This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred questioning the validity of site plan (Annexure "F") sanctioned in the name of Javed Iqbal Mughal, an owner of a plot bearing No.A/1, Hall Road, Murree, measuring an area of 2800 sq. Ft.
Approved by the Municipal Committee, Murree in September, 1995 under the nomenclature at Braemar Estate, Murree.
2. The brief facts in the background leading to this petition are that Khan Bahadur Muhammad Ghias-ud-Din, father of the petitioner, owned a big property in India and at the time of partition, the same was exchanged with the property of Iqbal Singh in Rawalpindi and Murree through an exchange deed, which was duly registered at Lahore on 14-8-1951 under No-Objection Certificate issued by Additional Custodian of Evacuee Properties, Lahore. The property known as New Iqbal Villa is forming part of Off Spring Estate consisting upon an area of two Acres and the property known as Braemar Estate being adjoining are divided by a Nala with independent boundaries.
Respondents Nos. 2 to 5 purchased a plot bearing No. A/1 measuring 2800 sq. Ft. At Hall Road, Murree through a registered sale-deed, dated 20-5-1987 from one Javed Iqbal Mughal and started raising construction in the area forming part of Off Spring Estate with the claim that said area belonged to the plot purchased by them. The factual position as per sale-deed and the site plan of the plot of respondents Nos.2 to 5 is as under:-- "According to the sale-deed, Plot No.A/1 measuring 2800 sq. Ft. Without describing boundaries is situated at Hall Road, Murree, whereas the site plan of said plot was got approved for an equal area in the Braemar Estate owned by another person and the construction at the spot is being raised in the area of Off Spring Estate (New Iqbal Villa). The plot bearing No.A/1 is neither traceable at Hail Road nor is a part of Braemar Estate. The petitioner having found respondents Nos.2 to 5 herein taking benefit of the absence of the petitioner by encroaching upon the land of Off Spring Estate owned by her started raising construction on the basis of site plan, under challenge. As per claim of the petitioner, out of the total area of 2 Acres of Off Spring Estate, New Iqbal Villa is covered by an area of 12 Kanals and 7 Marlas, but the exchange deed is confined to the extent of only 5 Kanals and the possession of the remaining area of 7 Kanals and 7 Marlas was also with the father of the petitioner under the exchange deed since its execution, she is owner in possession of the same.
3. Learned counsel for the petitioner argued that the site plan in question approved by the Municipal Committee, Murree of a non-existent plot through illegal exercise of jurisdiction has no legal sanction and consequently the construction in the area of the petitioner under the cover of site plan in question is being raised through an act of unauthorized occupation of land. The plot mentioned in the sale-deed being different to that of one for which the site plan has been sanctioned and both documents not disclosing the correct description and boundaries of the plot and its location, the site plan was not a valid document to be used for construction at the spot. He argued that issuance of site plan by the Municipal Committee, Murree can hardly be presumed a public document, but it is not a proof of the existence of plot at the spot as described in the sale- deed and that the site plan being in conflict to the sale-deed and having issued in violation to the Bye-Laws has no legal status and consequently the construction on the basis thereof at any place in the municipal area would be illegal, what to speak of the area forming part of Off Spring Estate (New Iqbal Villa) owned by the petitioner.
4. Learned counsel appearing on behalf of respondents Nos.2 to 5 conversely with introduction of the following facts pertaining to the litigation in the background questioned the maintainability of this writ petition on the subject.:----------
(i) That Civil Suit No.359 of 1995 filed by Mst. Hamida Nizam petitioner against Municipal Committee, Murree in the Court of Civil Judge, Murree claiming ownership and possession of an area measuring 12 Kanals and 7 Marlas known as New Iqbal Villa was dismissed on 27-11-1996.
(ii) That Javed Iqbal Mughal, predecessor-in-interest of the respondents, filed a suit against the petitioner on 1-7-1994 claiming that plot bearing No.A/1 measuring 10 Marlas i.e. 2800 sq.Fit. At Hall Road is owned by him and the petitioner having no concern with it be restrained from causing any interference. The said suit was dismissed under Order VII, Rule 11, Cr.P.C. On the basis of statement made by the counsel for the writ petitioner that she would not disturb any person out of her boundaries.
