IJAZ NISAR, ACJ.- As common questions of law and facts are involved, the writ petitions No.11973,11974,11975,11976,11977,11978,11979,11980,11981, & 11982 of 1994 shall be disposed of by this single order.
2. One Muahammad Hussain was the exclusive owner in possession of 38-kanals 3-marlas and 112- sqft land. It was acquired compulsorily by the Lahore Development Authority for the purposes of Housing Scheme known as "Sabza Zar" situated at Multan Road, Lahore. Under the relevant rules and the scheme of acquisition, 30% of the acquired holding was to be exempted in favour of the owner in the form of developed plots, the entitlement of the owner in terms of developed plots on the basis of 30% exemption policy came to 11-Kanals 9-Mar las and 11-Sqft. He was accordingly allocated 62 plots measuring 3,5, & 7 Marlas. Subsequently, it transpired that out of the said 62 plots allotted to Muhammad Hussain, l2 plots had already been allotted to another party. Certain plots were then reshuffled and the aforesaid l2 plots were substituted with 15 plots. This exchange too was duly sanctioned by the competent authority.
3. After the allotment of the plots in favour of Muhammad Hussain had been finalized, a notice was issued to him by the Respondent Authority for the recovery of final instalment of development charges for all the plots exempted in his favour. This demand was fulfilled by the owner.
Accordingly, exemption letters in respect of all the exempted plots were issued by the Respondent Authority in favour of Muhammad Hussain.
4. In terms of para 7 of the exemption letter, Muhammad Hussain was entitled to transfer the exempted plots subject to certain terms and conditions prescribed by the respondent. It is stated that after complying with those terms and conditions, Muhammad Hussain entered into various transactions with third parties and in some cases also transferred certain plots to them with the approval of the Respondent Authority. In a number of cases he executed agreements to sell by receiving earnes money. The third form of such transactions is where deeds of family settlement were executed by him in favour of his sons and a daughter.
5. The situation thereafter appears to have taken a new tum. On 20.9.1994, Director Land Development respondent No.2 submitted a note to Director General, LDA. Respondent No.1 that since the allocation of 3,5 & 7 marlas plots to Muhammad Hussain had raised controversy the already allocated plots should be withdrawn and permission to present the case to the new Allocation Committee be given. Thereon Director General, LDA. Respondent No. 1 approved the withdrawal of the allocation order dated 6.5.1994. This reversed the situation to a position as obtaining prior to 6.5.1994 and jeopardised even those transactions which were made by the exemptee in favour of third parties and which bad since been duly recognized by the respondents.
Admittedly, the action in this behalf was taken without notice to the exemptee owner or the third parties in whose favour he had made the transfers.
6. The claim of the petitioners is that after the issue of the exemption letters, no jurisdiction Or right remained in the respondents to cancel the plots and that too without any show cause notice, especially when further alienations had also been made with the approval of the respondent LDA.
The petitioners have thus prayed for declaration that the impugned orders of the respondents are illegal and without any lawful authority. They have also requested for certain directions relevant to their respective claims in their individual Writ Petitions.
7. The writ petitions can broadly be divided into three categories with reference to the respective claims of the petitioners:- In Writ'Petitions No. 11973, 11974, 11975, 11977, 11979, 11980 & 11981 of 1994, the petitioners have claimed their rights in the disputed plots on the basis of family settlement with the original exemptee, namely Muhammad Hussain and have requested for an order directing the respondent LDA. To make effective the transfer of plots in their favour on the basis of exemption accorded to the original exemptee.
The Writ Petitions No. 11976 & 11978 of 1994 have been filed by the petitioners to whom the relevant plots were duly transferred by Muhammad Hussain under intimation to the Respondent Authority and to whom formal letters of transfer had been issued by the Respondent Authority. They have, thus, maintained that the respondent had no lawful authority to refuse to entertain or sanction the building plans submitted by them.
The Writ Petition No. 11982/94 has been filed by Muhammad Hussain himself. The claim submitted by him is that on the strength of the exemption, he entered into sale agreements regarding 30 plots but the impugned order has upset the process of their transfer to the vendees. Thus, besides seeking declaration against the validity of the impugned order, he has claimed that the respondent LD A is under an obligation to transfer the said 30 plots in favour of the vendees subject to the performance of the sale agreements.
8. The reply submitted by the respondents virutally amounts to the admission of the facts stated in the petitions. As to the impugned order, the only justification given by the respondent LDA. Is that there were certain complaints which had to be sorted out.
