1985 PLP 1922 (CLC)

This judgment will dispose of the following writ petitions as common question of law and facts are involved:- (1) Writ Petition No. 1753 of 1984. (2) Writ Petition No. 1778 of 1984. (3) Writ Petition No. 1870 of 1984. (4) Writ Petition No. 1910 of 1984. (5) Writ Petition No. 1954 of 1984. (6) Writ Petition No. 1999 of 1984 and (7) Writ Petition No. 2000 of 1984.

2. The petitioners in the connected writ petitions obtained plots of different sizes from the Lahore Development Authority through private negotiations in the scheme known as Model Town Extension Scheme. In most of the cases purchase price was paid but small amounts were due from some of them. The only exceptions being Muhammad Anwar Chaudhry petitioner in Writ Petition No. 1999 of 1984 who had yet to pay Rs.3,01,553.33 and Waqar Ali Shah petitioner in Writ Petition No. 1910 of 1984 and Ihsan Elahi petitioner in Writ Petition No. 1778 of 1984 who were to pay Rs.37,818.35 and 36,620 respectively. While the formal agreements had, yet to be executed the Lahore Development Authority cancelled the sale. Letters, dated 18th of April, 1984, were issued to all the petitioners except Muhammad Akram, to whom the letter was issued on 25-4-1984. Soon thereafter, the petitioners challenged the cancellation of the sale, in different writ petitions. During the course of the proceedings in the writ petitions the Lahore Development Authority with the permission of the Court informed the petitioners that the main reason for cancellation of the sales was the violation of Martial Law Instruction 23 under which sales could be made only through open auction and not through private negotiations.

3. The learned counsel for the petitioners has argued that the violation of Martial Law Instruction No. 23 which was communicated to the petitioners only on 5-2-1984 was an afterthought and that the action of the L.D.A. was mala fide and that it was masterminded by the present Director Estate Management who has an axe to grind against his predecessor. It has also been argued that M.L.I. 23 was only a one time exercise and related to the cases of allotments made between 1-7-1977 and 17-8-1977 when M.L.I. 23 was actually issued. It has also been argued that under section 6 of the Lahore Development Authority Act, 1975, the Lahore Development Authority was competent to sell the plots in any manner, including private negotiations.

4. As regards the mala fides and, the invoking pf Martial Law Instruction No. 23 as an afterthought, the original record produced by the Lahore Development Authority narrates a different story. An annonymous letter, dated 29-1-1984 was received by the present Director-General of the Lahore Development Authority to the effect that 50 plots, the sale of which had been rejected by General Ansari, the then Director General were again transferred by the acting Director-General, during the temporary absence of General Ansari, in collusion with a Director who was to relinquish his post the following day. On receipt of this letter the Director-General on 22-3-1984 asked for a list "of all the plots allotted or sold by negotiations (not auctioned) immediately after the departure of General Ansari". He also asked for "the name of D.E.M. who put up the case to the acting Director-General". It was in pursuance of the orders of the Director-General that the cases were examined and on a note submitted by the Deputy Director, the Director Estate Management ordered the cancellation of the sales on 1show4-4-n1983to. This record clearly shows that the violation of M.L.I. 23 was not an afterthought and that the case had been processed much before the petitioners came to the High Court in writ petitions. As regards the mala fides, it has been pointed out that favour has been shown to some persons by the present Director Estate Management to whom plots have been transferred through negotiations. He has pointed out the cases of plots Nos. 46-N, 184-A and 125-N. The Lahore Development Authority in their reply have submitted that these cases were distinguishable as the purchasers of plots in the cases have paid the latest auction price and that the L.D.A. was willing to show the same concession to the present petitioners if they were willing to pay the difference of the auction price of that period and the price actually paid by them. In my opinion the three cases referred to by the learned counsel might also be in violation of M.L.I. 23 inasmuch as the plots have been transferred through negotiations but there is no discrimination towards the petitioners as the concession given to these persons is being offered also to the petitioners. The learned counsel appearing on behalf of the Lahore Development Authority has stated that the offer has been made to the petitioners with the best intention and for the reason, that, if the loss incurred by the Lahore Development Authority, was made up, the L.D.A. will be willing to show grace to the petitioners, and to all those persons whose sales have been cancelled on account of violation of M.L.I.

23. In view of the above considerations the contention of the learned counsel for the petitioners that the L.D.A. has acted mala fide in invoking Martial Law Instruction No. 23 and, that, it was an after thought, is without merit.

5. Martial Law Instruction No. 23 has the force of law. It is of general application and not a one-time exercise as advocated by the learned counsel for the petitioners. A plain reading of Martial Law Instruction No. 23 shows that the allotments made by the Lahore Development Authority after 1-7-1977 stood cancelled except for those' allotments which had been made through open auction. For future it was provided that 65 per cent of the plots shall be sold by open auction while 35 per cent plots were to be transferred through different allocations. The petitioners' cases do not come under any one of the allocation of the 35 per cent of the plots referred to in Martial Law Instruction No.

23. Under this instruction the disputed plots could be sold only by auction. This condition has been violated. The transfer of the plots in favour of the petitioners was void, and therefore could not be acted upon. The Lahore Development Authority has only taken note of it and has cancelled the sale.

6. The learned counsel for the petitioners has argued that the sale by private negotiations by the Lahore Development Authority is permissible under section 6 of the L.D.A. Act. While it is true that the relevant provision does give powers to the Lahore Development Authority to transfer the property even by private negotiations but this law has to be read along with Martial Law Instruction No. 23 which provides for sale only by auctions in the case of 65 per cent of the plots. As long as M.L.I. 23 is in force that the powers of the Lahore Development Authority will have to be limited to that extent.

7. The principle of audi alteram partem has also been invoked by the petitioners. This, however, is not attracted in the circumstances of the present cases. Sale itself being void there was no right existing in favour of the petitioners which was being taken away by the Lahore Development Authority.

8. In view of the above considerations, I find no merit in these writ petitions. They are dismissed, but there shall be no order as to costs. M.Y.H. Petitions dismissed.