AMIR ALAM KHAN, J.--- This order shall be read in Writ Petition Nos. 20079, 21962, 26628, 27590, 27805, 28.918, 23451, 28395, 25121, 22696, 19475, 21448 of 1997, 9769, 4878, 3484, 3483, 2923, . 2398, 903, 4729, 10540, .10531, 10532, 13409, 6918 of 1998 as common questions of facts and law are involved therein and shall also dispose of Crl.Org. Nos. 915 and 917-W/1998 as the same arise out of the said writ petitions.
2. The relevant facts are that land measuring 293 kanals and 15 marlas situate Toba Tek Singh was earmarked and transferred to Municipal Committee, Toba Tek Singh for establishing a housing colony for low income and shelterless people. This tract of land subsequently came to be known as Jinnah Colony No. 2, T.T. Singh for which the Municipal Committee, Toba Tek Singh paid the price at the rate of Rs.20,000/- per acre and agreed to develop the same for the housing scheme afore noted. The petitioners in all these petitions have claimed occupation of plots of land comprised in the abovesaid colony. It is asserted that they have deposited Rs.101/- as security and that the area in occupation of each petitioner was 5 to 7 marlas and even more. It was then submitted that the Municipal Committee, Toba Tek Singh has .Threatened to demolish the houses of the petitioner and for that matter the demolition squad of the said committee had come on the site without issuance of any show-cause - notice as also without hearing the petitioners. The above said proposed/intended action of the Municipal Committee, Toba Tek Singh has been assailed in the present Constitutional petitions with the prayer that they be restrained from demolishing the houses of the petitioners as also dis- possessing them from the various plots in their occupation in any manner whatsoever. A prayer for the grant of proprietary rights was also added.
3. In the report and parawise comments filed by the Municipal Committee, Toba Tek Singh, it was maintained that the petitioners had no locus standi to claim any right or interest in the plots as they are trespassers/encroachers. As far the deposit of Rs.101/-, it was submitted that the same was a security, which was refundable and that i.t did not create any right of ownership or interest in the various plots of land. It was also submitted that number of applications received in the office of Municipality was 7834/- and it was explained as to how the. Petitioners came into occupation of the various plots by asserting that on the night of every holiday, the petitioners would encroach upon the plots and built a 'kaccha pacca' construction without obtaining sanction of any construction plan from the Municipal Committee as also without allotment and without considering the lay out of the development scheme. It was submitted that the petitioners belong to qabza group" and deserve no relief for their hands are soiled and their conduct is not above board.
It was also submitted that a site development scheme has been planed by Housing and Physical Planning Department; Government of Punjab but the same has been sabotaged due to nefarious activities of the petitioners. It was then asserted that the raising of haphazard construction is not countenanced in a civilized society and that the Local Government Act requires that a person intended to raise construction on the site must get the construction plan approved by. The Municipal Committee. It was added that the respondents have paid price of the land while the petitioners want to usurp the same free of cost. It was lastly submitted that no allotment order has ever been issued to any body and that it is the duty of the Municipal Committee to remove the encroachments as also to demolish the construction raised at the site without construction plan and particularly the one which contravenes the site development scheme/plan, therefore, the action taken and being taken by the Municipal Committee could not be declared to be without lawful authority.
4. It is matter of record that the questions forming subject- matter of these writ petitions were even previously brought before this Court in Writ Petition No. 2337-92 and had been resolved by my brother Zia Mahmood Mirza, J. (as he then was) vide his judgment dated 26.1.1994 (copy whereof has been placed on the record) in the manner that a Committee was formed comprising.
(i) The Deputy Commissioner, Toba Tek Singh or his nominee.
(ii) Sitting President of the District Bar Association, Toba Tek Singh.
(iii) Member Punjab Bar Council from the District.
(iv) Town Planning Officer, M.C. Toba Tek Singh, who was charged with the duty to look into each individual case on merit so as, to determine the entitlement of each petitioner keeping in view all the relevant factors including the nature and length of.
[ possession of the person alleged to be in occupation and the fact "whether he/she is shelterless and does not own any residential accommodation elsewhere in Pakistan" before making any allotment in favour of the petitioners therein. The matter was remitted to the Deputy Commissioner who was also appointed as co-ordinator of the Committee charged with the duty to allot the plots.
The matter was agitated before the Hon'ble Supreme Court of Pakistan where the Municipal Committee, Toba Tek Singh remained unsuccessful and has thus attained finality. It goes without saying that the land is available which requires to be allotted to the various persons entitled to the same and that the various petitioners have deposited security amount for securing: the allotment but the fact remains that site development scheme has been planned and approved by Municipal Committee, T.T. Singh which in any case is not to be deviated from for even the shelterless people cannot be allowed to take law in their own hands. Their conduct of raising haphazard construction at the site without considering for a while that it may not violate the site development scheme cannot also be approved. Since the matter had been resolved by the judgment of this Court, which was also upheld by the Honourable Supreme Court and has thus attained finality, therefore, I would respectfully, agree with the rule laid down therein. Needless to add that even the learned counsel for the parties agreed before me that the controversy be resolved in accordance with the judgment already delivered. Learned counsel for the respondent, however, pointed out that the number of applications so far received by the Municipal Committee, Toba Tek Singh approximately comes to 7834 while number of plots of different dimensions are lessor in number than the application's, therefore, the matter can only be decided by - the Committee by balloting and not otherwise. The submissions looked very plausible in the first blush but on deeper probe I find that by balloting the persons who had filed his application earlier in time may not get a plot while a person who had filed his application subsequent in time may get precedence over the others, therefore, it is directed that the Committee shall first proceed to sort out the applications, the number of which shall be commensurate with the plots available and the entitlement should be determined on first come first basis, whereafter the balloting should be made through draws so as to decide as to which petitioner is entitled to which plot. I have noted it with deep concern that in the Jinnah Colony, where there are major number of plots are of three and half marlas, there are plots of 10. Marla, 7 marla and 5 marla. I. Believe this discrimination should not have been made for in Jinnah Colony the size of plot should be the same so that there may not be added affluent member of the society.
5. - In the circumstances these writ petitions are allowed. The matter is remitted to the Committee afore-referred, who will proceed to decide the entitlement of the petitioners in accordance with the parameters laid down herein above and the earlier judgment as referred to above and till then no petitioner would be dispossessed or their houses be demolished but the moment the Committee decides the entitlement as also complete the allotments, the petitioners shall immediately vacate the land in their occupation for the purpose of laying and execution of the site development scheme whereafter the allottee shall occupy their various plots after obtaining demarcation from the Municipal Committee as also after complying with the other conditions attached to the allotment. As far the CrI.Orgs. The same were not pressed by the respective counsel for the petitioner, therefore, they are disposed of as such. There shall, however, be no order as to costs.