This judgment shall dispose of following three connected appeals as they arise out of the same judgment and decree:
(1) R.S.A. No.938-79 titled A.M. Kamal etc. v. Lahore Improvement Trust.
(2) R.S.A. No.974-79 titled Abdul Wajid etc. v. Lahore Improvement Trust.
(3) R.S.A. No.56-80 titled Sajjad Hussain v. A.M. Kamal etc.
2. Sajjad Hussain, appellant in (R.S.A. No.56/80) and his father Pir Abdul Wahid deceased predecessor-in-interest of the appellants in two connected appeals are refugees from East Punjab where they had left considerable immovable property including the carpet manufacturing and cloth weaving factories. On their migration, to Pakistan, building No.E/546 situate inside Shahalmi Gate, Lahore, was allotted in the name of Sajjad Hussain, appellant (respondent No.2 in R.S.A. 938- 79) wherein he alongwith his father started their business of cloth weaving and carpet manufacturing which building was thereafter demolished by the Military authorities in the year 1948. Loss suffered by them was assessed as Rs.2,500 payable by the Government.
3. Subsequently, building No.E/547(1 to 17) situate inside Shahalmi Gate, Lahore is alleged to have been allotted to Sajjad Hussain, respondent No.2, whereupon he alongwith his father raised some construction for the purpose of their residence and a factory. Later on, in exercise of powers under section 3 of the Punjab Development of Damaged Areas Ordinance, 1948, the Government of Punjab, declared the area situate inside Shahalmi Gate/Pari Mahal as a damaged area, wherein above-referred premises are also situate, under sections 4 and 5 of the Ordinance. L.I.T. Proposed and published a development Scheme for the said area on 2-2-1949 (Exh.D/2). Objections were called from the general public Muhammad Hussain, deceased, respondent No.3, who is presently represented by his L.Rs also filed the objections against the proposed scheme. All the objections were considered and rejected vide order dated 5-3-1949 Exh. D/3 and the Scheme was sanctioned and forwarded to the Government which was sanctioned by the Government vide Notification dated 28th August, 1957, published in the official Gazatte of 6th September, 1957 (Exh.P/26). The sanctioned Scheme is reproduced as under:--- OFFICE OF THE LAHORE IMPROVEMENT TRUS1, LAHORE Copy of the Letter No.F-16(23)/57-P-II, dated, 16th May, 1957 from the Deputy Secy., Ministry and Rehabilitation, Karachi to the Secretary to Government of West Pakistan, Refugees and Rehabilitation Department.
Subject:ACQUISITION OF EVACUEE LAND WITHIN THE DAMAGED AREA DEVELOPMENT SCHEME OF THE LAHORE IMPROVEMENT TRUST With reference to yours Letter No. 127-R&R-IR-57 dated the 30th January, 1957, I am directed to say that in exercise of the powers conferred by section 16(3)(b) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) the Central Government is pleased to accord approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act, 1894 as modified by Punjab Development of Damaged Areas Act, 1952 of evacuee Lands as per details shown in the attached schedule situated in Lahore 14 Development Scheme on the following conditions:--- (I)That in the case of all plots above 16 Kanals in area 25 % of the land made available for construction of buildings in the scheme would be resumed for allotment of displaced persons who have registered claims for Urban Immovable property under the Registration of Claims ' (Displaced Persons) Act, 1956.
(II) That fair compensation for the acquired property will be assessed in accordance with the principles laid down in the said Act in consultation with the Custodian, Evacuee Property, Lahore and paid to that officer for credit to the evacuee owners account.
(III) The refugees if any settled thereon will be provided with alternative land.
No.4102-B&R-IR-57 Dated 30th/Ist May, June, 1957.
1. The Secretary to Government of West Pakistan, Social Welfare and Local Government Departments in continuation of this department endorsement No. 127-B&R-IR-57 dated 30-1-1957.
2'. The Deputy Rehabilitation Commissioner, Lahore. The compensation money should be credited under sub-head sale proceeds of immovable property and debts due to evacuee etc. 10% of compensation assessed should be adjusted on account of administrational charges. This amount should be credited to the head 'XLVI-A. Miscellaneous other fees and forfeitures (q) fees for administration of Evacuee Estate. Under intimation to the Accounts Officer, Rehabilitation Department, Poonch House, Lahore.
3. The Custodian of Evacuee Property, Lahore. The question of assessment of the compensation for the acquired property may please be taken up directe with the acquiring department.
4. The Secretary (U) to the Rehabilitation Commissioner, West Pakistan, Lahore.
5. The Commissioner, Lahore Division, Lahore.
(Sd.) Under Secretary, for Secretary to Government of Pakistan Refugees and Rehabilitation Department.
4. The Central Government of Pakistan, Refugees and Rehabilitation Department, vide Letter No.F- 16(23)/57-P-II dated 16th May, 1957 (Exh. P/9), granted permission to acquire the evacuee land which was included in the scheme in accord with the provision of Land Acquisition Act, 1894, as modified by Punjab Development Damaged Areas Act, 1952, which letter is reproduced as under:-- - (To be published in West Pakistan Gazette, Part I-A).
