1991 PLP 483 (SCMR)

AJMAL MIAN, J.‑‑‑By this common order, we intend to dispose of the above two petitions as leave is sought against a common judgment dated 29‑4‑1978 of a Division Bench of the Lahore High Court passed in Writ petition No.1079 of 1972 and Writ Petition No. 1783 of 1972, allowing the above petitions and declaring the two orders passed by the Government of Punjab dispensing with the prohibition of building operation provided for in the Schemes referred to hereinbelow read with clause (h) of section 260 of the City of Lahore Corporation Act, 1941, hereinafter referred to as the Act, under which Section the two housing schemes in question were approved.

2. The facts to be noted are that respondents Nos.1 to 4 in the above first petition, who were the purchasers of residential plots in the scheme referred to hereinbelow, filed Writ Petition, No.1783 of 1972 impugning the Government of Punjab's order dated the March, 1971 whereby sanction in relaxation of the Town Planning Scheme was accorded for ultilising the open space measuring 1 Kanal 17 Marlas and 205 sq‑ feet by converting it into residential plots by the petitioners in the above first petition. The background was that in year 1955 or near about a Town Planning Scheme under section 260 of the Act was approved upon application made by K.B. Rahim Bakhsh, the predecessor‑in‑interest of the petitioners situated on Farid Kot Road, Lahore. It may be observed that in Part 11 of the Scheme, hereinafter referred to as the Scheme, reservation of lands was provided for and clause (3) provided two types of lands, the one which was coloured red on the plan showed streets other than public streets and widening of existing streets, the other was coloured green which was land in respect of which it was provided that the building operation shall be permanently prohibited. The above open space measuring 1 Kanal 17 Marlas and 205 sq. feet fell within the latter category. Respondents No.1 to 4, therefore, filed aforesaid writ petition for impugning the above order. Whereas Writ Petition No.1079 of 1972 was filed by one Sain Muhammad and two others, who were the purchasers of plots in the Scheme referred to hereinbelow challenging the Government of Punjab's order dated 6‑1‑1971 approving the utilization of the open space measuring 6 Kanals 19 Marlas and 185 sq. feet in the Akram Park Scheme which was approved at the behest of the owner of the land, Malik Nur Elahi, under Section 260 of the Act. This Scheme also contained reservation of land of two types referred to hereinabove while narrating the facts of above first Writ Petition No.1783' of 1972. The above open space measuring 6 Kanals 19 Marlas and 185 sq. feet fell under the aforesaid second category in respect of which it was provided in the Scheme that building operation shall be permanently prohibited. In view of the above relaxation by the Punjab Government, the aforesaid three persons riled the above second writ petition.

3. The above writ petitions were resisted by the framers and or their legal heirs of the Schemes inasmuch as it was contended that the above Schemes were in respect of private land in which neither the Government nor the purchasers of the plots had any right or interest in respect of open space of which relaxations were obtained. However, a Division Bench of the Lahore High Court by the impugned judgment allowed the above two writ petitions in the above terms. The above first petition has been tiled by the respondents in Writ Petition No. 1783 of 1972, whereas the above second petition for leave has been riled by the petitioners in the above Writ Petition No.1783 of 1972.

4. In support of the above first petition, Mr. Bashir Ahmad Ansari, learned A.S.C. appearing for the petitioners, has vehemently contended that since the High Court has held that the open space in question vests in the petitioners, the private respondents had no locus standi to object to the use of the above land by the owner in view of the fact that the petitioners' aforesaid housing scheme was a private scheme in which neither the Lahore Corporation nor the Punjab Government had any right or interest. The above contention is devoid of any force as admittedly the Scheme was approved under Section 260 of the Act, copy of which is on record (Annexure 'A' at page 45). Part II of the Scheme provides as follows:‑‑ "PART‑2 RESERVATION OF LANDS.

11. The several areas of land specified in column (1) of the following Table shall be reserved for the respective purposes as indicated in column (2) of the Table. Indication on the drawing of the lands reserved Use for which the lands shall be reserved Coloured red Streets (other than public streets) and widening of existing streets. Coloured green Lands on which building operations shall be permanently prohibited." The open space in question as pointed out hereinabove fell under the category of the land which was reserved and shown on the plan in green colour i.e. land on which building operations shall be permanently prohibited.

5. In our view, the petitioners after having obtained approval of the Scheme under Section 260 of the Act cannot urge that the same is not under the above Section. The High Court has concluded on the above aspect as follows:‑‑ "Section 260 provides an elaborate procedure for initiating a scheme, inviting and hearing of the objections, submission of the proposal to the Government and its acceptance. The jurisdictional facts necessary for making reservation under clause (h) have been enumerated with particularity. Application from no particular individual is necessary as for the framing of the scheme. All the same, the hearing of the objections, the formulation of the proposal, its consideration and acceptance by the Government and what is more its basis is one of the statutory requirements is necessary. In this case admittedly that procedure has not been followed either on the direction of the Government or independently by the Lahore Corporation. Further it has not been shown nor held by tile Government that the removal of the prohibition contained in clause (h) followed the disappearance of the ground or factor which necessitated the prohibition. In the absence of express power to that effect and in view of the restrictions contained in General Clauses Act, it was incumbent to adopt the proper procedure and also to spell out the satisfaction of the jurisdictional requirement. That having not been done the impugned action suffers from legal defect not only in form but in substance as well:" No exception can be taken to the above conclusion. It cannot be denied that the private respondent had locus standi in terms of the celebrated case of this Court, namely, Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223, in which Hamoodur Rahman, C.J. inter alia observed that the right sufficient for maintaining a proceeding in writ petition is not necessarily a right in the strict juristic sense, but it is enough if the applicant discloses that he had personal interest in the performance of the legal duty which had not been performed in manner required by law. The petition has, therefore, no merits.

6. Mr. Zakiuddin Pal, learned Sr.A.S.C. in support of the above second petition for leave, has urged that the High Court was not justified in holding that the private respondents remained the owners of the above open space though the petitioners had purchased respondents' plots on the basis of their approved Scheme which contained above open space on which the construction was permanently prohibited. However, he has not been able to point out any provision of any law on the basis of which it can be concluded that the ownership of the above open space was divested from the framer of the Scheme who owned the land in respect of which the Scheme was framed. We may observe that it is a different matter whether the purchasers of the residential plots have acquired any easement or other rights in respect of the above open space as the above question could not have been adjudicated upon in a writ petition besides the fact that the same was not involved. This petition has also no merits. We would accordingly refuse leave in both the above petitions. A.A./A‑797/S Leave refused.