2007 PLP 953 (SCMR)

CH. IJAZ AHMED, J.

The petitioners have sought leave to appeal against the judgment of the Lahore High Court dated 14-5-2002 wherein the learned High Court had refused to set aside the judgment passed by the First Appellate Court in favour of the respondent while exercising power under section 115, C.P.C.

2. Brief facts out of which the present petition arises are that the respondent filed a. suit for permanent injunction with the prayer for restraining the petitioners/defendants permanently from auctioning the open space adjacent to the Commercial Plot No.10, Block No.1 Area Development Scheme, Sargodha in the Court of Civil Judge 1st Class, Sargodha. The contents of the plaint reveal that the respondent purchased the said plot in the said scheme commonly known as New Settelite Town in open auction @ Rs.33,500 per Marla. The auction was held by the petitioners after due publication in the newspaper with full details of the plot in question. The contents of the plaint further reveal that petitioner keeping in view the beauty and utility of the open space had purchased commercial plot at much higher price. Subsequently, the petitioners/defendants had changed the site plan and were bent upon to dispose of the open space: The petitioners filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed six issues. The learned trial Court dismissed the suit vide judgment and decree dated 17-11-1993. Respondent being aggrieved filed appeal-in the Court of Additional District Judge, Sargodha who accepted the same and set aside the judgment of the trial Court and also held as under:-- "Disputed space which is shown as an open space shall remain as open space and no other right would be created in favour of the appellant in respect of that portion except that the same shall remain as such."

3. Petitioners being aggrieved filed civil revision in the Lahore High Court which was dismissed by the learned High Court as mentioned above. Hence, this petition.

4. The learned counsel for the petitioner submits that learned Courts below had erred in law to accept the suit of the respondent without adverting to the ground realities as the petitioners had changed the scheme in question subsequently to the auction of the plot in question whereas the trial Court was justified to dismiss the suit of the respondent.

5. We have given our due consideration to the contentions of the learned counsel for the petitioners and have perused the available record. It is admitted fact that respondent had purchased the plot in question @ Rs.33,500 per Marla. Similarly, another Commercial Plot No.7 with an open space on its front fetched the price of Rs.36,000 per Marla whereas the remaining plots not having any open space on their fronts, fetched price at the lesser rates ranging approximately from Rs.18,000 to Rs.22,000 per Marla. Therefore, such huge differences in the prices of plots depict that the plots with open space on their fronts fetched almost the double price of the ordinary plots because of the extra amenity of open space attached to the said plots. Exh.P.5 site plan was prepared and sanctioned subsequent to the auction of the plot in question and in this site plan the open space available in front of plot in question has also been proposed to be converted into commercial plots. The learned High Court after re-examining the record upheld the findings of the First Appellate Court in paragraph No.5 of the impugned judgment. Both the Courts below had given concurrent findings of fact that the plot in question was auctioned in accordance with law in open space to the respondent whose bid was highest which was accepted and approved along with the open space in front of the plot in question. The petitioners have no lawful authority to change the master plan subsequently on the well-known principle of estoppel and waiver as law laid down by this Court in Ghulam Rasool's case PLD 1971 SC

376. The judgment of the learned High Court is in accordance with law laid down by this Court in various pronouncements. See Abdul Razzaq's case PLD 1994 SC

512. The relevant observation is as follows:-- "Goals of Modern City Planning.

The ultimate goals were social although the plans themselves related to physical things. They were deeply involved with intermediate economic objectives. The expression of the goals was, of course, coloured by the culture of the society seeking them. In the U.S. and countries following western European traditions, the ideal urban environment would reconcile the maximum opportunity for individual choice with protection for the individual from the adverse effects of the actions of others. Within this philosophy, city planning would probably seek; (1) the orderly arrangement of parts of the city

residential, business, industrial, etc., so that each part could perform its functions with minimum cost and conflict; (2) an efficient system of circulation within the city and to the outside world, using to the maximum advantage all modes of transportation; (3) the development of each part of the city to optimum standards, as of lot size, sunlight and green space in residential areas, and parking and building spacing in business areas; (4) the provisions of safe, sanitary and comfortable housing, in a variety of dwelling types to meet the needs of all families; (5) the provision of recreation, schools and other community services, of a high standard of size, location and quality; (6) the provision of adequate and economical water supply, sewerage utilities and public services. In any community, these goals might be supplemented by special goals, such as the preservation of a historical area, or the protection of property values, or the efficient conduct of Government. On occasion, the goals of some powerful special interests might be inconsistent with those of others; e.g., the preservation of slum property values and the provision of adequate housing. Furthermore, the statement of ideal goals required the use of relative terms, such as "adequate", "high standard", etc., which are relative rather than absolute, and change from time to time. Therefore, inherent the concept was the recognition that an ideal is not a fixed objective, but itself will change; that the ideal city. can be striven toward, but never achieved. 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 comforts for the residents of the city by providing maximum facilities referred to hereinabove. It must, therefore, follow that a public functionary entrusted with the work to achieve the above objective cannot act in a manner, which may defect the above objective. Deviation from the planned scheme will naturally result in discomfort and inconvenience to others. Respondent No.3 in the above-quoted paras.15 to 17 of the memo. of petition has rightly highlighted that the Society in which the plot is situated was planned on the assumption that a 273 sq. yards would have normal residential units .and not flats."

6. The aforesaid judgment was again reaffirmed by this Court in Ardeshir Cowasjee's case 1999 SCMR 2883. The aforesaid proposition of law is also supported by the following judgments: (i) Dr. Zafarullah Ch.'s case 2004 YLR 1672 and (ii) New Garden Town's case 2001 CLC 1589.

7. For what has been discussed above, the petition has no merit which is dismissed. Leave refused. M.H./P-7/SC Petition dismissed.