I intend to dispose of the following writ petitions by one consolidated order having similar facts and law: Writ Petition No,9534 of 1999, Writ Petition No,13819 of 2000,Writ Petition No, 1745 of 2001, Writ Petition No, 11727of 1999, Writ Petition No, 10634 of 1999.
Writ Petition No,9534 of 1999.
Brief facts of the case are that Muhammad Amin petitioner No,1 claims that he purchased a piece of land in Khasra Nos,4725-Min, 4726 Min, 4730 Min, 4742 Min, Hadbast Mauza Sheesh Mahal Tehsil and District Lahore measuring 6 Marla 210 sq. ft through registered sale-deed, dated 13-8-1972.
Mutation was sanctioned in the Revenue Record on 29-3-1974 to this effect. The petitioner No,1 constructed, according to him, two houses on the said land. Latter on one house was sold to Mian Fazal (petitioner) predecessor-in-interest of Mst. Balqees Begum etc. Petitioners in Writ Petition No,13819 of 2000 petitioners claim that they opposed Mian Marghoob Ahmad respondent No,2 in the elections who had the grudge against them and due to his influence in the office of respondent No,1, a notice was issued in 1995 for the demolishing of the house comtrtuoted by the petitioners that it was c;:daslrucied without any site plan sanctioned by respondent. No, 1 . The petitioner No,1 in compliance with the notice submitted a site plan which was rejected and not approved by respondents. The petitioners filed civil suit in the Civil Court which was pending and during the penedency of the civil suit the house of the petitioner was demolished in the year. 1997 whereas the house of Mian Fazal. Elahi was not demolished and the petitioner had been discriminated.
According to the petitioners in 1998 Malba of the said demolished house was also removed and the plot was emerged in Children Park but subsequently Mian Fazal Elahi was accorded the sanction of the site plan on 16-11-1998. The petitioners claims that property has been grabbed under the garb of Children Park and construction of fountain over it on the pretext to beautify the Children Park hence pray for declaring the acts of the respondents as illegal and unlawful and for issuance of writ to show the authority under which they have grabbed the two properties of the petitioners also their discriminatory treatment meted out to the petitioners at the hands of the respondents. It is further prayed that the respondents be directed to immediately release the two properties of the petitioners and to reasonably compensate the petitioners.
Writ Petition No, 13819 of 2000 Petitioners claim that their father. Fazal Elahi, purchased a house from Muhammad Din petitioner No,1 in the above said writ petition and after 20 years of the sale Fazal Elahi received a notice on 6- 4-1995 under section 78(2) of the Punjab Local Government Act, 1979 on the ground that house has been constructed without submitting a site-plan and without its approval. Direction was issued to submit the site-plan. According to the petitioners direction was complied with but site-plan was rejected on 24-12-1995 on the ground that this land has been declared as an-open space of Mian Ameer-ud-Din Scheme. Petitioners filed an appeal before the Commissioner against the rejection of the site-plan but the appeal was disposed of with the direction to file an appeal before the Lord Mayer. The ,petitioners filed appeal before the Lord Mayor which was not decided for two years and the petitioners were constrained to file Writ Petition No,29046 of 1997 which was disposed of by this Court on 10-12-1997 with the direction to Mayer to dispose of the appeal of the petitioners but even then the appeal was not decided filed by the predecessor-in-interest of the petitioners. The Contempt application was filed which has also .disposed of with the direction that the matter will be disposed of by the Mayor within one month. On 11-11-1998 the Mayor of the MCL accepted the appeal and directed that the site-plan of the petitioners be approved. This order was challened through petition by the respondents Nos,2 and 3 before the respondent No,
1. Respondent No,1 referred the matter to Director, Local Government for enquiry and thereafter the Commissioner while considering the same as an appeal decided the same vide order, dated 1-1-1998 passed by the Mayor sanctioning site-plan of Mian Fazal Elahi predecessor-in-interest of the petitioners was set aside on the ground that the place where the house has been constructed was an open space and the petitioners were encroachers and vide order, dated 2-5-2000, the Commissioner accepted the appeal which is impugned in this petition.
Writ Petition No, 1745 of 2001.