(i.e) That one Ch. Sajjad Ahmad, Advocate also filed a suit bearing No.84-A against the writ petitioner and Municipal Committee, Murree, which stood dismissed vide judgment, dated 2-3- 1994.
(iv) That Sarfraz Ahmad, respondent No.2, herein, filed a suit for permanent injunction against the Municipal Committee, Murree seeking a decree restraining interference of the petitioner in the construction of the respondent on the plot in question (A/1 Hall Road) for which site plan has been approved by the Municipal Committee, Murree. The Municipal Committee and the writ petitioner are in appeal against the restraint order passed in the abovesaid suit. Both the suit as well as the appeal are pending disposal.
5. Learned counsel sought dismissal of the writ petition contending that--- (a)the petitioner being guilty of the suppression of material facts has not come to this Court with clean hands and consequently is not entitled to any discretionary relief;
(b) that the dispute between the parties relating to the unauthorised construction being subject- matter of litigation before the Civil Court through the suit still pending before the Civil Judge at Murree cannot be brought before this Court through this Constitution petition;
(c) after disposal of the counter civil suits filed by the parties against each other as well as the Municipal Committee, Murree involving the dispute of title and possession of the property as part of Off Spring Estate and construction thereon and the pendency of another civil suit alongwith appeal of the petitioner against interim order, no interference by this Court is called for in the matter in writ petition; and
(d) as per stand of the Municipal Committee, Murree, the petitioner is not owner of the total area of Off Spring Estate (12 Kanals 7 Marlas) and that her ownership is only confined to the extent of five Kanals, therefore, she cannot object to the construction of the petitioner even if located in the area forming part of the Off Spring Estate.
6. Learned counsel stressed for dismissal of the writ petition on technical grounds without answering the pivotal question regarding the location of plot bearing No.A/1, Hall Road, Murree. He, however, denying the plot as part of the Off Spring Estate admits that the same is not described as part of Braemar Estate in the sale-deed. He insisted that the existence of plot in question in the area can be located and proved through other evidence, therefore, the petitioner instead of questioning the validity of site plan sanctioned by the Municipal Committee in favour of respondents Nos.2 to 5, should seek her remedy before the Civil Court for declaration that the area under construction is not part of the Off Spring Estate. He added that the local commission appointed by the Civil Judge has confirmed the location of Plot No.A/1 at the place, where the construction was under progress.
7. Learned Legal Advisor of the Municipal Committee, Murree owning the statement of its Chief Officer made before this Court on 24-10-1997 stated that the site plan impugned herein was obtained for an area falling in the Braemar Estate, whereas the construction at the spot is being raised in the area of Off Spring Estate. He without commenting upon the ownership of the petitioner to the total area of Off Spring Estate (New Iqbal Villa) measuring 12 Kanals 7 Marlas conceded with reference to a letter, dated 9-9-1953 written by the father of the petitioner to the Secretary, Municipal Committee, Murree that in addition to the built up area i.e. 5 Kanals of Off Spring Estate, known as New Iqbal Villa, the open area attached therewith was also allowed to be retained by him. He without denying the claim of the petitioner stated that Plot No.A/1 is neither part of Braemar Estate as shown in the site plan nor is located at Hall Road, Murree. He as per record of the Municipal Committee clarified that there is no plot bearing No.A/1 in existence at Hall Road and that Javed lqbal Mughal through misrepresentation got the site plan sanctioned of an area measuring 2800 sq. Ft. In Braemar Estate.
8. Learned counsel for the respondent without disputing the genuineness and existence of the exchange deed and other documents being relied upon by the petitioner as well as the Municipal Committee taking no exception to the factual position regarding the location of the plot at the spot subject-matter of site plan contended that approval of the site plan by the Municipal Committee being no disputable, its legal status to be used as such for the purpose of construction is not questionable.