Thus, the facts relating to the acquisition of land, exemption of plots in favour of Muhammad Hussain, the allocation and transfer of exemption plots in favour of the exmptee, his right to alienate the exempted plots and the cancellation of the plots without notice to the original exemptee or his transferees are not disputed in any sense of the matter. A perusal of the record shows that the whole process moved ahead smoothly in a normal manner in accordance with law as well as the rules, regulations and the procedure prescribed by the respondent L.DA.
9. The respondents had not only allotted plots to Muhammad Hussain but also recognized the alienation of few of them to the third parties. It was not Muhammad Hussain alone who had vested rights in those plots but there were certain other transferees also who in due course and under a valid process matured similar rights in the disputed plots. In these circumstances, an oppressive jurisdiction for the withdrawal of ain earlier order of allotment or allocation of plots could be exercised by the LDA only on the terms and conditions stipulated in the order. In any case no such withdrawl could be directed without notice to the exemptee or the persons to whom he had transferred the plots with the concurrence of the LDA.
10. A perusal of the allotment /Exemption Letter order shows that the Exemption was liable to the withdrawn only in case of defective title of the exemptee or his failure to comply with the conditions regarding the payment of various charges, construction of building over the plots etc. Except for such reasons there was not even a notional right with LDA to interfere into the proprietary rights of the exemptee or transferee of the exemptee. Admittedly, there has been no violation of any terms and conditions of exemption either on the part of Muhammad Hussain or his transferees. So far as the allocation of specific plots in pursuance of allotment is concerned that too could not be changed at a belated stage when the ownership had shifted to the third parties.
11. The proposal for cancellation of the plots was prepared by respondent No.2 at the back of the petitioners or their predecessor-in-interest without affording them any opportunity of being heard.
Again, the proposal was also approved by respondent No. 1 in the absence of the affected parties.
It was obviously violative of the principles of natural justice as well as the requirements oflaiw.
12. On the relevant date when the impugned order was passed, not only the exemption rights already stood acquired by Muhammad Hussain but the plots falling to his share had also been specified and allocated to him. The power to cancel or modify the allocation of exempted plots can be exercised only within the limits of the provisions conferring such powers. In the present case, there was no law under which cancellation of vested rights could be warranted. The power of receding under the principle of locus Poenitentiae was not at all available to the respondents at the time of passing the impugned order. This power is available only before a decisive step has been taken. In this case, the exemption had been approved long ago. After the compliance of consequential requirements, the plots had been allocated and possession had been delivered to the exemptee who in tum entered into various transactions with a number of persons.
13. There can be no second opinion to the proposition that while the power to resdned an order is available such power does not include the authority to take away validity acquired rights. As laid down in Shahbaz Vs. Crown (PLD 1956 FC 46) the power under section 21 of the General Clauses Act, 1897 can be exercised only if the order sought to be recalled had not been carried into effect. Since the allocation in question had become operative in all respects, it could not be withdrawn or cancelled except for the reasons set out in the order itself.
14. It is evident from the above that the impugned proposal dated20.9.1994 was processed and approved without any justification on fact or law. Mr. Manzar Hayat, Director Land Development respondent No. 2 formulated a proposal which could not only pave the way for an endless chain of litigation between the parties but could also bring financial ruin to their threshold also. Before suggesting such drastic measures he did not feel appropriate to put proper justification for the same. Director General, LDA respondent No. 1 sitting at the helm of the affairs also failed to apply mind to the issue and accorded the approval in an absolutely mechanical manner without realising the consequences. This shows the bureasucratic indifference and cruel apathy towards the public grievances. The developments that had taken place in this case after 6.5.1994 were duly borne out by the record but nobody took the slightest pain of looking into the facts patentlly visible on that record. Mere receipt of a complaint or complaints could hardly justify the reopening and upsetting of a past and closed transaction to the detriment of a number of persons without holding eyen a preliminary probe. The alleged complaint or controversy ought to have been sorted out before causing a blow to the exempted owner and his successors-in-interest. The Director General , LJDA. And Director Land Development in their wisdom, however, preferred to put the cart before the horse. The leisure with which they dealt with the matter is highly deplorable.
In view of the above, the writ petitions are accepted with costs. The impugned orders for the withdrawal of allocation of plots passed by Director General, L.D A. On the proposal of Director Land Development and conveyed to Muhammad Hussain exemptee owner vide letter No. LDA-DDE(A)
SZR/SP- 43/5695 dated 2.10.1994 are declared to be illegal, inoperative and without any lawful authority. Consequently, the respective claims of the petitioners as embodied in their petitions shall be dealt with in accordance with law the rules and procedure prescribed by the Respondent Authority.