' This will dispose of C.R.No,1246 of 1989 by the plaintiff, Bilal Nasir, and C.R. No, 2237 of 1989 by the Province of Punjab and others. They have arisen out of two suits, one brought by the plaintiff, Bilal Nasir, and the other brought by the plaintiff, Bilal Nasir, and the other brought by the plaintiffs Mst.
Akhtari Begum and others. Both these suits were tried by the same learned Civil Judge and were decreed, the suit of Bilal Nasir, by his judgment dated 18-12-1988 and the suit of Mst. Akhtari Begum by his judgment dated 10-9-1988. The defendants, namely, the Province of Punjab and another preferred two appeals. Unfortunately, the appeals were entrusted to two different learned Additional District Judges for disposal with the unenviable result, that the learned Additional District Judge, Sargodha, who heard the appeal of Bilal Nasir, plaintiff, accepted the appeal and reversed the decree of the learned Civil Judge dated 18-12-1988 and the learned Additional District Judge, Sargodha, who heard the appeal in the suit of Mst. Akhtari Begum etc. Dismissed the appeal by his judgment dated 28-3-1989.
2. The plaintiffs had purchased the land situate in Satellite Town, Sargodha,from the Government through the Housing and Physical Planning Department by two different deeds, the sale-deed in favour of Bilal Nasir being dated 25-6-1983 (Ex.P.6) and the sale-deed in favour of Mst. Akhtari Begum etc. Being dated 23-2-1983 (Ex.P.7), one of the conditions of transfer in favour of the plaintiffs being that they "shall use the land only for residential purposes". It is common ground between the parties that in violation of that term, the plaintiffs had the building plans sanctioned from the Municipal Corporation, Sargodha, and have constructed shops and shops garage etc. And are using the land for commercial purposes. They were, therefore, served with notices requiring them to stop this "commercial activity forthwith" and threatening them with the demolition of unauthorised construction. Bilal Nasir, therefore, brought a suit for perpetual injunction saying that heing the owner of the land, he has a right to use it in any way he wishes to use it and that the defendants were not competent to interfere with his ownership rights and Mst.
Akhtari Begum etc., plaintiffs, sued to have it declared that as owners of the land, they were entitled to raise construction in accordance with the building plan sanctioned by the Municipal Corporation, Sargodha, and that the defendants were not entitled to interfere with their rights of ownership. The defendants contested the suit by filing written statement. According to them, as the land was allotted to the plaintiffs for residential purposes, it could not be converted into a commercial property.
3. On the parties' pleadings, several issues were formulated and tried. On the crucial issue-- whether the plaintiffs were entitled to use the property for commercial purposes contrary to the expressed terms for the sale-deeds prohibiting the use of the land for purposes other than residential, the learned Civil Judge found that the land was transferred to the plaintiffs for residential purposes; that the plaintiffs had obtained the approval of the Municipal Corporation for their building plans; that a letter was issued by the Cantonment Executive Officer, Sargodha, to the Deputy Commissioner, Sargodha, and the Chairman, Municipal Committee, Sargodha, saying that a part of SargodhaFaisalabad Road passing through the Satellite Town Scheme had been declared a Highway; that the plots of the plaintiffs were situated on the road which had been so declared a Highway and the "main traffic is passing through Satellite Town Scheme resulting in the automatic change of the area from residential to commercial one". In his view, "the situation has made the atmosphere unsuitable for residence due to the noise of the heavy traffic". He also found that the Satellite Town Scheme "stands transferred to the Municipal Corporation and afterwards Municipality was competent to saction the site plans of the plots to the owners" and that "after the sale of the plot and receipt of the sale price alongwith other dues, the defendants have no right to interfere in the ownership, possession and construction of the plaintiff with regard to the plot in dispute". The learned Civil Judge went on to hold that "according to law the proprietor of any property has every right to use his property according to his own requirements and desires. The only check is that the requirements should not be illegal and against morality". In this connection, he also noticed the fact that "most of the owners have constructed their plots in the shape of plazas" and there was no explanation "on the part of the defendants that why the plaintiff was chosen as a scapegoat".
4. While endorsing the findings of the learned Civil Judge in the suit of Mst. Akhtari Begum, the learned Additional District Judge was content to say that "because of the change in the nature of the area in which the property in question is situate the respondents could commercially use their property and all the properties in the surroundings have been so converted" and that "as the respondents are intending to raise construction exactly in accordance with the site plan approved by the Municipal Corporation, Sargodha, they are competent to do so". The learned Additional District Judge who dealt with the appeal in the suit of Bilal Nasir, plaintiff, very properly referred to the terms of the sale-deed and the contents of the letter which had been relied upon by the plaintiffs for their contention that the Government had never authorised the Municipal Corporation to sanction the building plans and observed that the building plans were to be approved by the Deputy/Directors/Secretary, District Allotment Committee concerned. In his view, the Department had served notices to persons other than the plaintiffs who had similarly contravened the conditions of the sale-deeds and that there was nothing to show that the plaintiffs had approached the Government for relaxing the condition.
