CH. IJAZ AHMAD, J.-- I intend to decide W.P. No. 5495-88; W.P. No. 4297-89 and W.P. No. 5641-88 by one consolidated judgment having similar facts and law.
2. W.P. No. 5495-88. Briefly, the facts of the case are that the petitioner is Welfare society under the name and Style of New Garden Town Scheme duly registered under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961. The New Garden Town Development Scheme was formulated and sanctioned under the provisions of Lahore Town Improvement Trust Act, 1922 on 6.3.1967. Two plots measuring 11 kanals were earmarked for a Welfare Center and Public Hall in the area of civic Center as is evident from-Annex 'B' attached with the writ petition. The petitioner- Society filed an application before respondent No. 1 for allotment of both these plots in order to put them into use for which they have been earmarked but respondent No. 1 did not decide the application of the petitioner inspite of the assurances were given by the respondents to the extent that both the plots would be allotted to the Society in due course. Respondent No. 1 had divided the aforementioned two plots into eleven residential plots out of which two had already been allotted to respondents Nos. 2 and 3 by respondent No. 1 as is evident from Annex D' and E' "F' and G attached with writ petition; hence this writ petition.
3. W.P. No. 5641-88. Briefly, the facts of the case are that Plot No. 8 and 9 measuring 4 kanals each has been reserved for the aforesaid New Garden Town Scheme for Welfare Center and Public Hall.
The petitioner applied for transfer of aforesaid plots adjacent to Plot No. 7 attached Mosque and Madrasa have been constructed by the petitioner-Anjuman for construction of Community Hall for extension of Madrasa and Dispensary before respondent No:
1. Respondents have also divided these two plots into 8 kanals measuring 1 kanal each for transfer of residential building out of the said 8 plots, two plcts bearing No. 8 and 8-A had already been transferred to respondents No. 2 and 3 by respondent No. 1; hence the present writ petition.
4. W.P. No. 4297-89. Briefly, the facts of the case are that petitioner is Welfare Society registered under the provision of Societies Registration Act, 1860, the Gulberg III Scheme which was formulated and sanctioned under the provisions of Lahore Improvement Trust Act, 1922. Plot No. 84 Measuring 22 kanals was earmarked for a School as is evident from plan attached with the writ petition as Annex 'A'. Out of 22 kanals, 11 kanals had been allotted to petitioner No. 2 for the purpose of a School.
The remaining 11 kanals are also in the possession of petitioner No. 2 and being used as play ground for the children. Although initially 11 kanals were allotted to the Junior English Muslim School.
Subsequently competent authority of the respondents allotted plot No. 85 and 86-B/3 in lieu of 11 kanals in Plot No. 84 to the Junior English Muslim School. Petitioner No. 2 filed an application before respondent No. 1 for allotment of 11 kanals surrendered by the Junior English Muslim School. The respondent No. 1 did not decide the same. Respondent No. 1 divided the disputed plot into 10 plots of various sizes of which two plots No. 84-K-84-L had been allotted to respondents No. 2 and 3 by respondent No. 1 as is evident from Annex 'B' and 'C' attached with the writ petition;. Hence the present writ petition.
5. Mr. Zahid Hamid, Advocate submits that New Garden Development Scheme was formulated and sanctioned under the provisions of Lahore Improvement Trust Act, 1922 which being not inconsistent with any of the provisions of L.D.A. Act, 1975 in view of Section 48(3)(1) of the latter Act has to remain in force. The alteration made therein as to the conversion of two plots earmarked for public utility, into residential plots is without lawful authority; that the Member of the Petitioner's Society who run into hundreds purchased plots in the said development Scheme and built houses, on the clear understanding that the amenities like public library and community hall, etc., will be available to them. The Scheme having been acted upon by them in this behalf, cannot be altered now to their detriment.; that respondent No. 1 cannot alter any part of the scheme except in accordance with the procedure prescribed under the Town Improvement Act which includes the inviting and due consideration of public objections firstly by the L.D.A. And then approved from the Provincial Govt. But the respondents modified the Scheme and alter the same without adopting the proper procedure. In support of his contention he relied upon Ahmed Javed Shah's case (1996 CLC 748) NLR 1995 U.C. 790, Ahmed ?Axed Shah's case; unreported judgment in W.P. No. 9117-97, decided on 5.12.1997; that L.D.A. (Building Control Regulation 1984) envisaged that no land shall be used in any manner inconsistent with the used prescribed in any approved scheme or the master plan; that action of respondents is in violation of Regulation 17 read with Regulation 96 (4). In support of his contention he relied upon the following judgments:-- (PLD 1996 Lah 442) Lahore G-ammer School Pvt. Ltd. 's case.
(1995 CLC 1881) Muhammad lqbal and another's case. (1997 Lah. 580) Mst. Shamim Rizwan's, case.