In this case, the husband of the petitioner died on 1-12-1977 at Lahore who had purchased 5 Marlas plot from Ploi No,170 Min, naval No,6839/4731/1 Min situated at Mouza Sheesh Mahal, Ravi Road, Tehsil and District, Lahore and sale-deed was executed on 19-12-1974 which was duly entered in the office of the Sub-Registrar and mutation was sanctioned on 8-9-1977. Unfortunately, the husband of the present petitioner died and the mutation of inheritance was sanctioned in favour of the legal heirs. The afore-said plot was part of the scheme known as Mian Ameer-ud-Din Scheme which was duly sanctioned and approved by the Governor of the Punjab through Notification, dated 14-6- 1955. It is mentioned in the writ petition that the portion of the plot owned the petitioner was part of Plot No,285 measuring 2 Kanals which was subdivided into 6 parts and were subsequently sold out to different persons, and it was purchased by the petitioner's predecessor-in-interest for residential purposes. The building plan was also sanctioned in favour of Muhammad Zubair who was the original owner of the said plot. After the death of the predecessor of the petitioner, the petitioner intended to construct the residential house over her piece of land but in 1998 the petitioner was astonished to know that the aforesaid plot of the petitioner has been included into the grassy plot/park by the field staff of respondent No, 1 . The petitioner filed an application to the Teshildar for the demarcation of her poor. The application was duly entered and after the demarcation the report was submitted showing that the portion of the plot of the petitioner has been included in the grassy park. The petitioner approached the respondents and requested a number of times that her plot is not the part of the grassy park as stated by them but respondents have not taken any action and rather have not allowed the petitioner to construct over the piece of land purchased by her predecessor-in-interest. Writ Petition No, 11727 of 1999 Muhammad Amin-ul-Haq petitioner has prayed for retraining the respondents to immediately release the Plot No,165 situated at Mauza Sheesh Mahal, Lahore and also to remove and stop further construction of the wall being constructed illegally and without lawful authority for the purpose of park.
2. Briefly the facts of the case are that the ancestors of the petitioner from three generations back owned 75 Kanals of land in Mauza Sheesh Mahal which was divided according to the share- holders. Subsequently in 1977-78 Abdul Ghani and other brothers planned for their share of the land afore-said to be divided in plots for the purpose of sale to different persons and a site-plan commonly known as Mian Muhammad Baksh was designed leaving though space for roads and streets and drafted and they started selling the plots through registered sale-deeds. The mutations were also sanctioned in the Revenue Record. The petitioner reserved Plots bearing No,165 in Khasra Nos,4725, 4726, 4730/46 measuring 12 Marlas for himself and till this time the petitioner is shown to be the owner of the said portion of the plot but some persons of the neighbouring were litigating with respondents and filed writ petitions which were disposed of by this Court and some of the writ petitions are still pending and common point involved is that the portions of the land of the petitioners have been grabbed by the respondents without any legal sanctity and had converted this parcel into "children park". The boundary wall has also been constructed over including the piece of the land of the petitioner.
Writ Petition No,10634 of 1999 The petitioner has prayed for same relief that the act of respondent No,1 grabbing the plot of the petitioner No,285 Block No,4 'Karim Park, Ravi Road, Lahore be declared illegal and further prayed that respondent No,1 be directed to pay the petitioner reasonable compensation.
2. The petitioner claims that he purchased piece of land measuring 3.3/4 (3-3/4) Marlas described as Plot No,285, Block No,4, Amir-ud-Din. Scheme, Ravi Road, Karim Park, Lahore through registered sale-deed which was duly sanctioned in the Revenue Record. The site-plan of the plot of the petitioner was approved on 29-12-1976. In 1993 petitioner intended to construct over the plot but was astonished to know that almost the entire plot has been merged into a grassy plot - and illegally occupied by the officials of the respondent No,1, Legal notice was served by the petitioner but no action has been taken qua the plot in question.