WEST PAKISTAN GOVERNMENT SOCIAL WELFARE AND LOCAL GOVERNMENT DEPARTMENT TOWN IMPROVEMENT The 28th August, 1957 No.2727-C&T-57.--In pursuance of the provisions of the subsection (3) of section 3 or section 6 of the Punjab Development of Damaged Areas Act, 1952, it is hereby noted that the Government of West Pakistan have sanctioned the scheme framed by the Lahore Improvement Trust under section 4 of the West Pakistan Damaged Areas (Development) Ordinance No.5 of 1948, for an area measuring 37.68 acres approximately bounded by Kutcha Tobian. Dabbi Bazaar and Kasera Bazaar on the North, Kucha Soodan, Kutcha Hawagaran, Bazaar Mochi Gate, Kutcha Chabak Sewaran and a depth of approximately 90' to the East of Gali Wanwattan on the East, city Sewar on the south and Kutcha Dogran, Matanwali Gali, Kucha Telian on the West, Lahore. More particularly shown on a map attached hereto.
2. Area of boundaries.--The land comprised in the scheme has an area ofapproximately 37.68 acres. It is bounded as follows: --- North ------------------Kucha Tobian, Dabbi Bazaar and Kasera Bazaar.
East------------Kucha Soodan, Kucha Hawagaran, Bazaar Mochi Gate, Kucha Chabak Sawaran and a depth of approximately 90' on the east of Gali Wanwattan.
South City Sewar: West ------------Kucha Dogran, Matanwali Gali, Kutcha Telian.
3. Acquisition of land.--The Lahore Improvement Trust in hereby authorised to acquire either under the Punjab Development of Damaged Areas Act, 1952, or by purchase, lease, exchange or otherwise the whole or any part of the land or any interest in the land comprised in the area of the scheme as described in clause 1, subject to the condition that the evacuee property involved in this scheme shall be acquired in accordance with the instructions of the Central Government contained in their Letter No.F. 16(23/57) P.II dated the 16th May, 1957, a copy of which was sent to the Chairman, Lahore Improvement Trust, Lahore, with West Pakistan Government endorsement No.2611. C&T-2-15-56, dated the 18th June, 1957.
4. Contents of the Scheme.--The Scheme provide for the following:---
(1) The retention, letting on hire, lease, sale, exchange or disposal otherwise of any land vested in or acquired by the Improvement Trust.
(2) The demolition of buildings or portions of buildings which are unfit for the purpose for which they are intended and which obstruct light or air project beyond the building line laid out under the scheme.
(3) The relaying out of any land comprised in the scheme, and the redistribution of sites belonging to owners or property comprised in the scheme.
(4) The laying out and alteration of streets.
(5) Open spaces in the interests of the residents of any locality comprised in the scheme or any adjoining locality and the enlargement or alteration of existing open spaces.
(6) The raising, lowering, or reclamation of any land vested in or to be acquired by the Improvement Trust for the purpose of the scheme and the reclamation or reservation of land for the production of fruit, vegetables, fuel, fodder or for any other purpose for the residents of the local area.
(7) The draining, water supply and lighting of streets altered or re-- constructed.
(8) The system of drainage and sewers for the improvement of ill drains and insanitary locality.
(9) The doing of all acts intended to promote the health of residents of the area comprised in the scheme, including the conservation and preservation and from injury or pollution of river and other sources and means of water supply.
(10) The demolition of existing buildings and the erection and re-erection of buildings by the Improvement Trust or by the owners or other persons authorised by the Improvement Trust or by the Improvement Trust, in the event of the default by the owners or such persons.
(11) The advance to the owners of land comprised within the scheme upon such terms and such conditions as to interest and sinking fund otherwise as may be prescribed under the scheme, of the whole or part of the capital requisite for the erection of building in accordance with the scheme.
(12) The provision of facilities for communication.
(13) All other matters which the Provincial Government may deem necessary for promoting the general efficiency of the scheme or for improving the locality comprised in the scheme.
5. Object of the Scheme.--(1) To provide well-laid out and orderly development having streets of adequate width and satisfactory sitting and open spaces and other amenities sufficient for the area to be developed. .
(2) To set up a standard for positive development consistent with the standard laid down by the Trust in regulative Town Planning Scheme encouraging thereby the individual developer to improve his standard.
(3) The layout of the area shall be in accordance with Drawing D.S.404.B/4-51 prepared by the Town Planner. The layout allocates 123 Kanals for plots, 117 Kanals for roads, 112 Kanals for open spaces and 13 Kanals under existing building and mosque.
(4) The operations in this area will be controlled by the schedule of clause given in Appendix ' A' attached.
APPENDIX 'A'
1. CONTROL OF BUILDING OPERATIONS.
Type of buildings which may be erected:--
(a) The type of buildings permitted shall be shops on the ground floor and residential buildings above and their use for any other purposes is prohibited.
(b) For the purpose of this scheme:--- .
(i) Shop---Means a building other than a petrol filling station designed for use for the purpose of carrying on retail trade and shall include shops with residential accommodation above;
(ii) Residential building---Means a building designed for use for human habitation for more than one family and shall include use as offices and business purposes other than a shop.
2. RESERVATION OF LANDS.
The several areas of land specified in column (i) of the following table shall be reserved for the use for the respective purposes indicated in column (ii) of the table---.
TABLE 12 Indication on the drawing of landUse for which lands are reserved. reserved.
Coloured Red.Streets (other than public streets) and widening of existing streets.
Coloured Green.Open spaces on which building Operations arepermanently prohibited.
3. NUMBER OF BUILDINGS ON EACH SITE No plot shall be of a size less than that shown on Drawing No.D.S./404-P/4-51 and not more than one building shall be erected on any one plot but, two or more plots may be combined for the purposes of the erection of one building.
4. USE OF LAND.
The area shall not be used for any purpose even though not involving the re-erection of building inconsistent with the scheme.