(P.L.D. 1993 Kar. 237) Aerdeshik Kavasgee's case unreported judgment in W.P. No. 4758-90 decided on 18.7.1990.
He further submits that action of respondent No. 1 is hit by the principle of natural justice. In support of his contention he relied upon Massi Ullah Khan and three other's case (1994 MLD 603); (1989 MLD 1995) Muhammad Sharif and others' case; (PLD 1961. SC 537) M/s. Farid Sons Ltd. 's case. He summed up his arguments that respondent No. 1 converted, altered or Modified plots in question reserved for specific public purposes is without lawful authority.
6. Mr. S.M: Baqir, Advocate, adopted the arguments of Mr. Zahid Hamid Advocate and in addition to his arguments, he submits that by virtue of Section 48 ( 3)(1) of L.D.A. Act, 1975 the provisions of old Act of Lahore Improvement Trust Act, 1922 which being not inconsistent with the provisions of LDA Act, has" to remain in force, therefore, action of respondents must be in accordance with Sections 13 and 14 of the Improvement Act, 1922 but the action of respondents is in violation of Sections 13 and 14 of the Lahore Improvement Trust Act, 1922. He relied upon Sh. Ahmed's case (PLD 1984 SC 3304).
7. The learned Legal Advisor of L.D.A. Has raised preliminary objection that writ petitions are not maintainable as the petitioners filed writ petitions in representative capacity without adopting proper procedure as prescribed under Order 1 Rule 3 CPC; that residents of the aforesaid Schemes are entitled to enjoy amenities provided in the Scheme, however, the petitioners' right to represent the residents of the scheme is denied; in any case without conceding any right of the petitioners if the petitioner makes an application and establishes their genuineness and representative capacity in accordance with L.D.A. With rules and regulation and allotment policy which is attached as Annex R/3 with the writ petition, then L.D.A. Is prepared to consider their request in accordance with law; that action of respondents is clothed with authority and suffer from no legal flaw; that petitioners have no vested right to call in question the re-allocation of the plots; that it is not a case of modification of the Scheme and it is only a case of re-allocation of plots. As the plots in question were under constant threat of encroachment keeping in view this fact it was considered necessary to arrange this reallocation of the plots by the competent authority.
8. Mr. Atif Amin, Advocate appeared on behalf of private respondents and submits that petitioner- New Garden Town Society filed W.P. No. 5892-88 qua the aforesaid plot reserved for hospital which was subsequently had been withdrawn by the New Garden Town Society on 3.2.1991, therefore, writ petition is liable to be dismissed by virtue of the conduct of the petitioner; that action of respondent No. 1 is valid in view of Sections 14 and 38 of the L.D.A. Act, 1975; that respondent No. 1 did not modify the scheme and in fact re-allocate the plots. In support of his contention he relied upon Fazal Din's case (PLD 1969 SC 223); that respondent No. 1 had allotted the plots to the respondents on 24.9.1988, possession of the plots were also handed over to the private respondents by respondent No. 1 on 10.10.1988. The petitioners filed writ petitions on 14.10.1988. The principle of locus poenitentiae is attracted in all respects to the extent of private respondents in W.P. No. 5495-88 and W.P. No. 4297-79. In support of his contention he relied upon:-- (1992 SCMR 1420) (Muhammad Nawaz's case).
The respondents had already paid once of the plots to the respondent No. 1, therefore, respondents are bona-fide purchasers and the writ petition is not maintainable to the extent of private respondents in any case. He relied upon report and parawise comments of respondent No. 1.
Mr. Zahid Hamid Advocate submits that petitioner--Society (New Garden Town Welfare Society) filed W.P. No. 5892-88 on 5.11.19 83 qua the plot measuring 25 kanals, 8 merles 57 Sq.Ft which was reserved for Hospital. During the pendency of the writ petition respondent No. 1 allotted 11 kanals out of the said plot to doctor A.T. Naqvi for the said purpose and the petitioner had withdrawn the writ petition on 3.2.199 . He further submits that scheme was modified and infect the question of reallocation of plots is not borne out from the record and parawise comments. The case of Fazal Din relied upon by the learned counsel for the respondents (PLD 1969 S.C. 223) is distinguished on facts and law. He further submits that respondents did not reserve alternative , plots for the said purpose. He further submits that vested rights had already accrued to the petitioners at the time of allocating the plots for the said purpose and member of the petitioner Society were allotted/exempted plots by respondent No. 1. The Scheme was acted upon in letter and spirit. He further submits that ingredients of Section 41 of the transfer of, Property Act are not attracted and the principle of locus poenitentiae is also not attracted in the present case. In support of his contention he relied upon the following judgments:-- PLD 1983 S.C. 53 (Khanwal Nain's case).