3. The stand of the respondents Muncipal Corporation is that Town Planning Scheme regarding the land of Mian Amir-udDin and other situated in Mauza Sheesh Mahal was prepared by Lahore Improvement Trust in 1952 and an area of approximately 884 Kanal was approved for the said scheme vide Government Notification, dated 14-6-1955. In 1958 after sanction of the original scheme Mian Amir-ud-Din submitted a revised residential scheme to the Lahore Improvement Trust by which he requested the size of the plot for the scheme for 1 to 2 Kanals to be reduced to 10 to 12 Marlas. The owners of the adjoining land Mian Abdul Aziz also requested the Lhore Improvement Trust to include their land in the said scheme. Lahore Improvement Trust forwarded the revised residential scheme and passed it on 31-10-1967 and land of the other landowners , adjoining to the land, of Mian Amir-ud-Din was also included. The revised size development scheme was sent for approval to the Government and Government of Punjab itself revised the scheme on 29-8-1970 through letter addressed to the Commissioner Lahore Division. After the approval of the scheme same land share-holders including Mian Muhammad Anwar from whom Muhammad Din petitioner purchased poots including the plot of predecessor-in-interest of Mst.
Balqees Bibi requested the Secretary Lahore Improvement Trust for cancellation of the scheme but the request was not accepted vide letter, dated 8-3-1975. According to the Lahore Municipal Corporation in 1978 some unauthorised persons started encroachments on the open spaces of the scheme. The residents of the Karim Park requested Commissioner Lahore for removal of the encroachments from the open spaces. Commissioner Lahore Division vide letter, dated 1-11-1978 directed to conduct the inquiry. Subsequently the Government also had received all the complaints a High Level Committee was constituted to probe into the matter and the findings of the Inquiry Committee were that only scheme in 428-B by the Government on 14-6-1955 and amended by the Government on 29-8-7-70 and it has been established beyond doubt that the scheme was amended in 1970 in the final scheme, therefore, all the plots/spaces reserved for special welfare purposes, and directed to recover the same land from the encroachers and used the same for the specified purpose. No doubt the open spaces under reference was not provided in the original scheme in 1955 but it was provided in the revised scheme in 1970 and new area was included in the revised scheme. On 28-2-1995 the resident of the Karim Park submitted an application in which the complaint was made against Muhammad Din and other petitioners as they had encroached upon the open spaces of Amir-ud-Din Scheme and requested for the removal of the scheme hence Amir-ud-Din and Fazal Elahi were served with a notice and they are directed to submit site plan which according to the Corporation has rightly been rejected. Both the encroachers Muhammad Din and Fazal Elahi filed civil suit in which status quo orders were passed which were subsequently withdrawn and his house was demolished and subsequently Fazal Elahi applied for the sanction of the plan which was accepted by Mayor and order of the Mayor was set aside in appeal by the Commissioner the competent Authority and the petition according to the Municipal Corporation is not liable to be accepted and is liable to be dismissed as the open spaces are for the beautification of the scheme and for the welfare of the general public. The private respondents have raised certain objections about the maintainability of these writ petitions on the ground that the civil suits were filed which were dismissed and on the same question the writ petitions are not maintainable and these facts have been concealed by the writ petitioners Mst. Balqees Begum and Muhammad Din. However, no reply has been filed in the other writ petition. The reply was filed in the writ petitions and the other writ petitioners have also been denied their right to construct over the plots due to the inclusion of the plots in the grassy plots.
4. On the other hand learned counsel for Muhammad Din contends that the plot was purchased and was constructed according to the Revenue Record. One house was sold to Fazal Elahi. They were living and after 20 years of the construction of the house notices were served upon them to submit the site-plan for approval which was submitted and it was in accordance with the prescribed rules but was rejected due to the intervention of the private respondents who were inimical to the petitioners and it is further contended that no revised scheme was sanctioned in 1970 and same could not be produced any where hence in order to grab the property of the petitioners under the garb of open spaces the petitioners have been deprived of their valuable properties without any compensation awarded to them even if it is admitted that their properties were included in open spaces. It is further contended that their houses were demolished and the house of Fazal Elahi was not demolished and his site plan was subsequently accepted and was sanctioned duly. The discriminatory treatment has been given to the petitioners. The respondents could not include the plot of the petitioner in open spaces without giving him alternate plot or the compensation at the market price. Action of the respondents is illegal and they may be directed not to restrain the petitioner from constructing the house over his piece of land.
