ABDUL HAFEEZ CHEEMA, J.- The petitioners who are successors- in-interest of Siraj Din, have assailed the validity of order dated 23.6.1896 passed by Director General, LDA, rejecting the prayer of the petitioners for grant of exemption in lieu of their land acquired by LDA for Allama Iqbal Town Scheme.
2. The background of the dispute is that Siraj Din aforesaid was the owner of 1-Kanal, 1-Marla of land in Khasra Nos. 3284-55-66-57 of Mauza Bhekhewal, Lahore. He was succeeded by the present petitioners and a declaratory decree dated 4.4.1996 had already been passed in their favour by learned Civil Judge, Lahore, in which LDA was also a parly. An application was moved by Siraj Din deceased during his life-time and after proper investigation of his title with regard to the exemption of a plot Ming in the aforesaid khasra number in Allama Iqbal Town, LDA had issued 2- No Objection Certificate on 29.8,1994 which was indicative of the fact that the balance area for which no compensation had been paid as the owner had claimed exemption, was 1-kanal and 1- marla vide Award No. 1167 of Khasra _ numbers mentioned above.
3. In pursuance of his request, the Case was processed. Halqa Patwari, Tehsildar concerned, Assistant Director and the Deputy Director (Land Development), all found that the last date for filing the applications to claim exemption for 10 marlas plots was 30.4.1979. In this case, since the possession had been obtained on 17.11.1980, the aforesaid officials concurrently recorded that there was no dyke in filing the application particularly when after the aforesaid out-date i.e. 30.4.1979 no fresh date was fixed for those cases in which possession was taken by the LDA afterwards.
However, in order to be doubly sure, the Director Land (Development) sought an advice from the Legal Department of LDA. The advice tendered by the legal Department was that there were precedents in the office where applications for exemptions were entertained after 30.4.1979 on payment of nominal fee and that the case of Siraj Din also fell in the same category. Respondent No. 2 agreed with the opinion of the Legal Directorate of LDA and recommended the case of the petitioners for grant, of exemption with a proposal that the dyke may be condoned on imposing some reasonable penalty. The case, however, continued to be examined in one branch or the other. Ultimately the Director General vide his order dated 23.6,1996 arbitrarily rejected tie claim on the ground that 30.4.1979 was the last cut off date and no application could be entertained afterwards.
4. It is claimed by the petitioners that the impugned order is illegal, void and capricious and merits to be set naught with a direction that exemption sought for be granted to them.
5. In compliance of the order dated 30.6.1996 of this Court, The LDA have submitted their comments conceding that NOC was issued on 17.11.1980 in respect of the land in lieu of the exemption claim. It was submitted by the respondents that the petitioners moved application for exemption on 9.1.1994 whereas the target date was 30.4.1979. It was alleged that the petitioners could have moved for exemption earlier. However, they conceded that possession of the land of the petitioners was taken over by the LDA on 17.11.1980. They also conceded that advice/opinion from different quarters including he Director (Legal) of LDA was sought but this information cannot be divulged as these proceedings are privileged ones. They further conceded that opinions of the Director Land and Director Legal had been received in the office. It was, however, pointed out that since the pensioners were in know of the fact that their land was being acquired for Allama Iqbal Town Scheme, they ought to have moved before the aforesaid out date. Questioning the locus standi of the petitioners, it was stated that if they established their right, they would be accommodated in accordance with the policy of the LDA. It was further pointed out that the pensioners have not been denied their right so far and the case is still being processed with a view to come to a correct decision.
6. It is submitted by learned counsel for the petitioners that a careful perusal of the comments rendered by the LDA shows and shows clearly that in fact they have conceded the claim; that the entire department had advised/opined that the case of the petitioners was at ar with similar other cases in which exemption was allowed subject to some reasonable penalty; that since the entire noting of the office is on record and no proper privilege has been claimed by learned counsel for the LDA, as such nothing prohibits this Court from examining the official reports and derive a conclusion therefrom. Even there is nothing affecting the security of the state, as such, these documents are not privileged ones and can easily be formed part of the record.
