1979 PLP 622 (SCMR)

The appellant claims that thereupon two arbitrators were nominated by the parties who unanimously held that the Trust was liable for providing and constructing an approach road to the plot for the appellant, but they differed on the question of the liability of the Trust to pay damages. Thereupon an umpire was appointed and his award was filed in the Court. Upon objection having been raised by the Improvement Trust the Civil Court set aside the award. Thereupon the appellant preferred an appeal before the High Court which was, however, dismissed by a learned Judge by his order dated the 18th May, 1973. Leave to appeal was granted by this Court on the 13th of June, 1974, to examine the contention that the High Court was in error in holding that there was no provision in the agreement of sale for reference to arbitration of a dispute of the present nature, as clause 6 of the agreement of sale appeared to be wide enough to cover such a dispute. During the course of the hearing of this appeal an order was made by us on the 17th of October, 1977, appointing the District Judge, Rawalpindi, as Local Commissioner to inspect the spot in the presence of the parties or their representatives and also in the presence of the allottee of the adjoining Plot No. 55 or her representative, and to submit the report within four weeks as to the best way of finding an approach to the disputed Plot No.

53. In pursuance of this directive the leaned District Judge, Rawalpindi, submitted his report to this Court on the 3rd. of May, 1978, stating that the disputed plot is at a height of about 40 feet from the Hall Road and the Murree Improvement Trust has provided a passage to the same, which comprises of 57 steps from the Hall Road. The District Judge has expressed the opinion that "It will be very difficult to carry building material to the said plot from this passage. As such, in my opinion, this passage.. is very inconvenient to the appellant." He has further stated that there are two other passages which pass through Plot No. 55, and they would be convenient for the appellant, but as they are the private property of the allottee of ''Plot No. 55, it would be necessary for the Improvement Trust to acquire the same under the law if so permitted, so that they could be available for the use of the appellant. The matter has now been examined by us in the light of the report submitted by the learned District Judge, Rawalpindi, and the submissions made by the learned counsel for the parties. It transpires that during the pendency of the dispute regarding the provision of a suitable approach road or passage to the disputed plot, the Murree Improvement Trust has resumed the plot for the reason that the appellant had failed to construct a building thereon, in accordance with the terms and conditions of the allotment. The appellant has challenged the resumption by filing a civil suit which is still said to be pending. The learned counsel for the appellant submits that this was, indeed, an unusual step to take for a public authority, when it was fully seized of the dispute regarding the provision of a suitable passage, which alone could enable the appellant to undertake the construction of a house on the plot in question. During the course of the discussion the appellant, who is present in person, has stated that in order to finish all the disputes between the parties, which have now been going on for nearly 25 years, since the allotment of the plot in 1954, he is prepared to accept the present passage given by the Improvement Trust comprising of 57 steps, provided the Improvement Trust is prepared on its part, to rescind the resumption of the plot from his name, which was solely based on a reason which arose due to the failure of the Improvement Trust to provide the necessary passage. He states further that he would then endeavour to make his own private arrangement with the allottees vendees of Plot No. 55 for carrying building material to his plot, as this cannot be conveniently done over 57 steps as provided by the respondent. The learned counsel appearing for the respondent are agreeable to the suggestion made by the appellant regarding the settlement of this dispute by him by accepting the passage already provided by the Improvement Trust ; but states that since resumption the plot has been put to auction and purchased by Messrs Itifaq Limited. In the circumstances, they are not in a position to make any firm commitment on the question of the restoration of the plot, as it would need the approval of the trustees in accordance with the relevant provisions of law. However, Mr. Sirajul Haq, senior counsel, for the Improvement Trust states at the Bar that he has no hesitation in saying that he would make the necessary recom mendation to the Trust, so as to finish all the disputes between the parties in an amicable and just manner. He further states that he has also taken instructions from the Deputy Commissioner, Rawalpindi, who is Ex -officer Chairman of the Improvement Trust, and the latter has agreed to place the matter before the Trust. After hearing the statement made by the learned counsel appearing for the Murree Improvement Trust, the appellant and his counsel state that the present appeal may be disposed of in the terms that the appellant agrees not to demand any other passage except the steps provided by the respondent, but this arrangement shall be without prejudice to his right to the restoration of the plot, which dispute is still pending in the Civil Court. The appeal is disposed of in the above terms, with liberty to the appellant to apply for its revival in case his grievances are not redressed on the lines above mentioned. The parties are left to bear their own costs. Order accordingly.