P L D 1993 Lahore 933 (PLP)

This revision petition arises out of a suit for , declaration and permanent injunction filed by the respondent on 10-10-1969 in the Civil Court Lahore. The plaintiff/respondent claimed absolute. ownership of land measuring 6 Kanals, 4 Marlas and 65 sq. ft. bearing Khasra Nos.5181/ 5182/2/2/12 and 5182/2/2/11, situated in Mauza Ichhra, Tehsil and District Lahore which came under the ' University Campus (Garden Town) Development Scheme, Lahore. The suit was resisted by the Lahore Improvement Trust (predecessor-in-interest of the petitioner) inter alia, on the ground that by virtue of the agreement (Exh.P.1) entered into between the parties, the respondent was bound to surrender proportionate share of land for roads and open spaces or pay its price.

2. On the pleadings of the parties the trial Court framed the following issues: (1) Whether the amount demanded by the defendant by way of acquisition charges (in fact development charges) and costs of excess amount is illegal ? O.P.P. (2)Relief After recording evidence of the parties and perusing the same the trial Court held that the stipulation for surrendering land for roads and open spares was contained in the recital part of the agreement Exh. PI and did not form part of the conditions of the contract, hence it *as -not enforceable. Resultantly, the respondent's suit was decreed by the trial Court vide the judgment and decree dated 21-12-1974. The appeal filed by the petitioner was dismissed by the learned Additional District Judge, Lahore vide his judgment and decree dated 4-11-1980.