5. PROPORTION OF SITE WHICH MAYBE OCCUPIED BY BUILDINGS Not more than 2/3rd of the total area of the plot shall be covered by building at each floor.
Notwithstanding this the arcade in front of the shops shall be considered as open, and the remaining area to make the required one---third open space shall be provided in the form of a courtyard at the rear of the building and shall be independently accessible for cleaning purposes.
6. ARCADE IN FRONT OF SHOPS 10' wide arcade to be used as footpath for the pedestrians shall be constructed in front of shops throughout and no building obstruction of any kind shall be allowed within the arcade. It shall conform to the design of the arcade approved by the Trust.
7. HEIGHT OF BUILDINGS Height of buildings measured from the crown of street on which it abuts and of such storeys shall be as follows:--- width Max. Plinth Ground 1st2nd3rdBarsatiParapet streetheightfloorfloor floor floorwall on allowedthe top most.
20'&25'35'2'18'12'3 30'45'2'18'12'3'
40'&50'57'2'18'.12'12'10'3'
80'60'2'18'12'12'12'10' 3'
Notwithstanding the above height restrictions, the following constructions shall be allowed:---
(a) a balcony at the rear of a shop at height of not less than 10' from the floor level of shop and shall not cover more than 1/3rd the floor area of the shop;
(b) staircase roofing at the top floor of height not exceeding 8 feet above the roof level of the topmost storey, but not Barsati.
NOTE.--The word Barsati shall mean a room or rooms, including a latrine or latrines, for occasional use, but, it does not include a sitting room or rooms used for ordinary residential purposes. The height from floor to ceiling of such a Barsati shall not exceed 10' and shall not cover more than one- half of the total roof area and shall be constructed on the side of the building towards road way.
8. PROJECTIONS FROM THE FACE OF BUILDINGS
(a) No thara, steps, bay window, porch or any other projection shall be constructed so as to project over on or under any street existing or proposed.
(b) Nothing contained in the clause shall prevent the projection of (1) a window sill for a distance of not more than 2-1/4' at a height of not less than 2'---6' above the plinth and (ii) a sunshade for not more than a distance of 1'---3' at a height of not less than 7' clear above plinth.
(c) Notwithstanding what is contained in clause No.8, an uncovered balcony projecting not more than 3' may, be constructed at the rear of this building towards the courtyard.
9. SIZE OF ROOMS The minimum floor area of a room which might be used for human habitation shall be 100 s.Ft.
10. CONTROL OF DESIGN AND ELEVATION.
The design and elevation of building shall conform to the design of elevation approved by the Trust. The material used in the constructions, their texture, colour and finishing shall also comply with the specifications approved by the Trust. , (Sd.)
(SHER BAHADUR KHAN), DEPUTY SECRETARY TO GOVERNMENT WEST PAKISTAN, SOCIAL WELFARE AND LOCAL GOVERNMENT, DEPARTMENT.
The premises in question, hence, were acquired by the Collector for the L.I.T. As per provisions of the statutes referred to above.
5. Another development which had taken place during the interregnum is that the property now in dispute between the parties was put to open auction by the L.I.T. And the tenders were filed by various persons including Muhammad Hussain, deceased, respondent No.3, on 14-11-1953 (Exh.P-8) who after acceptance of his highest bid of Rs.1,27,000 on 14-12-1953 (Exh.P-12) deposited the offered price. On 11-7-1995, the notice (Exh.P-27) was issued to the allottees of the premises referred to shove for taking over the possession of the suit property whereafter possession of the lower portion was taken, however, the possession of upper portion could not be taken from the allottees. On 25- 8-1955, M/s. Pir Abdul Wahid and his sons A.M.Kamal and Abdul Rashid impleading Sajjad Hussain as defendant No.2, filed a suit for grant of decree to; permanent injunction, restraining the L.I.T., respondent No.1, from ejecting them from building No.E/547 (1 to 17), Parimahal, Inside Shahalmi Gate, Lahore raising following pleas therein:---
(a) That the property in suit could not be acquired by the defendant or by any other authority. The so-called acquisition if any is void, illegal and without jurisdiction.
(b) That no permission of the Central Government or of any other authority has been obtained for the acquisition of the disputed property.
(c) That the procedure necessary for acquisition has not been complied with. In fact even the fact of acquisition has not been notified.
(d) That the scheme under which the disputed house has been acquired has not been sanctioned by the Provincial Government and for this reason too the acquisition is void.
(e) The defendant No. l could not sell the property in suit to any body else in preference to the plaintiffs.
(f) The defendant No. l was bound to give the first opportunity of purchase to the plaintiffs which he failed to do.
Right of prior purchase has also been claimed in the plaint on the basis of their claim to the effect that the property was agreed to be sold to them by the Chairman of the Trust. The averments regarding the abovementioned claim are contained in paragraphs Nos.6 and 7 of the plaint, which are reproduced as under:--- "6. That the plaintiff represented to the Punjab Government through the Hon'ble Chief Minister, Punjab on which he received a communication from the Deputy Rehabilitation Officer, walled City Lahore assuring the plaintiffs that as and when the above property is sold the plaintiffs would be given the preferential right to purchase the same.
7. That the plaintiffs applied to the Chairman of the defendant Trust for purchase of this property with the result that the sum of Rs.2,500 mentioned in para. No.3 was treated as an advance but subsequently it came to light that the defendant No. l had sold the above property to ,some other person. "
6. The suit has been contested by defendants Nos. l and 3, whereas Sajjad Hussain, defendant No.2, admitted the same. On the basis of the pleadings of the parties, learned trial Court framed the following issues:--- (1)Whether the acquisition of the suit property by defendant No. l is illegal and void? O.P.P.
