposes. The Courts below do not appear to have looked to this aspect, and it did not deserve to be entirely ignored either, 'especially when there is a "presumption against changes" in the law [See Maxwell on Interpretation of Statutes, Twelfth Edition, page 116]. Besides, a "Scheme" was construed as "a part of the law" in, Administrator,City, of.
Lahore v. Pandit Suraj Bhan ( P L R XLV, p.373) and there was no reason why not to save it as such under section 4(2) (ibid). Likewise, I am unable to share the view of the learned District Judge that section 24 of the General Clauses Act, 1897, would not apply to save the "Scheme" in question. In Haji Muhammad Ishaque v. Municipal Committee, Sialkot (R.S.A. No. 383/1964 decided on 18-3- 1976) in a similar case, my learned brother Zaki-ud-Din Pal, held it to be applicable to save the Scheme and the reason that the special law will prevail, was considered to be inapt. It embodies a principle of interpretation which may equally be applied even to special laws in order to determine true import of a particular provision which otherwise is susceptible of more meanings than one. On all these premises, I feel fortified to hold that the Scheme was saved. Further, it has not been shown if it was inconsistent with the provisions of section 74 or 75 of the Municipal Administration Ordinance, 1960. In both the Statutes, provisions for "building schemes" and "Master Plan" contemplating restrictions on erections or re-erections were clearly set down, and hence in essence both were pari materia. As a result, therefore, "building scheme" sanctioned under the repealed Act would not be construed to be inconsistent with the "Master Plan" visualized by the repealing Act. In both, power was vested with the Municipal Committee to impose restrictions on erection or re-erection of buildings. Thus, the Scheme in question had no element of inconsistency with any "Master Plan" to be framed under the new Statute. It, therefore, could not be assailed on any premise.
7. As to the non-payment of compensation to the extent of 10 per cent of the area acquired, in the aforecited case of Haji Muhammad Ishaque, it was contrued to be only as ancillary matter not going to the root of acquisition of the land or the "Scheme" itself.
Nothing differently could be held here on the point, particularly because the facts of the present case are quite akin to those in the cited case.
8. Lastly, it was urged that the whole of 6 Marlas were put into the Scheme which being much in excess of 20 per cent thereof made it unsustainable. It needed some evidence of the fact if the non-Muslim owner, from whom the present plaintiff purchased the plot, owned only 6 Marlas or had other property also in the Municipal area of Sialkot city. There is no evidence on the point and without the same, no definite findings could be given. In fact, such an objection had to be raised within 30 days of the enforcement of the Scheme under section 192(2) of the Punjab Municipal Act, 1911. To have raked it up now after two decades i.e. in 1964-65, on the pretext of getting a site plan sanctioned, was not visualized. The Scheme operated eversince and to ask for any construction in contravention thereof was, for obvious reasons, not permissible.
9. For all the above reasons, I feel constrained to disagree with the Courts below. The appeal is accordingly accepted and the respondent's suit is dismissed leaving the parties to bear their over costs.
M.B.A. .