This judgment shall dispose of Writ Petitions Nos. 7256 of 1980, 7257 of 1980, 2753 of 1981, 2638 of 1981 and 8024 of 1980, as common questions of law and facts have been raised therein. It shall, however, remain on the file of Writ Petition No. 7256 of 1980.
2. Precisely, put, the facts relevant for the disposal of these cases are, that before partition of the Sub-Continent, a non-Muslim by the name of Lala Devi Dyal Chandok, got a Housing Scheme sanctioned on 20-i1-1943 under section 260 of the City of Lahore Municipal Corporation Act, 1941, in respect of his lance located on Aran Road, Krishan Nagar, Revenue Estate, Rajgarh Sheeshmahal, Lahore. The Scheme had roads and streets and also provided open spaces such as play grounds etc. The sanction of the Scheme is confirmed by the Town Planner of the respondent Authority vide his letter dated 2.6-5-1980 (Annexure `D'). Lala Devi Dyal Chandok having migrated to India, the property belonging to him became an evacuee property. Consequently, a number of plots lying vacant in the said Development Scheme were treated as evacuee property, taker over by the Settlement and Rehabilitation Department and disposed of through public auction, held on 5-7-1X1, under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The petitioners, or for that matter their predecessor-in-interest, took part in the auction; in respect of different pins, particulars--a in their respective writ petitions and shown in the plan Annexure `F thereto. Their bids being highest were accepted; in due course of time the plots were settled on them, and P.T.Ds. Issued in their favour. These transfers were also acted upon in the Revenue record. It is contended by the petitioners that they took over the possession of their respective plots and some of them also raised construction at the site. .
3. The petitioners' grievance is, that for the area already included within the Development Scheme aforesaid, the L.D.A., has formulated another Development Scheme known as Katchi Abadi Musafar Gali Scheme and without notifying the same in the official Gazette, in implementation thereof, with a view to carve out additional plots, the 30 feet width of the streets is being reduced to 10 feet only.
This action of the respondent authority is under challenge in these writ petitions.
4. I have heard the learned counsel for the parties and examined the available record. On behalf of the petitioners, the learned counsel has raised the following contentions:
(i) that Lala Devi Dyal Chandok Housing Scheme which was duly sanctioned in accordance with law, has not been cancelled or scrapped; it being still in force, the area covered thereby, cannot be utilised for any other scheme.
(ii) that on 16-2-1983 when this case came up for hearing before the Court, the then learned counsel for the Authority expressed the opinion, that the matter in dispute could advisably be settled outside the Court; in case the petitioners approached the Authority in this behalf. The petitioners, thereafter, produced their title documents before the Authority and Even the Deputy Settlement Commissioner confirmed the factum of issuance of P.T.D's. To the petitioners. That on the one hand the petitioners were given to understand that their grievance would be redressed amicably outside the Court but on the other hand, during the pendency of the writ petitions and in violation of the stay order, the Authority made allotments of plots to different persons who were subsequently arrayed as respondents. These allotments/transfers, are utterly without lawful authority. The petitioners have also filed Criminal Original No. 141-W of 1986, against the respondents which is still pending.
(iii) that the petitioners were persuaded to purchase plots in the Development Scheme on the understanding that amenities such as wide public streets, open places and other facilities, essentially attached to a Development Scheme, would be, freely available to them. The Scheme having been acted upon cannot be altered to their detriment, the width of the streets reduced and the locality converted into a congested area and that too without hearing them.
5. In a reply to these submissions, the Authority has not denied the sanction of Lala Devi Dyal Chandok Housing Scheme, butt contended that since the area was not developed, according to the Scheme a number of persons occupied the sites and raised Katcha huts and "Jhuggis" in a haphazard manner. The Government in the larger interest of the inhabitants of the locality, in pursuance of C.M.L.A's. Announcement, declared the areas as Katchi Abadi and sanctioned the Katchi Abadi Musafar Gali Scheme. It is submitted that the Authority, in law, was bound to implement the Scheme; the action taken by it is not open to any objection and cannot justifiably be assailed through writ jurisdiction.
6. The stand of the Settlement Department, as disclosed in their parawise comments placed on the file of Writ Petition No.7256 of 1980 is_____________________________ "That the Settlement Department published a list of evacuee plots to be auctioned in the month of July, 1961. On P-9 of the list plots belonging to Lala Devi Diyal Chandok, were also included in the auction list. It is, however, submitted that a private scheme inaugurated by the Evacuee owner stands approved by the Punjab Government under the Lahore Municipal Corporation Act, 1941.