(2) Whether the defendant No. l could not sell the suit property to any body except the plaintiffs? O.
P. P.
(3) Whether plaintiffs have served the defendant No. l with a notice under section 98 of the Punjab Town Improvement Act, 1922? O.P.P.
(4) Whether the suit is maintainable? O. P. P.
(5) Whether the suit is properly valued? Q. P. P.
(6) Whether this suit is barred by section 31 of the Punjab Development of Damaged Areas Act, 1952? O.P.P.
(6-A) Whether the third defendant has any right in the disputed property, if so, to what extent?
O.P.D.3.
(6-B) Whether the defendant No. l was competent to auction the property in suit in 1953 to defendant No.3? O.P.D.
(7) Relief.
7. In support of their case, both the parties led oral as well as documentary evidence. Plaintiffs examined 19 witnesses including the plaintiff No. l himself who appeared as P.W. 19, whereas the general attorney of the defendant made a statement tendering into evidence various documents and Mian Alauddin appeared as the sole D.W.
8. Muhammad Aslam Khan P.W.1, Accountant of the office of the Chief Settlement Commissioner, deposed that he did not have the detailed description of property E/547, however the same has been acquired. According to the witness, no compensation has been paid for acquisition of the said property. Muhammad Saeed P.W.2, is the Record Keeper of the Office of Land Acquisition Collector and deposed that he could not produce the record. Muhammad Ashraf P.W.3, Clerk of Urban Branch of the Office of Chief Settlement Commissioner, deposed that on 3-6-1972 the Secretary Local Government and Social Welfare Government of Punjab had demanded a report in reference to the property No.E/547 and that the certified copy of the reply whereto is Exh.P-I. Wali Pasha P.W.4, Record Keeper of L.I-T., produced certified copy of show-cause notice issued to defendant No.3 as Exh.P-5. He, however, admitted that this property was sold by defendant No. 1. In favour of Muhammad Hussain defendant. Sultan Ahmad, P.W.5, Deputy Settlement Commissioner Centre II, deposed that a temporary order of allotment of property No.E/548 was made in favour of defendant No.2 on 24-3-1960 and it bears the signatures of Khan Bahadur Muhammad Yusuf, Rehabilitation Officei. He also produced a copy of the order dated 17-8-1948 (Exh.P-3) whereby Sajiad Hussain defendant No.2 was permitted to complete the building at his own cost which document bears his signatures. He, however, has admitted that he was not aware as to what were the contents of the application filed by the defendant No.2. S.M. Hamid All P.W.6, Advocate, deposed that from 1953 to 1956 he has been working as Deputy Rehabilitation Officer of Walled City and that Exh. P-3 bears his signatures. According to the witness as per instructions of the Government an authorised occupant of the evacuee property was allowed to construct the building thereon and an unauthorised occupant was to be ejected. During the cross-examination, he has stated that he is not in a position to tell as to what portion of the suit property was allowed to be reconstructed vide order Exh.P-3 and how many persons were the allottees thereof. Muhammad Sadiq p.W.7, Section Officer, Government of the Punjab, deposed that in relation to Property No.E/547 (A & D) an enquiry was pending with him against defendant No.3 to get him prevented from collecting rent thereof and in this behalf letter dated 9-4-1972 Exh.P-4 was issued by the Secretary, Local Government. On being cross-examined he told that enquiry was initiated upon the application of M/s. Muhammad Yusuf, Muhammad Jameel and Abdul Hameed on 22-2-1972. Ghulam Muhammad P.W.8, Ahmad to Land Acquisition Collector, L.I.T., has deposed that building No.E/547, Parimahal was not acquired. In cross-examination, he shows his ignorance about the sale of the property by L.I.T. Ashiful Haque, P.W.9, Project Director, WAPDA, who had been Executive Engineer, Rang Mahal Division proved a letter Exh.P-6 pertaining to the disconnection of installations in the nature of factories in the residential areas and also deposed that he had visited the Pari Mahal building in this connection. Saiful Rehman, Copy Clerk of the L.I.T., has produced the certified copy of the office noting Exh.P-7 whereby Secretary of the Trust on 9-5-1955 reported to the Chair, L.I.T., that their position in the case was very weak. He also produced a copy of tender filed by the defendant No.3 as Exh.P-8 and its conditions as Exh.P8/A, copy of letter dated 16-5-1957 Exh:P-9 granting permission to L.I.T. To acquire the land in the damaged, areas of the Development Schemes framed by the L.I.T. Besides other documents, he produced Exh.P9/A to Exh.P-10, copy of Resolution No.45 dated 30-11-1953 whereby approval was accorded to the highest bid of defendant No. 3, Exh.P-11 copy of letter dated 29-12-1958 whereby Secretary L.I.T. Required defendant No.3 to arrange for the payment of Rs.63,500,00, Exh.P-12 and P-13, the copies of letter dated 22-7-1959 and 24-4-1974 respectively, Exh.P-14 copy of application form of the plaintiff, Exh.P-15 and Exh.P-16 copy of a letter informing plaintiffs that application dated 26-3-1952 and letter from Secretary, L.I.T.
