2005 PLP 413 (CLC)

Ch. Khurshid Ahmad for Respondents Nos. 2 to

11. Date of hearing; 16th December, 2004. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, declaration is sought that "plots Nos.221 and 288 of the sanctioned plan of Sikandar Block, Allama Iqbal Town, Lahore cannot be allotted to any person for either residential or commercial purposes, Since they must be utilized for the purpose of providing to the people of the area a Community Centre, Park and a Poly Clinic". According to the learned counsel for the petitioner once a Scheme has been launched and sanctioned and a site has been earmarked for public utility purpose, it cannot be put to any other use and the Lahore Development Authority cannot alter the same in order to accommodate the respondents by allotting them residential plots. The petition has been opposed and contested by the Lahore Development Authority as also the other respondents.

2. The learned counsel for the Authority contends that the Authority has not acted contrary to law and indeed has acted pursuant to the directions of this Court made in W.P. No.7940 of 1996 and that under the law i.e. Lahore Development Authority Act, 1975 it has got powers to amend and alter the Scheme in public interest. The learned counsel for the rest of the respondents has highlighted the circumstances in which late Ch. Mehraj Din the predecessor of respondents Nos.2 to 11 had been litigating for his rights being owner of a chunk of land there and contends that his successors have merely been compensated for the land, which was once a private housing Scheme established by Ch. Mehraj Din deceased in the year 1958. In order to state the background of the litigation and the right to be compensated, reference has been made to Ch. Mehraj Din and others v. Lahore Improvement Trust, Lahore through the Chairman PLD 1986 SC

673. The said judgment concerns the litigation, which commenced with the filing of suit by late Ch. Mehraj Din decades ago for recognition of his right.

3. There is no denial of the fact that Ch. Mehraj Din, the predecessor‑in‑interest of the respondents had drawn up a private scheme in the Revenue Estate of Mauza Bhekaywal, Lahore, which eventually fell within a scheme known as 2000 Acre scheme, finally named as Allama Iqbal Town, Lahore. After the litigation about the same ended with the judgment of the Honourable Supreme Court of Pakistan dated 18‑6‑1986, reported as PLD 1986 SC 673, statedly negotiations for settlement between the successors of Ch. Mehraj Din and the Authority materialized and agreements dated 8‑9‑1991, 2‑11‑1991 and 12‑2‑1992 were arrived at. As a sequel, they were to be given exempted plots on payment of development charges settled between the parties. Due to procrastination in the matter on the part of the Authority, the successors of Ch. Mehraj Din had to file W.P. No.7940 of 1996 for direction to honour and abide by the agreements and undertaking in accordance with law. That petition was disposed of by the learned Chief Justice of this Court on 15‑10‑1998, with the observations and directions contained in that order, which reads as under:‑‑ "According to the letter issued by the Deputy Director Exemption‑1, Lahore Development Authority, bearing No.1DA/DDE/4400/602/12897 dated 13‑8‑1998, all the formalities regarding issuance of possession letter in favour of the petitioner has been completed but the possession could not be delivered on account of certain formalities. It has been assured that the delivery of the possession also be processed as early as possible. In view of the letter referred to above, the petition has borne fruit, which is accordingly disposed of with the direction to the respondents to deliver the possession as well within one month. " It is thus, quite evident and clear that the Authority was obliged to accommodate the respondents by giving them exempted plots, which were to be arranged/carved out by it. It was indeed pursuant to judicial decisions of the Court.

4. At this juncture, reference to Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and perusal thereof would show that the ratio of the said judgment is that a resident of a Scheme when deprived of a facility is vested with the right to maintain a petition for enforcing the relevant agency "to discharge its obligation of executing the scheme". It may be observed that in the precedent case Mian Fazal Din who had constructed a House on Plot No.86‑E/1 in Gulberg III Scheme had come up with the grievance that Plot No.94‑E/I in Gulberg III Scheme had been earmarked in the sanctioned Scheme for the construction of a market for the convenience of the residents of the locality and this was the main consideration which had induced him to purchase Plot No. 86‑E/I and to build a house thereon and that the plot earmarked for the market being practically opposite to his purchased plot was said to be a special attraction for him as he expected "to open a branch of his iron and steel business in the said proposed market". It was his case that but for this special attraction he might not have purchased Plot No.86‑E/I at all. The High Court had dismissed his petition for lack of locus standi, the Honourable Supreme Court of Pakistan, however, observed that the petition could be maintained by him but on merits it was held that the "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".

5. In the comments filed by the Lahore Development Authority, in this case a similar stance has been taken that "due to non‑availability of plots the Director Town Planning L.D.A. has revised the Scheme plan with the prior approval of the competent authority in compliance of the order of the High Court in Writ Petition No.7940 of 1996" and that "the authority is fully competent to amend its Scheme in accordance with law and in the public interest". It is further stated that "the instant amendment was carried out to settle the order of Lahore High Court for allocation of plots to land owners in Allama Iqbal Town, Lahore in W.P. No.7940 of 1996". The learned counsel, for the Authority has referred to section 14 of the Lahore Development Authority Act, 1975 to contend that the Scheme could be modified at any time. Such a wide ranging proposition aimed at to authorize and empower the Authority to change, alter or modify a sanctioned Scheme cannot be countenanced as the law does not give an unbridled or unfettered power. Even the provisions of section 14 of the Act can be invoked and used by following the procedure i.e. "in the same manner as may be prescribed for the preparation of a scheme". It may be observed that in the instant case the Authority did not act without any justification or in any arbitrary manner inasmuch as it was acting pursuant to the judicial orders/decisions by the Courts. It, therefore, cannot be held that it acted without lawful authority in making alteration in the Scheme as it had to carve out plots where the rightful owners of the land were to be adjusted. It may be observed that plots Nos.221 and 288 the conversion of which the petitioner objects, are neither in front of his Plot i.e. 239 nor are closely located/adjacent to it. His case is not even at par with the case of Mian Fazal Din (supra). It need to be clarified and observed that in the modern city planning trends, sites for the use of public i.e. Parks and. Community Centres etc. are considered as a necessity. Earmarking/reservation and development of such sites serve the larger interest of the public at large and the residents of the locality in particular. As observed above, the instant case had a peculiar background and the action of the Authority has been upheld due to the special circumstances prevailing in the same. 5‑A. In the circumstances stated above this petition is dismissed accordingly with no order as to costs. M.B.A./M‑791/L Petition dismissed.