9. I have heard the learned counsel for the patties at length and also examined the documents not disputed as such in the light of law on the subject. The site plan for construction of a building in urban area is to be sanctioned in the manner as provided in the Bye-Laws framed in terms of section 77 of the Punjab Local Government Ordinance, 1979. The Building Bye-Laws of the Municipal Committee, Murree under sections 137 and 138 of the Punjab Local Government Ordinance, 1979 read with Item No.12, Part II of the Second Schedule of the said Ordinance were published on 29-2- 1992 in the official Gazette through notification dated 24th of February, 1992. Section 2 of the said Bye-Laws provides as under:-- "(2) The site. Plan shall be submitted in triplicate and shall show:--
(a) The directions of the north point.
(b) The Boundaries of the site.
(c) The position of the site in relation to the street, if any, on which it abuts.
(d) All buildings and premises within 50 feet of the boundaries of the proposed building with width of all streets."
The site plan impugned herein being devoid of above information was approved and sanctioned ' violation of Bye-Laws, as the same does not disclose the boundaries of the plot and other required details. A site plan in violation of Bye-laws cannot be sanctioned. In case Yassin v. King (1899) 1 QB 444, the approval by an Urban Local Council of Building Plans, which contravened by the Bye-Laws made by that Local Council was declared illegal and inoperative. The only exception can be that mandatory requirement of Bye-Laws, if is found not enforceable in practice, it can be a strong ground for necessary amendment to make it practicable, but the same is not dispensable through exercise of discretion by the Local Council. The Bye-Laws in question if not inconsistent to the provisions of the Punjab Local Government Ordinance, 1979, the sanctioning of site plan in contravention of the same is an illegal exercise of jurisdiction. A Local Council must be vigilant for strict observance of its Bye---Laws and should not permit erection of a building in violation of Bye- Laws. The approval of site plan not fulfilling the requirement of Punjab Local Government Ordinance, 1979 or the Building Bye-Laws by itself is not an authorization to raise construction, if the same infringes any of the requirement of law or Bye---Laws and the right of other persons, the sanction of such site plan by the local Council would be nullity in law. It was held in case Sheikh Nizamuddin vide Corporation of Calcutta AIR 1940 Cal. 11 as under: "A written permission to erect a new building is not by itself a conclusive proof that all the requirements of the Act have been complied with in respect of that building. If in fact the building in question infringes any of the requirements of the Act, the permission would appear to be nullity in face of section 319. "
The proposed building to be erected on the land which is not owned by I the person, who seeks approval thereof as it is owned either by the Government or the Municipal Committee or a private person the sanctioning of building plan would amount to permit encroachment and unauthorized occupation by the Local Council and in case of dispute of Municipal Committee with the Government or an individual over the title of land, the site plan for construction in the area without identifying the boundaries of the place cannot be approved and sanctioned for any reason. The Bye-Laws requiring plan of new buildings showing the position of such buildings and of adjoining buildings must be followed strictly while approving the plan. A local council is bound by its Bye--- Laws and unless the Bye-Laws themselves or some statute give the Local Council a dispensing power of a condition, Urban Local Council cannot waive the requirement of its Bye-Laws. The authority which makes and promulgates a law must strictly observe the same and in case of violation being answerable for illegality, the matter is not immuned from the judicial scrutiny of this Court under its Constitutional jurisdiction on technical grounds.