3. The petitioner's learned counsel strenuously urged that by virtue of the agreement Exh. P1 the respondent was bound to surrender land for roads and open spaces in the Scheme or to pay cost for the same. He added that the respondent was not the owner of the entire land but only of "plot" measuring 5 Kanals, 3 Marlas and 1W sq.ft. For the excess I Kanal and 160 sq.ft., the respondent was bound to pay the price demanded by the petitioner. He further submitted that the respondent had failed to pay the cost of land measuring I Kanal and 160 sq. ft. Hence by virtue of condition No. 10 the contract became void and no claim could be based thereon by the respondent. On the other hand the respondent's learned counsel urged that the respondent was supposed to pay only the development charges and was not bound to pay cost of the so called excess area. He urged that by virtue of condition No. 1 of the agreement Exh.P.1, the Lahore Improvement Trust had abandoned acquisition of the disputed property. He added that the petitioner had no choice to carve out a smaller plot out of the, respondent's land. Moreover, no part of the land was ever needed for roads etc. The Lahore Municipal Corporation and the petitioner allowed the respondent to raise i construction over the entire land. The building plan was duly sanctioned by the Lahore Municipal Corporation on 24-10-1962. The petitioner had also demanded development charges from the respondent in respect of the entire land and thus treated her as owner of the same. The respondent had paid development charges in respect of the entire land. He further urged that the mere recital in the agreement was not enforceable as it did not form part of conditions of the contract. He pointed out that the roads etc. had already been carved out when the agreement was entered into between the parties on 9-8-1962 and no part of the respondent's land was actually required by the petitioner for the said purpose. He emphasised that since respondent's land was not acquired by the L.D.A. the general conditions governing the acquired area were not applicable to the land in question. 4. 1 have given anxious consideration to the arguments raised by the learned counsel - for the parties and perused the record with their help. Admittedly the respondent's land is situated in the area which has come under the University Campus (Garden Town) Development Scheme. Hence, in the normal course, it was liable to be acquired by the Lahore Improvement Trust. The Scheme was yet at the initial stages when the respondent desired to raise construction over the land measuring 6 Kanals, 4 Marlas and 65 sq. ft. (purchased by her in the year 1961). Accordingly, an agreement was entered into between the Lahore Improvement Trust (the predecessor-in-interest of the L.D.A) and the respondent on 9-8-1962. The recital part of the agreement reads as under: "And whereas sanction of the Government under section 41 of the Punjab Town Improvement Act, 1922 (equivalent to section 6 of the Land Acquisition Act, 1894), has not so far been obtained by the First Party and the Second Party is keen to construct upon her aforesaid land and has applied to the First Party accordingly undertaking to share the cost of development of the scheme and to surrender, free of cost, her proportionate share, the land required under roads and open spaces or shall pay the cost of land required for roads and open spaces as her proportionate contribution to the scheme to which the First Party has agreed." It was not, embodied in the conditions of the contract so as to make it operative. Out of ten conditions of the contract conditions Nos.1, 2, 3, 5 and 6 are pertinent to the controversy between the parties and are reproduced below for ready reference:-- "(1) The First Party shall abandon the acquisition of the aforesaid land bearing Khasra No. 5181/5182/2/2/12 and 5182/2/2/11, measuring 6 K 4M 65 s.ft and allow the second party to construct upon plot comprising in Khasra No. 5181/5182/2/2/12 and 5182/2/2/11 measuring 6K 4M 65 s.ft. (2) The Second Party shall pay on demand within 15 days of the date of intimation therefore to the First Party amount of development charges for the abandoned land (6K 4M 65 s. ft.) at such rate as the First party may fix in due course, regardless of the execution of any works in the scheme. (3) the area actually included in the aforesaid plot will be deemed to be the area abandoned by the First party and on which development charges are to be received by the First party. (5) If any area is left over, and above the area included in the plot comprising in Khasra No.5181/5182/2/`2/12 and 5182/2/2/11 and the area surrendered for roads and open spaces "as stated above" it will be acquired by the Land Acquisition Collector, 1=9 Area, the Lahore Improvement Trust for the purpose of the scheme in the usual course after the sanction of the scheme. (6) Within a period of four years from the date of execution of this agreement the Second party shall build upon the aforesaid plot a building in accordance with the Bye-law and schedule of clauses after getting her building plan sanctioned by the First party Lahore Municipal Corporation." . At the end of the agreement, the -schedule of the property is given as under: "All that piece of land forming plot comprising in Khasra No.5181/2/2/12 and Khasra No. 5181/2/2/11, situated in tentative plan of scheme (execution part) known as University Campus (Garden Town) Development Scheme with an area 6K 4M 65 s.ft. of thereabout bounded as follows-- NORTH: Open land. SOUTH Plot No. 94 and portion of Plot No.91, EAST Street 40 ft. wide. WEST: Open land and shown in the attached plan marked red, The above-referred conditions of the. contract and schedule of the property show that:-- (i) The Lahore Improvement Trust had agreed to abandon acquisition of the entire land measuring 6K 4M 65 s.ft. (ii) The entire land was the abandoned land on which development charges were payable by the respondent. The respondent was to be allowed to raise construction upon the "Plot" comprised in KhaL:% Nos. 5181/5182/2/2/12 and 51K/2/2/11, measuring 6K 4M 65 Lft. (iii) if the area of the plot is reduced then the excess area surrendered for roads etc. shall be acquired by the Land Acquisition Collector. The Schedule of the property shows that the entire piece of land formed the plot. (iv) Construction was to be completed by the respondent within one year in accordance with the by-laws and schedule of the property, after obtaining sanction of the map from the Lahore Municipal Corporation. z I It appear , that the Lahore improvement Trust had agreed in the very beginning that the area of the respondent's plot shall remain as 6K 4M 65 s.ft, That is why it had agreed to charge development charges for the entire land which was shown as the abandoned land in condition No.2 of the contract and no attempt was made at any subsequent stage to reduce the area of the plot before a building was constricted thereon. The respondent duly obtained sanction of the plan from the Lahore Municipal Corporation on 24-10-1W, and thereafter completed the building in accordance with the schedule of the property given at the end of the agreement. The schedule lends support to the ,contentions of the respondent's learned counsel that the respondent's entire land was treated as the "plot" and that the roads and streets etc. had already been carved out. The schedule of the. property shows 40 ft. wide street on the eastern side of the respondent's plot. Therefore, when contract was acted upon and the respondent had raised construction over the entire land belonging to her, it was not open to the petitioner to reduce the area of the plot or demand petitioner the so-called excess area allegedly surrendered for roads etc. Condition No.5 of the contract reproduced above, is itself conditional. It says: "if any area is left over and above the area included in the plot ...........Since the entire area was treated as the plot, the respondent was allowed to raise construction within one year from the date of the agreement according to the building plan sanctioned by the Lahore Municipal Corporation and the map was sanctioned for the, entire area, the question of any excess area or its surrender for road and open spaces did not arises. the recital of the agreement neither its operative part nor enforceable under the law. Of course, it can be referred to as a key to find out the real intention of the parties and to clarify some ambiguity in tow conditions of the contract. Condition No.5 could have been invoked by the petitioner, had any step been taken to reduce the area of the respondent's plot or the respondent been required to surrender the excess area for purpose of roads and open spaces. Moreover, there is no condition in the contract that if the respondent fails to surrender the excess area, if any, then she can be required to pay the cost thereof Hence, the part relating to payment of cost which is contained only in the recital of the agreement, is neither enforceable nor relevant for clarifying condition No.5 of the contract. In the case of Hamid Bakhshu v. Md. Irahim Meah PLD 1956 Dacca 132 (Referred to by the respondent's learned counsel), three rules for construction of a document have been stated. These are: (i) If the recitals are clear and the operative part is ambiguous the recitals govern the construction. (ii) If the recitals are ambiguous and the operative part clear the operative part must prevail. (iii) If both the recital and the operative part are clear but they are inconsistent with each other the operative part is to be preferred. In the present case, both, the recital and the operative part are clear but 1 apparently there is an inconsistency between the two. In the operative part, the area of the respondent's land/plot is dearly given as 6K 4M 65 s.ft. for which development charges were to be paid by the respondent. If any area was left over and above the area included in the respondent's plot then it was liable to be acquired by the Land Acquisition Collector. However, the recital embodies the respondent's undertaking for surrendering free of cost her proportionate share for the land required for the roads and open spaces or to pay the cost thereof. The operative part of the contract neither contains any condition binding the respondent to surrender proportionate share of land required for roads and open spaces of the scheme nor any condition to pay its costs. Therefore, the operative part is to be preferred and given effect to.