Dated 26-12-1969 are not available on the file, therefore, copies cannot be supplied, and a copy of policy letter dated 26-12-1969 Exh.P-17, regarding the allottment/sale of plot in Shahalmi Gate Scheme, Lahore. Khadim Hussain, p.W.12, deposed that he was a refugee from town Shahbaz District Kamal and has migrated to Pakistan in 1947,. Whereafter he settled at Lhotta Pari Mahal No.E/546 which house collapsed in 1948 after 2/3 months whereafter he is allotted Block A of E/547 which allotment was made by Zafarul Ahsan and that the plaintiff was allotted the same house in July, 1948, whereafter he was tried to be ejected by the L.I.T. In the year 1952 and was ultimately turned out in the year 1959. He claimed that he had accompanied plaintiff on 26-3-1952 to meet Zafarul Ahsan who directed him to apply in writing, hence, an application was filed by him. In cross-examination, he however, states that no allotment of. The questioned building was made and that defendant No.1 had got vacated the building by saying that it was acquired by L.I.T.
Inayatullah P.W. 13, Clerk of the office of the Deputy Director, Industries however, deposed that there was no application. Sultan Humayun, P.W. 14, deposed that on 14-1-1952 he had signed a letter No.D/E-74, dated 14-1-1952 on the subject of allotment of Pari Mahal with reference to the application of plaintiffs addressed to the Chief Minister, Punjab, Lahore, whereupon the applicant was informed that the building in question will be sold out by the L.I.T. And if they will not be able to purchase it, alternative accommodation will be provided in case of their ejectment. Rass Masud P.W. 15, who at the relevant time was Assistant Director, Industries, deposed that he recognised the signatures of Muhammad Abdullah, Deputy Director Industries on the document Exh.P-19. Abdul Hafeez, P.W. 17, Ex.-Deputy Settlement Commissioner, deposed that in January, 1948, he was the A.R.O. (Walled City) and Shahalmi area was within his jurisdiction and that the suit building was incomplete at that time. According to him, the plaintiffs were told by Zafarul Ahsan, Chairman, L.I.T., that the possession will not be taken by him. Abdul Wasey Khan P.W. 18, an employee of the Settlement Department in the Record Branch, has produced as Exh.P-20, the copy of the plaintiff's application Exh.P-20/A to the D.S.C. Enquiring from him as to whether Property No.E/547 was evacuee property, whereupon it was reported that as per entry in the Survey Register it is an evacuee property Exh.P--20/A. Shabbir Hussain P.W.19, Writ Clerk of the Office of the Chief Settlement Commissioner produced a certified copy of the allotment order Exh.P-21 in favour of defendant No. 2. Plaintiff No. l has appeared as P. W. 20 for himself and also as special attorney for other plaintiffs and has corroborated the version in the plaint. During the cross-examination, he has admitted that the building No.E/546 was demolished by defendant No. l with the aid of Military Police. He stated that he raised no objection to the auction as the entire story was done in a concealed manner. He has further stated that after receiving information from the Settlement Department that the L.I.T: would transfer the property, he moved an application on 26-3-1952- for transfer thereof and it was upon second application that Zafarul Ahsan had written an order that when the property is acquired it would be sold to the plaintiffs (neither the application nor the order has been produced in evidence). He denied that defendant No. l had informed the plaintiffs that the property in dispute shall be disposed of in public auction. He stated that property in his possession was not purchased by defendant No.3 and the suit did not pertain to that property and plaintiffs did not challenge the auction made in his favour. He was unable to tell as to what subject-matter sub--para. 9-E of his plaint refers to. Above-referred paragraph is reproduced as under:--- "e. The defendant No. l was bound to give the first opportunity of purchase to the plaintiffs which he failed to do."
9. In defence, the general attorney of defendant has tendered in evidence the copy of the notice issued under section 5 of the Punjab Development of Damaged Areas Act, 1952, as Exh.D-I, copy of the Resolution No.4 dated 2-2-1949 as Exh.D-2, copy of the Resolution No.58 dated 5-3-1949, as Exh.D-3, copy of the report of Patwari LAC dated 6-8-1951 as Exh.D-4, copy of the report of Patwari dated 10-11-1949 as Ex.D-5, copy of the report of Patwari etc,, dated 12-1-1950 as Exh.D6, copy of the report of Qanungo Muhammad Siddiq as Exh.D-7, copy of the list of record of house-tax for the years 1951-52 as Exh.D-8, and other relevant documents Exh.D-9 to Exh.D-20, pertaining to the grant of approval by the Central Government and also purchase of the property by the defendant No.3 in open auction. The plaintiffs have further produced in evidence documents Exh.P-22 to Exh.P-35.
10. After hearing of the arguments in the case and scanning of the whole evidence documentary as well as. Oral, learned trial Court vide judgment and decree dated 2-6-1975, decided all the issues against the plaintiffs and dismissed the suit. Aggrieved of this judgment and decree, three independent appeals have been filed against the aforementioned judgment and decree by the plaintiffs as well as Sajjad Hussain, defendant No.2, before District Court which have been dismissed by the learned Additional District Judge, Lahore vide judgment and decree dated 7-6- 1979, hence, three appeals arising out of the said judgment and decree have been filed before this Court, which are being disposed of by this consolidated judgment.
11. M/s. Kh. Habibullah and M. Iqbal, Advocates, have appeared on behalf of the appellants in this appeal whereas M/s. Gulzar Ahmad Pirzada, Advocate and Muhammad Iqbal, Advocate have appeared on behalf of the appellants in other two appeals. M/s. A. Karim Malik, Advocate assisted by Mian Iqbal Hussain Kalanuri, Advocate have appeared on behalf of legal heirs of Muhammad Hussain (respondent No.3).