1997 SCMR 315 (Ch. Muhammad Salim's case)
I have given my anxious consideration to the contentions of the learned counsel for parties and perused record myself. Firstly I would like to decide the preliminary objection 'raised by the respondents that petitioners have no locus-standi to file these writ petitions. It is admitted fact that petitioners Societies are resident of the same locality. Therefore, petitioners have locus-standi to file these writ petitions. In arriving to this conclusion. I am fortified by the 'law laid down by the following judgments of the Hon'ble Supreme Court:-- 1999 SCMR 2883 (Ardeshir Cowasjee's case). PLD 1969 S.C. 223 (Fazal Din's case).
The other objection that petitioner Society in W.P. 5495-98 had filed the writ petition No: 5892-88 and thereafter had withdrawn the same on 3.2.1991 has also no force on the ground that 11 kanals out of the plot in question in that writ petition was allotted to a doctor for the same purpose for which the plot was reserved. It is better and appropriate to reproduce the relevant provisions of Lahore Development Authority Act, 1975:-
14. Any scheme prepared under this Act may, at any time, be amended or modified by the Authority in the same manner as may be prescribed for the preparation of a scheme".
38. Any conversion of property to a different use or purpose than the one provided under a scheme, by a, person or agency, without the previous approval of the Authority in writing, shall be punishable with a fine which may extend to rupees five hundred per day from the date of its conversion till the default continues or with imprisonment for a term which may extend to one year or with both.
48. (1) The Lahore Water and Sewerage Authority Act, 1975, is hereby repealed.
(2) On the establishment of The Authority under this Act, the Town Improvement Act, 1922, shall cease to apply to the Area and all schemes, projects, or works started under the said Act but not completed, shall be. Taken over by the Authority and executed under the provisions of this Act.
(3) Notwithstanding the repeal of the Lahore Water and Sewerage Authority Act, 1975 and the fact of the Town Improvement Act, 1922, ceasing to apply to the Area:--
(i) All rules, regulations and orders made, notifications issued, land acquired, schemes prepared or executed, rates and fees imposed, penalties or other charges levied, contracts entered into, suit's instituted by or against Lahore Water and Sewerage Authority or the Lahore Improvement Trust or any other right accrued, or liability incurred or action taken, or proceedings initiated, shall so far as they are consistent with the provisions of this Act continue in force and be deemed to have been made, imposed, levied, entered into, instituted, prepared, executed, accorded or incurred, -taken and initiated under this Act;
(ii) The provisions of Sections 45, 56, 57, 58, 59, 60, 61, 62, 63, 64 and 65 cf the Town Improvement Act, 1922 shall continue to apply in so far as the acquisitions made under the Land Acquisition Act, 1894, are concerned and shall be deemed to have always applied
(iii) It is admitted fact that plots in question were reserved for Specific purpose for Welfare Center and public hall and school. It is also admitted fact that plots in the schemes were allotted to the people or exempted to the original land owners by respondent No. 1. The person who were allowed or exempted the plots by the respondents in the schemes had constructed the houses over their plots meaning thereby the schemes in question were implemented in letter and spirit. Once the scheme was acted upon then the respondent No. 1 has authority to change the same in terms of the aforesaid provisions of law which prescribes to invite the objections as the vested rights had accrued to the residents. The aforesaid provisions were interpreted by the superior Courts and laid down certain principles and guide lines for the authority which are as follows: in Muhammad Sharif's case 1989 MLD 95. This proposition was considered and the relevant observation is reproduced hereunder:-- "The Scheme aforesaid was acted upon by the petitioners and some of them also raised constructions at the site. The reduction of the width of the streets is a radical change in the scheme. Such alteration which is detrimental to the interest of the petitioners could not have been made without giving gem an opportunity of being heard, but they were not associated with such alteration. The alteration of the Housing Scheme is thus illegal. Further, by virtue of section 48 (3)(i) of the Lahore Development Authority Act, a Scheme made. Before its enforcement continues in force in so far as it is not inconsistent with the provisions of Act. No such inconsistency was pointed out to me on behalf of the respondent. On this ground as well, the impugned Scheme and its implementation suffers from a patent illegality.
Ahmad Javaid Shah's case 1996 CLC 748 and the relevant observation is as follows:-- "The Authority cannot convert public parks, open spaces, playgrounds or other amenity plots to other use or purpose e.g. Residential or commercial, for allotment to favorites of the party in power.
The internes of conversion of properties including amenity plots to different use for enrichment of the influentials are well known . The allotments of green-belts, open spaces and amenity plots as residential plots or for installing petrol pumps etc, by abusing power of conversion due to political manoeuvering of the parties in power have also been made. This menace of conversion of amenity plots needs to be curbed by taking away the power of conversion is respect of amenity plots. The Legislature may, therefore, add a provision in the LDA Act, 1975, to the effect that no amenity plot reserved for public utility services, beautification or environmental planning shall be converted to or utilised for any other purpose."