10. Reverting to the factual background, Off Spring Estate No.112, measuring 2 Acres was owned by Iqbal Singh. The part of said Estate known and called "New Iqbal Villa" comprised of an area of 12 Kanals and 5 Marlas out of which an area of 5 Kanals with construction detailed in the draft of exchange deed between the father of the petitioner, namely, Khan Bahadur Muhammad Ghias- ud-Din and Sardar Iqbal Singh executed on 27-8-1949 and registered on 14-2-1951 (Annexure "A" with this petition) was allowed by the Custodian Evacuee Properties, Lahore through No-Objection Certificate dated 26-10-1953, to be retained by the father of the petitioner as owner. The property known as New Iqbal Villa is bounded by Fairfield Hotel on the south, on the East by plot of Sh. Inayat Ullah and Hall Road and on the West of Off Spring House and burnt Iqbal Villa owned by Sardar Iqbal Singh and north by K.B. Taj Muhammad Khan. The land belonging to New Iqbal Villa originally part of Off Spring Estate was accordingly demarcated. The site plan prepared by the Municipal Committee, Murree on 26-10-1953, available on the file of this petition, clarified the factual position as under:---- '"Off Spring Estate comprised of total area of 2 Acres. The area under New lqbal Villa is 12 Kanals 7 Marlas, out of which 5 Kanals with construction was subject-matter of exchange deed. The remaining area of 3 Kanals and 13 Marlas was given by its owner to a Missionary Institution. After the division in the above manner, the total area of 12 Kanals and 7 Marlas attached with New Iqbal Villa, was allowed to be retained by the father of the petitioner. The difference in the description of the area in the exchange deed and the site plan, which is part of the exchange deed has made the matter complicated. As per claim of the petitioner, New Iqbal Villa with its total area at the spot measuring 12 Kanals 7 Marlas was owned and possessed by her father and the remaining area (3 Kanals 13 Marlas) of Off Spring Estate was given to a Missionary Institution. The claim of Municipal Committee was that the petitioner is only owner to the extent of 5 Kanals mentioned in the exchange deed and the remaining area was owned by the Municipal Committee, Murree. This dispute between the petitioner and the Municipal Committee has no nexus with any third party or other property referred in the exchange deed or owner of the said property. Thus, despite the ownership of the petitioner only on 5 Kanals in the exchange deed, the Municipal Committee or any other person having no right, title or interest in the remaining area of Iqbal Villa known as Off Spring Estate can interfere in lawful possession of the petitioner through her father since approval of exchange deed and permission of retention of the total area by the Custodian as mentioned in the site plan dated 26-10-1953. The petitioner being in permissive possession of total area of New Iqbal Villa i.e. 12 Kanals and 7 Marlas as owner has become absolute and exclusive owner. The Municipal Committee has also implidely conceded this position."
11. Be that as it may, this dispute of ownership, if any, of the petitioner with the Municipal Committee, Murree is not related and concerned to the matter in hand.
12. The question in the present petition is that of the existence of Plot No.A/1, Hall Road, Murree. The site plan has been sanctioned by the Municipal Committee, Murree for an area forming part of an adjoining property known as Braemar Estate, but the sale-deed of plot in question without disclosing its boundaries describes its location at Hall Road, Murree. The plot in question being not traceable, the crux of the matter is that respondents Nos.2 to 5 taking benefit of the dispute of the petitioner with the Municipal Committee after getting the site plan sanctioned on the basis of the sale-deed of a parallel land in the Braemar Estate, and occupying a portion of land of Off Spring (New Iqbal Villa) started construction. The exact location of plot bearing No.A/1 at Hall Road, Murree being not known, the respondents Nos.2 to 5 having no explanation about the conflict of the location of plot in the sale-deed and the site plan could not be allowed to raise construction. The site plan and the sale-deed being in conflict to each other evidently show that the site under construction is not owned and possessed by respondents Nos.2 to 5 and the Municipal Committee in illegal exercise of its jurisdiction approved the building plan.