Since the scheme was not physically implemented upon before the partition of the Sub-Continent so the entire land, the subject matter of the Scheme, was transferred in the ownership of the Central Government. Thus, the same was disposed of by the Settlement Department in pursuance of Displaced Persons (Settlement and Rehabilitation) Act, 1958. All the plots were disposed of through unrestricted public auction held from time to time. Almost in all the cases Permanent Transfer Deeds have been issued to the auction-purchaser ... .............. .............. .... The L.DA. Or any other Authority is not at par to substitute or impose any other subsequent scheme in the titled area by altering and narrowing. The streets/roads unless the open space/land is acquired by the L.D.A. With the concurrence/approval of the Settlement Department or in the alternative that the entire Scheme is rescinded by the Government of the Punjab . . . . . . . . . . .---
7. Under Section 13(3) of the Lahore Development Authority Act, 1975, it is compulsory for the Authority to publish the sanctioning of the Scheme in the official Gazette. No such notification has been placed on the file and rather in Annexure `E' it is conceded that the scheme was not published in the official Gazette. It is, however, stated therein that for formulation of `Katchi Abadi' Scheme over State land, issuance of notification is not necessary. Legally such an assertion---is not tenable, for, the Authority owes its existence to the Act and under the Act all Schemes framed and implemented by it, must be approved by the Provincial Government and then notified in the official Gazette. Section 13 which does not recognise distinction between the State and non-State land as to the formulation of a Development Scheme. As regards, the plea that the area was declared as Katchi Abadi, in pursuance of C.M.L.A.'s announcement, the Respondent-Authority has not added to this file any document to support this contention. The only document annexed to the writ petition, in this behalf, is the Cabinet Secretariate's letter dated 13-2-1988; Para No. (II) hereof dealing with Katchi Abadi, is reproduced below: "Government has decided that from today proprietary rights will be conferred on the inhabitants of Kalchi Abadrs on Government lands. They will, however, not be allowed to sell this land for a specified period of time. Cases of Katchi Abadis on private lands are being reviewed so that they may also get proprietary rights after the rate of compensation to the owners and certain allied matters have been settled. Over and above this, the Federal and Provincial Governments will take steps to provide water, electricity and other civil amenities to the Katchi Abadis."
This letter merely make mention of conferring of proprietary rights on the inhabitants of Katchi Abadi or; Government lands, but nowhere ordains that the streets and open spaces in Lala Devi Dyal Chandok Housing Scheme, have been declared as Katchi Abadi. The respondent thus, has failed to establish that in respect of land in dispute, Katchi Abadi Musafar Gali Scheme was declared and sanctioned validly.
8. It is not disputed that Lala Devi Dyal Chandok Housing Scheme had not been cancelled by the Government when in the year 1961 the plots in question were auctioned to the petitioners. These plots, therefore, went out of the compensation pool and became private property of the petitioners.
The streets in question are essential for the use and comfortable enjoyment of the properties settled on the petitioners. The Scheme aforesaid was acted upon by the petitioners and some of them also raised constructions at the site. The reduction of the width of the streets is a radical change in the scheme. Such alteration which is detrimental to the interest of the petitioners could not have been made without giving them an opportunity of being heard, but they were not associated with such alteration. The alteration of the Housing Scheme is thus illegal. Further, by virtue of section 48(3)(i) of the Lahore Development Authority Act, a Scheme made before its enforcement continues in force so far it is not inconsistent with the provisions of Act. No such inconsistency was pointed out to me on behalf of the respondent. On this ground as well, the impugned Scheme and its implementation suffers from a patent illegality.
9. Writ Petitions Nos. 7256 of 1980, 7257 of 1980 and 8024 of 1980, were filed in the year 1980 and the other two writ petitions in the year of 1981. In the first two writ petitions by order dated 2-7-1980 a direction was given for maintenance of status quo. Likewise similar direction was given on 1-6-1981 in the last two petitions. The newly-added respondents appeared on the scene and the plots were allotted to them during the pendency of the writ petitions. Thus, the allotments/transfers in their favour, are hit by the rule of lis pendens and the transferee's cannot hold any rights in the property against the rights of the petitioners. In any case, the status quo order had the effect of depriving the. Authority to deal with the property till such time the Constitutional petitions were decided.
These allotments/transfers being in violation of the status quo order, were made without lawful authority.
For all these reasons, these writ petitions, are accepted, the impugned action of respondent No. 1 seeking to implement and execute the Katchi Abadi Musafar Gali Scheme, so far as the petitioners are concerned, is declared to be without lawful authority and of no legal effect. The parties are left to bear their own costs.