Masih Ullah Khan's case ( 1994 MLD 603) and the relevant observation is as follows:-- "In the present case, as admittedly the plot was reserved for the purposes of mosque, in all fairness, the respondents, before taking any decision regarding the, conversion of the purpose, must have heard the petitioners. In these circumstances, case deserves to be remanded to the respondents for re-considering after hearing the parties.
Mian Faza/ Din's case (1969 S.C. 223) and the relevant observation is as under:-- "It seems to me to be impossible to balance the income against cost for calculating the not cost of execution of the Scheme. In this view of the matter, it seems to me that the Trust was not wrong in taking the view that it could make the alteration or modification impugned, namely; the change of the user of part of the site without the previous sanction of the Government. The modification was neither of a radical nature nor fell within the mischief of section 43 of the Town Improvement Act."
"We may point out that even under, the Order, the K.D.A. Is not authorised to change the use of any amenity .Plot without inviting objections and without obtaining the order of the Government."
"It may be stated that inspite of presence of the above unambiguous Article in the Order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter a/ia parks and play-grounds which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into. Commercial or instead of constructing residential units in the form of Bungalows to erect flats.
"From the above quoted passage from Encyclopaedia Britannica, it is evident that the concept of modern city planning inter alia envisages the orderly arrangement of parts of the city residential, business and industrial etc. So that each part could perform its functions with minimum cost and conflict. The paramount object of modern, city planning seems to be to ensure maximum confronts for the residents -of the city by providing maximum facilities referred to hereinabove. It must, therefore, follows that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defeat the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others."
1999 SCMR 2883) and the relevant observation is as follows:-- "We may point out that even under the Order, the K.D.A. Is not authorised to change the use of any amenity plot without inviting objections and without obtaining the order of the Government."
By virtue of Section 48 of Lahore Development Act, provisions of Lahore Improvement Trust Act, are applicable unless and until the same are in consistent with the provisions of the Lahore Development Act, 1975. Therefore, Sections 13 and 14 and other provisions of Lahore Improvement Trust Act, 1992 are applicable. The aforesaid provisions cost duty upon the respondent No. 1 for the purpose of change in the Scheme the respondent had to invite objections . In arriving to this conclusion I am fortified by Sh.. t.
Ahmad Din's case (1984 CLC 3304). It is admitted fact that in the present case no objections were invited in terms of the aforesaid provisions., Therefore, person alleged the conversion of the ear marked plots for school and welfare center and public hall for residential purpose is illegal and contrary to the lay out plan of the LDA on the well known Principle when a thing is to be done in a particular manner, it must be done in that way and not otherwise. In arriving to this conclusion I am fortified by the judgments of the Hon'ble Supreme Court in (PLD 1971 S.C. 61) Atta Muhammad Qureshi's"case and 1991 SCMR 483 (Dr. Abdur Rauf and others case). In view of the aforesaid discussion and principles laid down by the superior Courts it is not a case of re-allocation of the scheme but it is a case of radical change/modification in the original schemes. Therefore action is not in consonance with the spirit of law. Respondent No. 1 has allotted some of- the plots to the private respondents before filing the writ petitions. The question arises in such situation principles of locus poenitentiae is attracted or not. The authority cannot convert reserved plots to other use for allotment to favorite or party in power as the. Respondent No. 1 had sold the plots in question to private respondents at very meager price as compared to the market price. In this view of the matter the principle of locus poenitentiae is not attracted as per principle laid down by the Hon'ble Supreme Court in Jala-ud-Din's case as the basic conversion of the reserved plots into residential plots is not in accordance with law. It is settled principle of law that when the basic order is without lawful authority then Ile super structure falls on the ground automatically as per principle laid down by the Division Bench of this Court and the Hon'ble Supreme Court in the following judgments:-- PLD 1982 Lahore 1 (Crescent Sugar Mill's case). PLD 1958 S.C. 104 (Yousaf A.I's case).
The ingredient of section 4 of Transfer of Property Act is also not attracted in view of the aforesaid circumstances. The judgments cited by the respondents' counsel are distinguished on facts and law and have no relevancy to resolve the present controversy.
It is pertinent to mention here that W.P. No. 5641-88 was filed by petitioner through Syed Fayyaz Hussain Qadri, Advocate, who did not enter appearance on any date. Office also sent various notices to the petitioner for appearance but petitioner did not turn up. It is better and appropriate to reproduce order of this Court passed by this Court in aforesaid writ petition on 23.10.1988.
A question has been put to the learned counsel as to whether or not the petitioner is interested in user of the plot in dispute as a community Hall or for some other purpose. He prays for adjournment to seek instructions."
Thereafter writ petition was fixed on various dates but petitioner's counsel or petitioner did not enter appearance.