13. The main thrust of the learned counsel for respondents Nos.2 to 5 was that the question relating to- the location of plot requiring evidence, the writ petition was not maintainable and that the onus was on the petitioner to establish that Plot No.A/1 is part of her property. The examination of the site plan, impugned in the writ petition, the sale-deed of the land measuring 2800 sq. Fit. In favour of respondents Nos.2 to 5 read with the statement of the Chief Officer, Municipal Committee made before this Court on 24-10-1997, to the following effect completely negates the stand of respondents Nos.2 to 5:-- "The Chief Officer, present in Court, confirming the factual position explained by the learned counsel for the petitioner, stated that the site plan pertains to Braemar Estate, whereas the construction is being raised in the area of Off Spring Estate situated at the Hall Road, Murree and that essential proceedings have been initiated against respondents Nos.2 to 5 restraining them from raising construction and for demolition thereof already raised at the spot. He also confirmed the statement of learned counsel for the petitioner that plot bearing No.A/1 allegedly purchased by the respondents Nos.2 to 5 from one Javed Iqbal is not located at the Hall Road and that site plan was obtained surreptitiously with the connivance of subordinate staff, for which departmental as well as criminal action against the-official responsible for the mischief is being initiated. He without conceding the claim of Municipal Committee, stated that Javed Iqbal; the original owner of the plot bearing No.A/1 or subsequent purchaser i.e. Respondents Nos.2 to 5 do not own any area of the Off Spring Estate, where the construction is being raised by them through encroachment."
As per stand taken by the learned counsel appearing on behalf of the Municipality, it can easily be visualized that the construction at the spot is neither in the area forming part of the Braemar Estate nor the said place has been identified as plot, bearing No.A/1, Hall Road, Murree, therefore, notwithstanding the dispute if any of the petitioner with Municipal Committee regarding the ownership of the total area of Off Spring Estate, the area under construction by the respondents Nos.2. To 5 being part of Off Spring Estate cannot be permitted to be constructed on the basis of a site plan sanctioned for said Plot No.A/1 without disclosing its boundaries and proper description at Hall Road, Murree. There can be no cavil to the proposition that the dispute relating to the possession and ownership of the land of Off Spring Estate between the petitioner and the Municipal Committee, Murree cannot possibly be decided without recording of evidence and this Court in exercise of its Constitutional jurisdiction without going into the question relating to the claim of ownership of Municipal Committee, Murree confine itself to the extent of validity of site plan in favour of respondents Nos.2 to 5 being used for construction in area of the petitioner.
14. Undoubtedly, -the dispute involved in this petition is not to the ownership and possession of the land between the parties as such rather the same pertains to the unauthorized construction being raised by respondents Nos.2 to 5 in the area of the petitioner on the basis of site plan approved by the Municipal Committee for a plot not in existence at the spot. Thus, the fact that the area under construction at the spot is owned and possessed by the petitioner being established through the official record of the Municipal Committee, Murree is not controvertible on the basis of mere assertion of the respondents. Consequently, the site plan having no legal sanction, its status is not beyond the judicial review and scrutiny of this Court in its Constitutional jurisdiction. The E learned counsel instead of making proper answer to the questions put to him about the location of Plot No.A/1 from the sale-deed or any other documents in his possession other than the site plan, he repeatedly demanded dismissal of the writ petition with the contention that the matter should be decided by the Civil Court.
15. The site plan on the basis of which the respondents through encroachment started raising construction in the area of Off Spring Estate owned I by the petitioner having issued in violation of law and Bye-Laws of the Municipal Committee, Murree cannot validly be used for the construction in the area without proving the existence and location of the plot at Hall Road, Murree by the respondents. The illegal practice of occupying the Government land or unattended private lands by land graspers with the connivance of functionaries and officials must be discouraged and uprooting this evil and the persons involved in such corrupt practice must be dealt with an iron hand. The concerned authorities while taking serious notice of the matter should proceed against the officials, who are responsible for managing the issuance of such site plans.
16. In the light of above discussion, it is, therefore, held that unless respondents Nos.2 to 5 established before the proper forum through proper proceedings identifying the land purchased by them bearing Plot No.A/l, Hall Road, Murree, the sanctioning of the building plan without identifying the boundaries of the plot in question, was not legal. Respondents Nos.2 to 5 in the circumstances under the garb of the site plan in question cannot be permitted to raise construction in the area forming part of the property of the petitioner. The trend of. Usurping the properties of other people through such devices and methods must be deprecated and the official agencies must not permit such people to use the machinery of law to achieve the ill-motives and retain ill---gotten. Reference in this regard to the case of Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106. It is strange that learned counsel instead of establishing the location of the plot of respondents Nos.2 to 5 and their right of possession as owners of the site under construction stressed that the petitioner should establish that the area is not owned by the respondents.