12. Kh. Habibullah, Advocate, learned counsel for the appellants conceding that the area wherein suit property is situated had been declared as a damaged areas by the Punjab Government and has raised the following contentions:---
(1) That the disputed property being admittedly evacuee in nature, could not have been acquired under provincial statutes by the provincial authorities.
(2) That the L.I.T. Had no lawful authority to acquire property in question even if it is assumed that the property could be acquired by the Provincial Government.
(3) That the L.I.T. Could get the land acquired only for the purpose of a development Scheme duly framed by it could not be acquired and utilised by it for the purpose of transfer to an individual by sale as has been done in this case, therefore, the said proceedings are a fraud on the statute, hence, void ab initio.
(4) That neither the scheme was proved nor an approval was granted by the Central Government for acquisition of the property in dispute which is admittedly an evacuee in nature, therefore the whole proceedings and the ultimate sale of the premises in question are illegal.
(5) That while acquiring the evacuee property, necessary procedure was not followed inasmuch no provision for payment of compensation has been kept in the Scheme nor any compensation has been determined by the Collector, therefore, impugned acquisition proceedings are not lawful.
(6) That the appellant being a displaced person from India having a claim of 44 lacs has been displaced from the premises in question which have been validly allotted to them without giving them any alternate property, therefore, the very object of the acquisition proceedings being contrary to the settlement refugees for whose benefit, the property in question vested in the custodian, are illegal and without a lawful authority;
(7) That no notice was necessary to be issued before filing of the suit; and that the Civil Court has the jurisdiction to try the suit, therefore, findings rendered by two Courts below on all the issues and as such the impugned judgments and decree are illegal and hence are liable to be set aside.
13. Elaborating his arguments, learned counsel has referred to the various provisions of Land Acquisition Act. 1894, Punjab Damaged Areas Development Act, 1948, Punjab Development of Damaged Areas Act, 1952, Pakistan Administration of Evacuee Property Ordinance 1948, Pakistan Administration of Evacuee Property Act, 1957 as well as Town Improvement Act, 1922, the documents Exhs.P-9, P-26, besides other documentary, as well as the oral evidence and has contended that the disputed property being evacuee in nature, vested in the custodian who was the sole authority to deal with it including disposal thereof and that too subject to the rights of the allottees and as the same is governed by the Federal Laws, neither the Provincial Government nor the L.I.T. Had any lawful authority to acquire the same. He has made a special reference to the provisions of sections 6, 8, 9, 10, 12, 14, 20 and 34 of the Ordinance No.XV of 1949 in this behalf; and that the development scheme having been sanctioned by the Government in the year 1957, disposal of the property which was subject matter of the scheme by way of open auction was not permissible under the law as the premises in question had not vested in the L.I.T. At the time of impugned open auction and sale of property in favour of Muhammad Hussain, defendant. .
14. Mr. Gulzar Ahmad Pirzada, Advocate, learned counsel for the appellants in R.S.As. Nos.56 of 1980 and 974 of 1979, has adopted the arguments addressed by Kh. Habibullah, learned counsel for the appellant in R.S.A. No.938 of 1979 and has placed on record a copy of the judgment dated Z6-1 1- 1974 rendered by Single Judge of this Court to Writ Petition No.1240-64 in order to contend the areas which have not been acquired could not be made a subject-matter of a development scheme of the provisions of Punjab Development Damaged Areas Act, 1952. Therefore, the suit was liable to be decreed. M.Iqbal, Advocate has also adopted the arguments addressed by the two other learned counsel for the appellants.
15. Mr. A. Karim Malik, Advocate, learned counsel for the respondents has vehemently contended that the appeal was admitted to a regular hearing to decide the limited question of fact i.e. As to whether the approval for acquiring the evacuee property was granted by the Central Government or not? And therefore this is the only question in relation thereto, arguments can be addressed from appellant side and other points being now raised are not available to the appellants, hence, cannot be allowed to be raised at this stage; that approval to acquire evacuee property falling within the development scheme in question was granted by the Central Government, vide document Exh.P-9; that scheme duly prepared by the L.I.T. Had been sanctioned by the Provincial Government (Exh.P-26), therefore, cannot be challenged by the plaintiffs who have absolutely no locus standi to challenge the same; that the acquisition proceedings are not vitiated merely on the ground that the compensation has not been determined in the Scheme; that the plaintiffs themselves having admitted in the plaint that they wanted to purchase the property in question have admitted the legality and vires of the acquisition proceedings as well as title of the L.I.T. To deal with the property in dispute and hence are estopped to challenge the title and authority of the Trust to dispose of the property through open auction; that the disputed property having been purchased by the respondent in open auction wherein the appellants could also have participated, they having failed to participate therein, have absolutely no locus standi to challenge the legality of auction/sale in favour of the respondent, being the highest bidder; that the disputed property admittedly being subject-matter of the proposed development scheme could have been transferred even before the grant of sanction thereof by the Government which transfer shall be deemed to be subject to the grant of sanction and once the sanction had been granted, the deficiency, if any, shall stand cured, therefore, the impugned judgments and decrees are unexceptionable and are liable to be set aside. In support of his contentions, learned counsel has placed reliance on the following cases:---
(1) Case of Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another (PLD 1963 (W.P.)
Lah. 499).
(2) Case of Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others (PLD 1971 SC 811).
(3) Case of Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) and 8 others (PLD 1982 Lahore 250).