7. Learned counsel for. The petitioners argued that Assistant Director (Legal) has mentioned in his note dated 13.6.1996 that from the notes recorded by the Exemption Branch from para Nos. 60 to 63, it is clear that all the awarded owners were given cut off date as 15.19.1976 for filing of applications for grant of exemption in lieu of their lands acquired for Allama Iqbal Town and defaulters were allowed to apply for exemption upto 30.4.1979 with late fee. It was further pointed out that the Exemption Branch had already granted exemption to those persons who had applied even after the cut date i.e. 30.4J1979 by charging late fee to the extent of Rs. 3500. The office note further goes on to describe that there was no justification to .Accord discriminatory treatment to the present petitioners. Since the LDA had already allowed such relaxation, the Deputy Director (Legal) also supported the view and observed that since possession in tips case was taken over by the LDA after the cut date and no fresh cut date was fixed, as such, the application may be allowed on payment of late fee of Rs. 3500/-. The Director Legal who was one of the Sessions Judges in the Punjab as also the Director Land Development in his report dated 20.6.1996 endorsed this view. As such, there was no fun in arbitrarily rejecting the petitioners' claim when the office itself had mentioned that there were number of precedents in this behalf.
2. Learned counsel for the LDA, however, stated that after the aforesaid cut date, there was no fun in affixing the fresh date and the exemption could not be granted to the petitioners; that the order impugned is neither arbitrary nor whimsical and the Director General was within his mandate to pass this order, otherwise there would be no end to such litigation. It was further pointed out that even if the petition is granted, no plot is left in Allama Iqbal Town which can be given to the petitioners in exemption in lieu of t heir land, as such, the petition merits dismissal.
3. Arguments have been beard and record gone through.
10 This is a peculiar case in which the entire department has banked upon the earlier practice of the LDA and stated that the petitioners should not be meted out with discriminatory treatment and ought to be allowed exemption prayed for. The vital point in this case seems to be that the petitioners .Were divested of their possession of land on 17.11.1980 when the land vested in the LDA.
So they could not have applied for exemption when they were the owner of the land as has been held in PLD 1972 Lahore, 458.
11. The Director General, LDA has indeed the powers to exercise administrative discretion but essentially it must be bounded by rules and should not be exercised arbitrarily and capriciously. It is in fact an exercise of fair judgment based on facts and guided by equity and prudence with a view to ensure the decision which is proper under the given circumstances. Reference may be made to KLR 1992 C.C.
160. Failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured, tantamount to discrimination which is not allowed by law. Lower officers consistently reported that even after the cut date the LDA had been entertaining applications as per policy approved by the Director General on 20.9.1983 on charging nominal penalty/fee. The present case appears to be at par with other precedent cases and merits serious consideration of this Court. The out date was indeed required to be fixed after acquisition of possession of the land in dispute by the LDA but since there was no such date fixed and the LDA had been granting exemption even previously in identical cases, there appears to be no warrant in law to treat this case differently. The discrimination in case of the petitioners clearly offends against Article 4 of the Constitution of Islamic Republic of Pakistan. Likewise, it is also violative of the principles of Sharia enunciated in Articles 3 and 4 of Enforcement of Sharia Act, 1991.
12. It is noteworthy that this Court had passed an order on 21.7.1996 that respondents shall reserve a plot out of the khasra in question for the petitioners which can be allotted to them, in case of their success in the. Constitutional Petition. So, therefore, the department cannot now tum round and say that there is no chance of allotment of any plot in Allama Iqbal Town. Even if it is conceded th. t there is no plot available in the aforesaid town, the department should still accommodate the petitioners in any other equivalent scheme.
13. Since in accordance with the policy approved by the Director General, LDA the department has been granting exemption to the applicants even after the cut date as noted down by the entire hierarchy of the Legal Directorate of LDA and so also by the Director Land Development, the petitioners are held to be entitled to the exemption claimed for. Resultantly, the writ petition is accepted. The respondents shall give the petitioners a plot as claimed, in the aforesaid scheme and in case there is no such plot available there, then in any equivalent scheme in accordance with the policy. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.