17. In view of the position emerged through the official record and admitted documents, the onus is on the respondents to establish their right to raise construction at the spot and prove that the plot numbered as A/1, Hall Road, Murree is part of Braemar Estate and does not form part of Off Spring Estate or that it is located at Hall Road, out of the area of both the Estates, and unless the needful is done, the construction on the basis of the site plan not containing specific location of the Plot No.A/1, Hall Road, Murree as per sale--deed without disclosing its boundaries is unauthorized.
18. Learned counsel for the petitioner in reply to the objection of learned counsel for respondents Nos.2 to 5 regarding the suppression of facts relating to the litigation on the subject and the maintainability of this petition placing reliance on the following cases: PLD 1972 SC 279 and 1992 CLC 1017 argued that the dispute involved in the civil suit is entirely different to that of the subject- matter of the writ petition, in which the petitioner while challenging the validity of the site plan, was not required to give detail of the litigation between the parties. The detail of the litigation through civil suit between the parties and the Municipal Committee, Murree, if omitted to be brought on record, the sufferer would be the petitioner, who could take benefit of the said fact as additional ground in support of this petition. However, the dispute between the parties in the civil suit as such having no nexus with the exercise of jurisdiction by the Municipal Committee in approving the site plan and the use of same as a valid document for the purpose of construction at the spot, the objection of the learned counsel regarding suppression of fact and maintainability of the writ petition is not sustainable. The necessary facts for the purpose of this writ petition having brought on record and supplementing with relevant documents, there was no suppression to disentitle the petitioner from appropriate relief. The site plan sanctioned by the Municipal Committee, Murree in violation of the provisions of Punjab Local Government Ordinance, 1979 read with its Bye Laws, having no legal force, is void ab initio.
19. The site plan under attack being patently against the Bye-Laws and approved in illegal exercise of jurisdiction must be struck down. The apex Court. Consistently repeating the same view held that no excuse can be provided to a person on the basis of void ab initio order. Reference may be made to cases: Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236, The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Begum Shams-un-Nisa v. Said Akbar Abbasi and another PLD 1982 SC 413.
20. The objection of the learned counsel for respondents Nos.2 to 5 relating to the maintainability.
Of the writ petition on the subject is also not entertainable as in the case of violation of a statute or a rule, a person directly or indirectly effected by the action in consequence of such violation being an aggrieved one can resort to the Constitutional remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. This Court in case of Masood-ul-Hassan Qureshi v. Government of the Punjab through its Secretary, Auqaf Department, Lahore PLD 1976 Lah. 630 following the' above view taken by the apex Court in cases Mian Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321, Anujman-e-Ahmadiya v. D.C., Sargodha PLD 1966 SC 639, The Chairman, E.P.D.C.
And another v. Rustam Ali PLD 1966 SC 848, Muhammad Naseem Ahmad v. Miss Azra Feroze Bakht PLD 1968 SC 37, Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and Habib-ur--Rehman's v. West Pakistan Public Service Commission and 4 others PLD 1973 SC 144 has held as under: "Thus in a case where there is a violation of any law or rule, a person aggrieved can resort to a Constitutional remedy, as the act may be without lawful authority."
21.Consequently, I allow this writ petition in the following manner:--
(i) That no construction will be raised by the respondents at the spot without getting their plot bearing No.A/1, Hall Road, Murree traced out, located and demarcated;
(ii) That the area under construction being part of Off Spring Estate (new Iqbal Villa) which is not identifiable as Plot No.A/1, Hall Road, Murree through the site plan and sale-deed shall not be constructed; (i.e) That the site plan impugned herein having sanctioned in violation of section 77 of Punjab Local Government Ordinance, 1979 read with Bye-Laws of the Municipal Committee, Murree for a non- existent plot being void ab initio is illegal and invalid to be used for the construction at the spot and the construction already raised is declared unauthorised and illegal.
The parties are left to bear their own costs.