2005 PLP 2668 (YLR)

I intend to decide the following revision petitions by one consolidated order having similar facts and law: (i) C.R. No. 489-2001, (ii) C.R. No. 2409-2002.

2. The brief facts out of which C.R. No.489 of 2001 arises are that the disputed property, plot measuring 1-Kanal bearing Khasra No.3071, Khewat No.1026, Khatooni No.2090 situated at Mauza Bekhewal Tehsil and District Lahore, was owned by Syed Ijaz Hussain. He executed an agreement to sell in favour of Mst. Haleema Bibi, mother of the petitioners. The original owner also executed an irrevocable General Power of Attorney in favour of Kh. Muhammad Sharif. The land in question was acquired by L.D.A., respondent No.1 for developing a residential scheme namely Faisal Town, Lahore. The Land Acquisition Collector L.D.A. announced the award after completing legal formalities in favour of respondent No.3. Respondents Nos.1 and 2 granted and exempted Plot No.55-D in favour of respondent No.3 in the said scheme. The petitioners-plaintiffs allegedly deposited the development charges on the requirement of respondents Nos.1 and

2. Respondent No.1 executed an agreement, dated 10-10-1989 for exemption of the plot and till the possession to the predecessor- in-interest of the petitioners. Respondents Nos. 1 and 2 approved the building plan of the petitioners. The predecessor-in-interest of the petitioners spent about Rs.6,00,000 and constructed a house over the disputed plot. The mother of petitioners-plaintiffs died on 14-1-1985 leaving behind the petitioners as her successors-in-interest. Respondents Nos.1 and 2 issued letter, dated 28-1-1985 with regard to the cancellation of the allotment in favour of respondent No.3-defednant No.3. The respondents were also bent upon to interfere in the possession of the petitioners-plaintiffs over the plot in question. The petitioners-plaintiffs being aggrieved filed a suit for declaration and permanent injunction in the Court of Civil Judge 1st Class, Lahore on 5-2-1985 with the prayer seeking decree of declaration to the effect that the petitioners-plaintiffs are bona fide purchasers without notice and respondents-defendants Nos.1 and 2 have no authority to issue notice, dated 28-1-1985 and respondents be permanently restrained from implementing the same in any manner and the impugned notice is without lawful authority. Respondents-defendants Nos.1 and 2 filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether the plaintiff has no cause of action and locus standi for the present suit? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is bad for non-joinder of necessary parties? OPD (4) Whether this Court lacks jurisdiction to entertain and try this suit? OPD (5) Whether impugned notice issued by the defendant No.2 is illegal and void? OPP (6) Relief. The learned Civil Judge dismissed the suit vide judgment and decree, dated 6-11-1994. It is pertinent to mention here that the learned counsel of the petitioners did not attach the judgment impugned in C.R. No.489-2001 of the trial Court. However copy of the same is attached in C.R. No.2409-2002. The petitioners being aggrieved preferred an appeal before the learned Additional District Judge, Lahore, who dismissed the same vide judgment and decree, dated 8-12-2000.

3. The brief facts out, of which C.R. No.2409-2002 arises are that the disputed property, Plot No.56-D measuring 1-Kanal bearing Khasra No.3071, Khewat No.1026, Khatooni No.2090 situated at Mauza Bekhewal Tehsil and District Lahore, was owned by respondent No.3 Muhammad Inayat, who sold the land in question to the petitioner for a consideration of Rs.25,

000. The land in question was acquired by the L.D.A. Authorities for it residential scheme known as Faisal Town, Lahore. The Land Acquisition Collector, L.D.A. announced the award quo the land in question. Respondent No.3 executed an agreement to sell in favour of the petitioner with regard to the land in question, who also executed an irrevocable General Power of Attorney in favour of the predecessor-in-interest of the petitioner with regard to the exemption of the plot and to transfer the same in the name of the petitioner. Respondents Nos. 1 and 2 granted and exempted Plot No.56-D in favour of petitioner-plaintiff in the said scheme on 9-9-1978. Respondents Nos.1 and 2 also directed the petitioner-plaintiff to deposit the development charges amounting to Rs.12,

500. The petitioner-plaintiff allegedly deposited the development charges. Respondent No.1 also handed over the possession of the plot in question to the petitioner-plaintiff. The petitioner-plaintiff submitted the building plan to respondents Nos.1 and