16. I have considered the arguments addressed at the bar and have perused the record. It stands established on record that the areas wherein the disputed evacuee property is situated had been declared as damaged area by the competent Government. This fact stands admitted by both the sides. It also stands established on record by the document Exh.P-9 that the Central Government had directed the acquisition of the evacuee land falling within the scheme area as framed and sanctioned by the L.I.T. For the damaged area of inside Shahalmi Gate, Lahore which scheme had been validly prepared by the L.I.T. And forwarded to the Provincial Government for grant of sanction. It also stands established by Exh.P-26 that the scheme was sanctioned by the Provincial Government and as such the property in dispute stood vested in the L.I.T. Which had been disposed it of after the proposed scheme has been set in motion and before the grant of sanction thereof, in open auction. It is well-established a legal proposition that the Local Authority L.I.T. Is authorised to deal with the property which is subject-matter of the scheme, of course, subject to the grant of sanction of the scheme by the Provincial Government. The above proposition finds support from the law declared in case of "Administrator, City of Lahore v. Pt. Suraj Bhan" (AIR 1944 Lahore 19) in which case, LMC, had framed a scheme under section 192 of the Municipal Act, 1911, which had to be enforced subsequently. During the interregnum and owner of the property situated within the scheme area submitted a plan for grant of sanction to raise a building. This plan was rejected which was challenged before the Civil Court as being illegal and without a lawful authority on the ground that the scheme having not come into force as yet, the M.C. Had no lawful authority to reject the plan. It is held in this case that as the building scheme was already in contemplation and expected to be and was in fact put into force fairly soon thereafter the refusal of the administrator to sanction the building plan was justified. It has further been held in the said judgment that Municipal by-laws are a part of the law of the land and the building scheme sanctioned under section 192, Punjab Municipal Act, stands not on a dissimilar footing, since there are provisions of law which require that it should be enforced, therefore, validity of this scheme was not allowed to be challenged on that score alone. At page 20 of the report, it has been held as under:--- "Minimum area requirements are imposed for the purpose of preventing overcrowding, more particularly when there are already signs that overcrowding is about to take place and it is in the public interest that immediate steps should be taken to stop this. Mr. Mela Ram for the plaintiff has not been able to direct our attention to a single case in which the Courts have ever directed that something should be done contrary to the public interest. Municipal by-laws are a part of the law of the land and a building scheme sanctioned under section 192, Punjab Municipal Act, stands on a not dissimilar footing, since there are provisions of law which require that it should be enforced. It seems to us that such a discretionary remedy as an injunction cannot possibly be used for the purpose of going contrary to the law. Mr. Mela Ram can only suggest that possible some defect might be found with the Commissioner's scheme, but if that is so the defect should have been at once pleaded when the scheme was clearly put forward as a reason why an injunction should not be granted. The scheme must be taken for the purposes of this case to have been admitted to be valid.
To hold that an injunction cannot issue for the purpose of contravening the law, even though the refusal of the plaintiff's building plan may have been wrong at the time, does not mean that he is without remedy. It only means that the particular relief which he now seeks is no longer available.
Although it is hardly necessary for the purposes of the present decision, it seems advisable to deal with the finding of the trial Court to the effect that the requirements of a sanctioned building scheme cannot be made to apply to any land which has been purchased before the scheme comes into force, since solve such view seems to be becoming prevalent among the subordinate Courts. On the face of it this would mean that no building scheme could ever be enforced at all, and this cannot possibly have been the intention of the Legislature when making provisions for the enforcement of a building scheme. For these reasons we accept the appeal and dismiss the plaintiff's suit, but leave the parties to bear their own costs throughout. "
17. Above taken view in the aforementioned judgment was cited with approval in case Municipal Committee, Sialkot v. Muhammad Shafi (1985 CLC 50) wherein the question of validity of development scheme as framed by the Municipal Committee, Sialkot, came under discussion at page 1024, it has been held as under:--- "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 conformable to other contents of the subsection. Although the expression 'Scheme' has not been included among many things saved like appointment, rule, regulations, by- laws etc. Yet an all embracing phrase 'action taken under such enactment shall be deemed to have been ...Under the Ordinance' would cover it. In my view, these words were as pervading that they did not leave behind anything done under the repealed Act. "
18. In case of L.I.T., Lahore through its Chairman v. The Custodian, Evacuee Property (W.P.) Lahore and 4 others (PLD 1971 SC 811) where the L.I.T. Issued a notice under section 36 of the Punjab Town Improvement Act, 1922 to the owners whose lands were proposed to be included in a scheme for construction of a New Campus for University and two modern housing colonies. Part of the land comprised in the scheme belonged to evacuees. When the notices were issued the scheme had yet to be finalized by the Trust and had yet to be submitted to the Provincial Government for sanction under section 40 of Act IV of 1922. The validity of notices under section 36 of the Punjab Town Improvement Act was attacked on the ground that qua the evacuee land sanction of the Central Government under section 12 of Pakistan (Administration of Evacuee Property) Ordinance 1940 was necessary before the Trust could give notice under section 36 of Act IV of 1922 on the ground that the notice under the said section, created a defect in the title of the owners (Evacuee and Custodian of Evacuee Property as their Representative) and therefore, prior permission of the Central Government under section 12 of the Ordinance XV of 1949 was necessary and that the notice issued under section 36 of Act IV of 1922, was bad in law as it was a 'legal process' which under section 12(1) of Ordinance, XV of 1949, could not be issued in respect of evacuee property. It was held that notice is intra vires of the Town Improvement Act, 1922 and that the bar of provision of section 12, Ordinance XV of 1049 is not applicable in this case.