5. Learned counsel for the plaintiff, Bilal Nasir, argued and his arguments were adopted by the plaintiffs in the other case, that the entire area where the plots in question are situate has become a commercial area; that other owners of such plots were also using their plots for commercial purposes and the action of the defendants was mala fide for there was no reason why the plaintiffs were singled out for what he called this step motherly treatment. In this connection, reference was made to the proceedings of a meeting convened by means of a letter dated 8-7-1969 (Exhs. P.3 and P.4) to show that the Satellite Town, Sargodha, had been taken over by the Municipal Corporation. The Satellite Town, Sargodha, it was asserted, had been included within the limits of the Municipal Corporation. My attention was also called to the testimony of Nazar Abbas, one of the defendants' witnesses, who admitted that there were a number of shops in the area where the plots in question were situate and that some of the persons, who had applied for permission to use their plots for commercial purposes, had been given permission to do so. Learned counsel for the plaintiffs thought that the plots in question were governed by the Town Improvement Act, 1922 which was replaced by the Punjab Developement of Cities Act, 1976.
The last contention can be dealt with at once. Admittedly, the transfer of the plots in question in favour of the plaintiffs was from the Government through the Housing and Physical Planning Department and not from the Trust, a corporate body established under the Town Improvement Act, 1922, or from the Authority, also a body corporate, under the Punjab Development of Cities Act, 1976. Neither of these Acts has, therefore, any relevance for the resolution of the question raised herein.
6. The short question requiring determination therefore is whether the condition in the sale-deeds that the plaintiffs would not use their plots for purposes other than residential is a valid condition and is binding upon the plaintiffs.
8. Now, it appears that if the transfers in question were governed by the general law such as the Transfer of Property Act, 1882, it would perhaps have been difficult for the Government to support the imposition of such a condition upon the future use of the property. But the general law must give way to the special law, if any. Therefore, one begins by asking the question--is there any law under which the Government could restrict the future use of the property by imposing the condition under consideration? The answer, it seems to me is 'yes'.
9. By Article 173 of the Constitution, the executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property on behalf of the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts; and "all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize."
10. Transfer of land by the Federal Government or a Provincial Government, Article 173 of the Constitution further provides, "shall be regulated by law".
11. The law which regulates such transfer of land, as is mentioned in Article 173 of the Constitution, is the Government Grants Act, 1895. That Act by its section 2 enacts that "nothing in the Transfer of Property Act, 1882 shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein made or hereafter to be made by or on behalf of the Government to or in favour of any person whomsoever"; and section 3 thereof declares that "all provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding." The object of the Government Grants Act, 1895, and its sections 2 and 3, it appears plainly, was to empower the Government to make a grant or transfer of land in favour of any person subject to any restrictions, conditions and limitations and to declare that such restrictions, conditions or limitations "shall be valid and take effect according to their tenor" notwithstanding any rule of law, statute or enactment to the contrary. Learned counsel for the plaintiffs did not call to their aid any provision of the Transfer of Property Act, 1882. It has however been seen, that section 2 of the 1895 Act expressly mentions that Act and there is no doubt that it was to exclude the application of the general principles enacted in that Act to the transfers by Government that the 1895 Act was passed. It follows inevitably therefore that the condition in the sale-deeds in the plaintiffs' favour namely that they would use the property in suit for residential purposes only was a valid condition and that the Government was within its right to require the plaintiffs to abide by that condition or to violate that condition at the peril of the buildings being demolished.
12. That takes me to the contention that the area where the property in suit is situate has been included within the municipal limits and that the municipal corporation has sanctioned the plaintiffs' buildings plans. As observed above, for that contention the plaintiffs relied upon the decisions contained in Exhs. P.3 and P.4. They however merely show that the Satellite Town Schemes were transferred to the Municipal Committees for "maintenance" purposes. In any case the decisions contained in Exhs. P3 and P.4 did not authorise the Committee to waive on behalf of the Government the condition contained in the sale-deeds namely that the properties would not be used for commercial purposes. Nor does the fact that the area has assumed the character of a commercial area, in my judgment, affect the legal position that the plaintiffs must hold the property in accordance with the terms and conditions contained in their sale-deeds.
13. Indeed the arrangement under which the plaintiffs obtained the property in dispute from the Government was a contractual arrangement. It was in evidence that some of the owners, similarly situated, had approached the Government and the Government had waived the condition requiring them to use the property for residential purposes only. I am told that the plaintiffs had also approached the Government with a similar request. As observed above, the relationship between the parties being a contractual relationship, there is no question that the Government can waive the condition on the plaintiffs' request. But that is a matter between the plaintiffs and the Government and not for the Courts. However if the Government has waived the condition in some cases, the plaintiffs can legitimately claim to be treated as others similarly placed were, for like cases must be decided alike.
14. For these reasons, Civil Revision No, 1246/89 of Bilal Nasir is dismissed and Civil Revision No, 2237/89 of the Province of Punjab and others is accepted, the judgment and decree of the Appellate Court in the former case is upheld while the judgments and decrees of both the Courts below in the latter case are set aside with the result that both the suits stand dismissed. The parties are however left to hear their own costs.