1983 PLP 3091 (CLC)

Kh. Muhammad Tufall for Appellants. Sh. Atta‑ur‑Rehman for Respondents Nos. 1 to

3. Fayyaz Hussatn Qadri for the L. M. C. Date of hearing : 6th February, 1983. On the 28th August, 1946 the Governor of the Punjab, in exercise of , tae powers conferred on him by subsection (5) of section 260 of the City of Lahore Corporation Act, 1941, sanctioned the Town Planning Scheme drawn up by the Lahore Corporation for the land of Messrs Industrial Corporation and Shirimati Chanan Devi situate in Krishan Nagar, off Sanda Road, Lahore. 'The portion of the land in dispute, forming part of the land of the scheme, was reserved to be used as a park and building operations thereon were permanently prohibited. However, respondents I to 3 managed to get plan for erection of building thereon sanctioned by the Lahore Corporation. The sanction was cancelled by the Commissioner, Lahore Division, on the appeal preferred by some of the appellants and other owners of plots in the scheme. As respondents I to 3 were adamant to translate into practice their design of setting up buildings on the land in question the appellants instituted suit for issuance of permanent injunction restraining them from doing so. The relief relating to imposition of restraint upon them in matter of alienation of the land was not seriously pressed before this Court.

2. The contesting respondents 1 to 3 took, up the plea that the scheme had been amended and that the appellants had no locus standi to bring the suit.

3. The learned trial Civil .fudge, Lahore, dismissed the appellant's suit on the 30th April, 1978, and the learned Additional District Judge, Lahore, dismissed their appeal on the 23rd May, 1970. The learned trial Civil Judge was not satisfied with the existence of the scheme or with its amendment. He was reluctant to accept the appellants' plea that the land in question had been earmarked for a park. He thought that the appellants had no personal right to bring the cause and that they could have sued for public nuisance for which prior consent of the Advocate General, which they had not obtained, was necessary. Therefore, he non‑suited them. The learned Additional District Judge, endorsing the findings of the learned Civil Judge, expressed the view that the scheme had been abandoned and it had not been implemented."

4. The factual position is quite contrary to the findings of the learned Courts below. The Governor of the Province gave valid sanction to the scheme in dispute the appellants and others purchased plots, built their houses thereon and the scheme was implemented. No order of any competent authority amending the scheme was produced by respondents 1 to

3. Also there is no material on the record which could establish that the scheme had been abandoned in any manner. How the learned Courts below formulated their views touching the non‑implementation and abandonment of scheme remains inexplicable.

5. In view of what has been observed by the Supreme Court in Mian Fazal Din v. Lahore Improvement Trust, Lahore P L D 1969 S C 223 and by the Court in Saeen Muhammad v. Government of the Punjab P L D 1979 Lab. 67, the appellants, who purchased their plots in the scheme to live there, with the clear indication that they would use the land in dispute as part; which lies near their residences, had the right to object to the setting up of construction which was not permissible to be raised. The judgments of the learned Courts below are not legally maintainable. The appeal is accepted, the impugned judgments and decrees recording dismissal of the appellants' suit are set aside and a decree of perpetual injunction restraining respondents 1 to 3 from raising any sort of building on the land in dispute is passed in favour of the appellants and against respondents' I to

3. The appellants will get their costs throughout from respondents 1 to

3. M. Y. M. Appeal allowed.