Similarly, the validity of the questioned scheme earlier came under discussion in Writ Petition No. 1144/11 of 1961, decided on 14-5-1963, reported as Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another (PLD 1963 (W.P) Lahore 499). Learned Single Judge of this Court after examining the various provisions of the relevant enactments and the Notification which have been referred to in the case in hand as well, the questioned scheme as well as acquisition proceedings were held to be lawful and was held that the transfer made by the Settlement Authorities regarding property E/547 situated at Pari Mahal, Shahalmi Gate, Lahore are entirely without lawful authority.
This judgment is applicable to the case in hand on all fours and finally clinches the controversy, meaning thereby that the, questioned acquisition proceedings as well as the scheme and hence disposal of the property is dispute by the L.I.T. Are lawful, hence, are not liable to be challenged by the plaintiffs hence, have rightly been upheld and the suit has rightly been dismissed.
19. Argument of the learned counsel for the appellants to the effect that the legality of the acquisition proceedings have not been challenged in Sh. Muhammad Sadiq's case reported as PLD 1963 Lahore 499 (supra), therefore, the issues in relating to the vires of the acquisition proceedings having not been raised and determined, the said precedent shall be of no avail to the respondents in this case which precedent even otherwise is a judgment in-personam, is misconceived. The judgment rendered in the above-referred case, decided a question of law, i.e. Legality of the sanctioned scheme in question in this Court and acquisition of land thereunder, hence, it is a judgment-in-rein and as such is binding upon the parties to this suit as well.
20. Examined the case from another angle, the plaintiffs are estopped to challenge the legality and vires of the acquisition proceedings held under the scheme for the reasons that it is their own case in the plaint itself that they had offered to purchase the property but it was not sold to them therefore they have accepted the right of the L.I.T. To dispose of the property, hence, cannot be allowed to approbate and reprobate and hence to deny the title of the L.I.T. In the property in dispute and subsequent disposal thereof in favour of the respondents.
21. In case of Mst. Rashda Parveen v. Deputy Settlement Commissioner (PLD 1982 Lahore 250) it has been held that if competent authority grants approval for acquisition of evacuee property, such property ceases to form part of compensation pool irrespective of fact whether compensation in lieu thereof has been determined or not, therefore, the plaintiffs have no cause of grievance to challenge the questioned proceedings/scheme/disposal of the property by the respondent No.1, therefore, I hold that findings of the trial Court on issues Nos. l and 2 are unexceptionable and hence are affirmed.
22. As regards the issue of notice and jurisdiction, they appear to have not correctly been decided by the Courts below. This is not a suit merely against the L.I.T. But it is intended to challenge the wires of the acquisition proceedings as well as subsequent title of private persons therefore the suit could have been filed without issuance of notice and even otherwise filing of suit sufficient notice and the suit shall be deemed to have been competently instituted after the expiry of the period of notice, even if service of prior notice was a pre-requisite.
23. As regards issue of jurisdiction, it being virtually a title suit, the issues raised therein can be gone into by the Civil Court of general jurisdiction as held in Jamil Asghar's case reported as (PLD 1965 SC 698), therefore, I hold that the suit was competent without notice and that the Civil Court has the jurisdiction to try the same, findings of the two Courts below on the said issues, hence; are reversed and are decided in favour of the plaintiffs. ,
24. As regards the arguments of the learned counsel for the appellants that the acquisition proceedings are invalid because their purpose seems to be a disposal of the property in favour of one person rather for the benefit of an individual stands belied by the documentary evidence, particularly Exh.P-26, which proves that the respondent No. l had prepared a valid development scheme the whole notified of their claim or allotment of alternate land and if they have failed to make an effort to follow the land whereupon the displaced persons had to be accommodated they themselves are at fault and are not entitled to question the title of bona fide purchaser for value who has purchased the suit land in open auction. Same view has been taken by this Court in case of Haji Muhammad Ishaq v. Municipal Committee Sialkot, (R.S.A. 383/1964), decided on 18-3-1976.
Therefore, the argument being without merit is hereby repelled.
25. As regards the argument of the -learned counsel for the appellants that it is the Provincial Government alone who could have acquired the land, suffice it to say that the Central enactments as well as Provincial enactments had to be read together in juxtaposition to each other, which if read together, do permit the respondent No. l to get the evacuee land acquired if it falls within a development scheme, therefore, no legal defect can be found with the questioned acquisition proceedings.
26. As regards the judgment referred to by Mr. Gulzar Ahmad Pirzada, learned counsel for the appellant rendered in Writ Petition No.1240 of 1964, dated 26-11-1974, suffice it to say, that the said judgment is distinguishable on facts and is not applicable to the facts and circumstances of this case as in that case it had been established on record that the disputed property had never been acquired. In the case in hand, the disputed property stands acquired and it is only the legality and vires of the acquisition proceedings which have been challenged, therefore, the findings rendered in the above-referred case are of no avail to the appellants in these cases and hence do not advance their case. No other point has been urged.
27. Resultantly, for what has been held above, I see no force in all these appeals and hence the same are dismissed. Keeping in view the difficult questions involved in these cases, it is ordered that the parties shall bear their own costs.
28. Before parting with this judgment, it is observed that it appears to be a case of hardship for the appellants who have complained before me that they had a claim of rupees 44 lacs at the time of partition but they have not been accommodated and have not been allotted property in lieu thereof, if so advised, they may approach the Chief Settlement Commissioner for the satisfaction of their claim if still pending. Their request will definitely be sympathetically considered and determined by the relevant authorities in accordance with law.