2. Respondents Nos.1 and 2 approved the building plan of the petitioner. The petitioner constructed a house over the disputed plot. Respondents Nos.1 and 2 issued letter, dated 18-11-1984 with regard to the cancellation of the allotment in favour of respondent No.3-defendant No.3 and threatened to demolish the construction over the plot in question. The respondents were also bent upon to interfere in the possession of the petitioners-plaintiffs over the plot in question. The petitioner-plaintiff being aggrieved filed a suit for declaration and permanent injunction in the Court of Civil Judge 1st Class, Lahore on 5-2-1985 with the prayer seeking decree of declaration with permanent injunction to the effect that the petitioner-plaintiff's is bona fide purchasers without notice and respondents-defendants Nos. 1 and 2 have no authority to issue notice, dated 18-11-1985 to the petitioner-plaintiff and respondents be permanently restrained from implementing the same in any manner and the impugned notice is without lawful authority. Respondents-defendants Nos.1 and 2 filed written statement, controverted, the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether the plaintiff has no cause of action and locus standi for the present suit? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is bad for non joinder of necessary parties? OPD (4) Whether this Court lacks jurisdiction to entertain and try this suit? OPD (5) Whether impugned notice issued by the defendant No.2 is illegal and void? OPP (6) Relief. The learned Civil Judge dismissed the suit vide judgment and decree, dated 6-11-1994. The petitioner being aggrieved preferred an appeal before the learned Addl. District Judge, Lahore, who dismissed the same vide judgment and decree, dated 8-12-2000. It is pertinent to mention here that the learned counsel of the petitioner did not attach the judgment and decree passed by the trial Court in the case of the petitioner, in C.R. No. 2409-2002 of the trial Court and attached copy of the judgment and decree passed by the trial Court in Imtiaz Khalid's case. However copy of the same is attached in C.R. No.489-2001.

4. The learned counsel of the petitioners submits that petitioners are bona taken action against the petitioners without providing personal hearing to the petitioners. They further urge that petitioners had already constructed houses over the plots in question and the principle of locus poenitentiae is attracted but this fact was not considered by both the Courts below. They further submit that judgments of both the Courts below are result of misreading and non reading of the record. They further submit that land in-question was acquired by respondents Nos.1 and 2 under the Land Acquisition Act without any encumbrances over the land in-question. The land in-question was originally allotted to the respondents Syed Ijaz Hussain and Muhammad Inayat under the Settlement Laws. The allotment of the aforesaid private respondents were cancelled by the Assistant Commissioner vide order, dated whereas the petitioners have purchased the land in-question from the private respondents before the said order, therefore, impugned orders of the respondents are hit by the principle of natural justice. They further submit that Evacuee Laws were repealed by Evacuee Trust Properties (Management and Disposal) Act, 1975 and Act XIII of 1975, therefore, assumption of jurisdiction by the Assistant Commissioner and order, dated 29-6-1981 in without lawful authority. They further submit that clause (19) inserted in the agreements to sell is void in view of violation of sections 21, 51 and 41 of the Transfer of Property Act and provisions of Act XI of 1855 Mesne Profit and Improvement Act, 1855, therefore, order of the Assistant Commissioner after the repealed of the evacuee laws is not sustainable in the eye of law. In support of their contention, they. relied upon Mst. Bushra Begum v. Settlement Commissioner (1998 MLD 442) and Kareem Bux v. P.O. fide purchasers and the respondents have Sindh and others (1998 CLC 27). They further submit that the principle of bona fide purchaser was not properly decided by both the Courts below. In support of their contention, they relied upon Ijaz Ahmad and others v. Mst. Deeba Nawaz and others (1994 SCMR 397). They further urge that respondents No.1 and 2 have no lawful authority to issue the impugned notices to the petitioners on the well-known principle of estoppel and waiver. In support of their contention they relied upon Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641). They further urge that order, dated 29-6-1981 is without lawful authority, therefore, superstructure shall have to fall on the ground. In support of their contention they relied upon Syed Wajih-ul-Hassan Zaid v. Government of Punjab and others (1997 SCMR 1901), Abdur Rashid v. Chief Administrator Auqaf and others (1989 CLC 1119), Mooso through Legal Heirs and 2 others v. Allanditto through Legal Heirs and 7 others (1999 CLC 798).