5. The agreement between the parties was entered into long before the formal sanction of the Scheme by the Government . After the agreement, the respondent's land was not acquired. and she was allowed to raise construction over the entire area. The building plan was duly sanctioned by the Lahore Municipal Corporation for the total area measuring 6K 4M 65 sft. meaning thereby that no part of the respondent's land was actually required for construction of roads etc. Had any part of the respondent's land been required by the LDA. or surrendered by the respondent then it would have been formally acquired by the petitioner and its compensation paid to the respondent. Hence practically condition No. 5 embodied in the contract became redundant.

6. Under the express conditions of the contract the respondent' obligation was to pay development charges for the entire area. Admittedly the respondent has paid the development charges mini, rebate allowed by the L.D.A. and nothing is due from her on the said count. Therefore, the trial Court had rightly decreed the suit in favour of the respondent.

7. The petitionees learned counsel has expressed an apprehension that the judgment in the present case will be utilized by the other land owners of the scheme for denying their liability to pay proportionate cost for roads etc. The apprehension is ill-founded because this judgment has been rendered in the light of the express conditions of the contract relating to a piece of land which was not acquired by the Lahore improvement Trust The other arm forming part of the whom have been -duly acquired and the rights and liabilities of the parties have to be governed according to the relevant rules or regulations applicable to the scheme. For the foregoing discussion, I do not find any merit in this petition leaving the parties to bear, their own costs. AA./L-46/L REVISION DISMISSED.