5. Learned counsel appearing on behalf of Mst. Balqees Begum has argued that only one appeal was available under the Local Government Ordinance which was filed against the rejection of the site plan and was accepted by the Lord Mayer and site plan of the petitioner was sanctioned. No appeal lies against the approval of sanctioned plan, thus decision of the Commissioner which is impugned in this writ petition was without jurisdiction and without lawful authority and is liable to be set aside.
6. Learned counsel appearing on behalf of Muhammad Din petitioner has argued that the revised sanctioned scheme was not duly sanctioned and this story has been concocted just to deprive the petitioners from their valuable properties. Open spaces admittedly were not provided in the .original scheme. Petitioners have not been compensated and their land has been grabbed by the concerned authorities under the grab of open spaces without payment of compensation. Action of the respondents is liable to be declared illegal and they may be directed to restrain to interfere into the possession of the petitioner and demolishing the' house constructed over through predecessor-in-interest.
7. Learned counsel appearing on behalf of the Mst. Parveen Akhtar has also adopted the arguments of the learned counsel for the other writ petitioners and has further contended that the revised scheme story has been introduced in order to grab their properties. The petitioners have been deprived of their valuable properties without any compensation. No Notification for declaring the same so under the Land Acquisition Act has been issued. No compensation has been paid to them; and the properties having been included in the open spaces in an illegal manner, the petitioners have a right of construction over the properties and the Constitution guarantees the petitioners for the protection of their properties which cannot be taken away in the manner by which the respondents had taken the same.
8. Learned counsel appearing on behalf of the Amin-ul-Haq petitioner has also adopted the arguments of the learned counsel for the earlier writ petitioners and has also prayed for the acceptance of this writ petition.
9. On the other hand learned counsel appearing on behalf of MCL has opposed .the acceptance of these writ petitions and denied the allegations that the revised scheme was not sanctioned. He argued that the revised scheme was sanctioned and the original papers were misplaced but subsequently the copies were supplied and produced in this Court in the earlier writ petition pending before my learned brother Khalil-ur-Rehman Ramdy, J. It is further contended that the open spaces have been left in the scheme which were not part of the original scheme for the welfare pf the majority of the people who were residing there. The interest of the majority have to be kept in mind against the interest of a single person. Need of open spaces and the park cannot be denied which have rightly been included in the revised sanction plan. Petitioners have never raised this objection and cannot raise this objection at this belated stage. Petitioners Muhammad Din and Mst. Balqees etc. are encroachers. They have constructed their houses without the sanction plan and the house of Muhammad Din was rightly demolished and house of Fazal Elahi could not be demolished due to the pendency of the civil suit and the issuance of status quo by the civil Court. No discriminatory treatment has been given to Muhammad Din as same show-cause notice was also issued to Fazal Elahi but it could not be acted upon due to the status quo order. It is further contended that the plots of the other petitioners are part and parcel of open spaces left for the welfare of general public hence the writ petitions are liable to be dismissed.
10.Learned counsel appearing on behalf of TEPA has argued that the history of this case is incorrect but they had constructed a fountain in the park for the beautification of the same and has nothing to do with the properties of the petitioners or the Amir-udDin Scheme. However, learned counsel appearing on behalf of respondents Nos,2 and 3 have opposed these writ petitions on the ground that the writ petitions are not maintainable. The filing of the civil suit and the dismissal of the same is a bar in maintaining these writ petitions and it is further contended that the petitioners have not approached this Court with clean hands. Scheme was revised and it was the need that the open spaces should be left for the welfare of the general public and for the health of the residents of the locality.