5. The learned counsel of the respondents Nos. 1 and 2 submits that both the Courts below have given concurrent finding of fact against the petitioners in terms of clause (19) of the agreements executed between the parties. The title of the original owners was declared bogus vide order, dated 29-6-1981 and the order, dated 29-6-1981 was passed by the competent authority after providing proper hearing to all the concerned specially the original owners. The petitioners have to fall under the foot-prints of the original owners, therefore, respondents Nos. 1 and 2 are not duty bound to issue notices to the petitioners before taking any action against the petitioners. He further submits that respondents Nos. 1 and 2 have acquired the land on the basis of the Revenue Record and subsequently title of the original owners was defective, therefore, action of the respondents is in accordance with law. The petitioners approached the Civil Court with unclean hands, therefore, the Courts below were justified non-suited the petitioners. In support of his contention he relied upon Messrs Vulcan Company (Pvt.) Ltd., Lahore through Managing Director v. Collector of Customs Karachi and others (PLD 2000 SC 825). He further submits that in view of clause (19) in the agreement. Section 41 of the Transfer of Property Act is not attracted in the present case.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

7. It is admitted fact that land was acquired by respondents Nos. 1 and 2 for purpose of floating a residential scheme. The Land Acquisition Collector of the L.D.A. announced the award in favour of the original owners. The petitioners purchased the land in-question from the original owners through agreement to sell. The original owners have also executed General Power of Attorneys in favour of the petitioners for the purpose of transfer of the plots in-question in the name of the petitioners. The petitioners submitted applications for transfer of the plots in their name. The applications of the petitioners were accepted by the respondents. The respondents issued notices to the petitioners to deposit the development charges, which the petitioners have deposited. The petitioners submitted site-plan to construct the building over the plots in-question, which were accepted by the respondents. The title of the original owners was declared by the Assistant Commissioner defective vide order, dated 29-6-1981. It is pertinent to mention here that all the aforesaid events happened much before the order of the Assistant Commissioner, dated 29-6-1981. It is also admitted fact that impugned orders were .passed by respondents Nos. 1 and 2 against- the petitioners on the basis of order of the Assistant Commissioner, dated 29-6-1981 without issuing any notice to the petitioners. It is settled principle of law that principle of natural justice must be read in each and every statute unless and until the same is prohibited by the wording of the statute itself as the law laid down by the Honourable Supreme Court in Commissioner of Income Tax v. Fazlur Rahman (PLD 1964 SC 410). The orders were passed by respondents Nos. 1 and 2 against the petitioners without issuing notice to the petitioners, therefore, impugned judgment of the Courts below are without lawful authority as the same are hit by the principle of natural justice as the law laid down by the superior Courts in the following judgments:-- Pakistan Chrome Mines v. The Enquiry Officer (PLD 1983 SC 1208), Pakistan and others v. Public at Large (PLD 1987 SC 304) and University of Dacca v. Zakir Ahmad (PLD 1965 SC 90). It is settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. It is pertinent to mention here that the petitioners purchased the land in-question, which was transferred by the respondents in favour of the petitioners before the order qua the title of the original owners was declared void by the Assistant Collector vide order, dated 29-6-1981. Vested rights have accrued to the petitioners as the law laid down by the Honourable Supreme Court in Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652). It is settled principle of law that once the vested right has accrued to the petitioners then the respondents cannot take away the vested rights of the petitioners without issuing notices to the petitioners. The Judgments of both the Courts below are not in consonance with the law laid down by the Honourable Supreme Court, therefore, both the Courts below committed material irregularity as the law laid down by the Honourable Supreme Court in Kanwal Nain's case (PLD 1983 SC 53) and Shaukat Nawaz's case (1998 SCMR 851).

8. In view of what has been discussed above, the impugned judgments of the Courts below are set aside. Consequently, suits of the petitioners are decreed on technical ground that the impugned orders were passed against the petitioners without issuing notice to the petitioners, therefore, respondents are at liberty to proceed against the petitioners in accordance with law. With these observations, the revision petitions are disposed of. M.I./I-29/L Order accordingly.