MUSHTAQ HUSSAIN, C. J.-The Lahore Development Authority issued a public notice in the `Pakistan Times', dated the 9th April, 1978, requiring inter alia of every owner whose land falls within the `Mustafa Town Scheme' to apply for exemption of 30 % of his holding subject to the condition that no exemption shall be granted to an owner of less than 10 marlas. The exemption was to be allowed on payment of development charges at the rate of Rs. 25,000 per kanal. It was directed in the notice that in addition to other given requirements, every owner shall attach with his application a bank draft equal to 50 % of the amount of the development charges in respect of the plot for which exemption is sought. It is this public notice which forms the basis of the present writ petition.
2. The petitioners own different parcels of land within the limits of the Scheme referred to above.
Their land has since been acquired under the Punjab Acquisition of Lands (Housing) Act entitling them to receive compensation. It is stated by the learned counsel that though the petitioners are entitled to seek exemption yet the respondents have no lawful authority to demand 50 % of the development charges alongwith the applications invited.
3. It is stated by the learned counsel that the previous exemption policies as embodied in memos, dated 19th April, 1958 and 4th November, 1963, which are more favourable to the petitioners have been saved under section 48 of the Lahore Development Authority Act. The Martial Law Instruction No. 23 issued on 29th October, 1977 and amended as per press note in `Pakistan Times' dated 6th January, 1978, , reduced their entitlement. It is contended that as the Mustafa Town Scheme had been notified on 16th February, 1977, the previous exemption policies, would apply. We however, find no force in this plea. The Martial Law Instruction No. 23 was specifically applied to all those schemes in which possession had been taken after 17th August. Some named schemes, however, were specifically subjected to the previous policy. Mustafa Town Scheme is not one of those. Those instructions are valid and operative under section 17 and override previous instructions in view of section 17 read with section 46 of the Lahore, Development Authority Act. It has not been shown that possession in this, scheme has been taken over before 17th August, 1977.
4. The other objection being raised is that as the respondents have not obtained previous permission of the Provincial Government under section 28 of the Lahore Development Authority Act, 1975, to raise funds to meet the cost of the scheme, the demand of the amount in question is unlawful. This objection, however, has no merit. The respondent Authority in the last round of litigation against a similar public notice, had produced the sanction of the Government but the same was not accepted as it had been granted after the public notice had already been published. It was , therefore, not considered to be with the previous consent of the Government and hence not accepted as valid. In fact the previous writ petitions were declared infructuous when the respondent conceded to withdraw the previous notice and to issue a fresh public notice inviting applications.
5. The next question agitated is that as those of the petitioners who are owners of less than 8 kanals of land have the option to get compensation in the form of cash or developed plots, the respondents have no authority in law to offer only 30 % of the land and not the entire area. Even this contention has no merit. Section 11 of the - Punjab Land Acquisition) (Housing) Act, 1973, does entitle a land owner to opt for one or the other form of compensation but does not entitle an owner of that much area to get his entire parcel of land in the form of developed plots at his option. The import of the section is that a person owning an area less than 8 kanal may get compensation in the form of developed plots. Thus those of the petitioners who fall in that category may ask for as much land in developed plot/plots as may be equal to his compensation. To illustrate, if 7 kanals of land owned by a person is acquired and assessed at the rate of Rs. 10,000 per kanal, the owner would be entitled to a cash compensation of Rs. 70,000.! The owner who is entitled to opt may ask for the compensation in the form of developed plots. Now suppose if a plot in that scheme has been evaluated' after taking into consideration the price of the land and the development charges, at the rate o f Rs. 35 000kanal, the owner will be entitled to only 2 kanals and not 7 kanals as originally owned by him.
6. Further, prima Jade, the present notice is not meant for such owners who have the right to opt under section 11 referred to above. Here the respondent Authority is asking for applications from all the owners, whether owning less or more than 8 kanals of land. Thus those of the petitioner who want to get compensation under section 11 are not the objects of this public notice and they may, therefore, exercise their option in accordance with law and inform the Authority if they would like to get compensation in the form of developed plot, without paying the development charges being claimed.
7. It is next submitted that the condition to pay 50 Y. Of the development charges before a plot has been allotted or exempted is unwarranted and is a clog on the right of an owner. This contention, however, is not correct. The land of the petitioners has already been acquired and they are entitled to its compensation only in accordance with section 11. Those who own less than 8 kanals can give their option but those owning more do not have any right to ask for a particular way in which the compensation should be paid to them. It is rather the option of the respondent Authority in their cases. The exemption scheme which is the basis of the impugned public notice rather appears to be a concession with regard to those owners of land who own more than 8 kanals and may be even for others. The delivery of a developed plot, however, is possible only if the Authority does develop the land first which would require lot of expenditure. The Authority is empowered under section 13(1) to prepare and execute infer alia a scheme in which no loan is taken from the Government and has to pay for itself. The power to raise funds for such a scheme is covered by section 28. The impugned notice is, therefore, governed not by section 11 but by section 28 and it is for the petitioners to accept the concession in its entirety with conditions attached or leave it. There is thus no clog on the right of the petitioners but it is a concession.
8. It was next submitted on behalf of the petitioners represented by Mian Nisar Ahmad, Advocate, that as the respondent Authority is inviting applications at this stage, it cannot ask for the payment without first considering and deciding as to who will be the exemptees. It was stated that the petitioners in his case would be prepared to pay the development charges if the Authority decides first that they are the exemptees. As observed above, the petitioners have to take the concession as it is. A right shall accrue in their favour under the scheme only after an application is made in accordance with the public notice and they are found eligible. The apprehension of the petitioners that the respondents may not decide their cases for long and may go on using their money does not appear to be genuine at this stage. In case the Authority delays the matter unreasonably the petitioners will have a justification to come to this Court for a relief. That grievance at this stage, therefore, is premature.
For the reasons given above, we do-not find any merit in this petition and the same is dismissed in limine.