11. I have heard the learned counsel for the parties and also perused the documents attached with these writ petitions. The consistent stand taken by the MCL is that Mian Amir-ud-Din Scheme was revised in 1970 in which the open spaces were left and incidentally the spaces were purchased by the petitioners. Hence notices were issued to Fazal Elahi and Muhammad Din for the domolishing of their houses as these houses were constructed without the sanction of the site-plan. Though the factum of revised scheme is denied by the petitioners and they claimed that this fact has been introduced in order to grab their properties and to deprive them from their plots. According to them it is an admitted fact that in the scheme which was originally sanctioned, the open spaces were not left for this purpose. It is a question of to which cannot be resolved in writ jurisdiction and requires the recording of evidence. As far as the filing of the civil suits by the petitioners for permanent injunction and their dismissal subsequently according to the respondents Nos,2 and 3, cannot be a bar in issuance of writ as new questions have been raised in these writ petitions filed by Muhammad Din and Mst. Balqees Begum etc. They constructed the house on their plots and remained their in possession till 20 years without any interference but they were directed to submit the site-plan which were submitted and were rejected due to the reason that this place is part and parcel of the children park which has been introduced in the revised scheme. There is no denial that Muhammad Din and Fazal Elahi predecessor-in-interest of Mst. Balqees Begum were owners of land on which they had constructed their houses. In the comments filed by the Corporation and the respondents Nos,2 and 3 and even during the arguments by these respondents, it has not. been stated that lands of the petitioners were acquired for the purpose of open spaces or for children park and any procedure was adopted under the Land Acquisition Act for this purpose.
Petitioners had a right to retain the property owned by them and they could not be deprived of their valuable property without adopting the legal course provided under the Land Acquisition Act or without providing them alternate spaces with their consent for the land of which they have been deprived. Petitioners cannot be deprived of their property as their sites had been fallen in the open spaces without compensating them. The respondents are also silent that any procedure was adopted to compensate these landowners; and other writ petitioners who had been deprived of their valuable property. No proceedings have been initiated even under the Land Acquisition Act, 1894. Hence the non sanctioning of the site-plan of petitioner Muhammad. Din and acceptance of the appeal respondents Nos,2 and 3 by the Commissioner through the impugned order under the garb that their spaces had fallen in open spaces is based on unlawful and unreasonable grounds which are not sustainable under law. Site plan submitted by the petitioner could only be rejected if it was in violation of the rules prescribed for the construction of the house for a special scheme and not on the reason that their space had fallen in the children park. As their land has not been acquired properly and they had not been paid the compensation. In such circumstances I have no option to accept all the writ petitions as the respondents have not denied the ownership of the petitioners over the lands which have been included in the Park through the revised scheme and Park has been duly constructed and if the respondents want that the Park should remain in the scheme then the respondents under sections 23 and 24 of the Land Acquisition Act are bound to negotiate with the writ 'petitions and pay them the compensation to the extent of their lands on the market value of the land which shall be concluded in accordance with sections 23 and 24 of the Land Acquisition Act, 1894 taking into consideration potential value of the land. The Division Bench of this Court in case of Ali Akbar v. The Land Acquisition Collector, Rawalpindi (1999 CLC 29) has held that according to law, the amount of compensation was, necessarily, to be deposited in proportionate before the award and in toto immediately on award to make payment to the landowners. This is strange that the land of appellant was acquired without deposit and payment of compensation. Thus, the appellant is entitled to the payment of compensation on the above rate with interest at the rate of 8% per annum from the date of award under section 34 of the Land Acquisition Act, 1894." The Supreme Court of Pakistan in Khudah Bakhsh's case (1999 SCM R 1589) has held that "the respondent-Authorities were bound to take into account the potential value of the lands in question during the time that the orders, dated 12-3-1973 and 30-8-1973 were made by the Deputy Commissioner, C.D.A. and Commissioner, D.D.A. respectively. The Award of D.0 was appropriately amended by respondent-Commissioner, C.D.A. and consequential increase in the price brought to bear on the award in relation to lands of the appellants. In the absence of any legislation by incorporation making the provisions of sections 23 and. 24 of the Land Acquisition Act
(ibid) applicable with retrospective effect, the appellants cannot press into service the afore mentioned provisions in their case".
12. As the respondents were not empowered to grab the property owned by the writ petitioners without payment of compensation to them by including the same in the scheme for the purpose of Park, the compensation shall be paid to the petitioners within 60 days from the receipt of this judgment, the Municipal Corporation/District Nazim shall decide the issue and if they are not in a position to pay the compensation at the market value then the petitioners shall be allowed to construct heir houses on their lands after sanction of the site-plan if site.-plans are submitted in accordance with by laws of the scheme. It will be, however, open for the concerned authorities to decide the issue whether the petitioners are the real owners or not through a speaking order in case of any dispute regarding the title of the petitioners over the said land.
Disposed of with these observations.