1995 PLP 1192 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.‑‑‑The petitioner is seeking leave to appeal against the judgment of Lahore High Court, Rawalpindi Bench, dated 5‑6‑1994 whereby R.SA. No. 751 of 1978 filed by the petitioner to challenge two concurrent judgments of the Courts below, was dismissed and the judgment and decree of the original Court was maintained. The relevant facts of the case are that the respondent was the owner of land measuring 2 Kanals and 2 Marlas bearing Khasra No.5923/4237/1 situated at Saidpur Road, Rawalpindi (hereinafter to be referred as `the land' only). The land was acquired by the Rawalpindi Improvement Trust (hereinafter to be referred as `the Trust' only) for the purpose of a housing scheme known as `Saidpur Road Development Scheme'. The award for compensation in respect of the land was given by the Land Acquisition Collector on 10‑2‑1964 and the compensation was also deposited in pursuance of the award for payment to respondent. The respondent, however, instead of receiving the compensation for the land, applied to the Trust for grant of exemption of the land from the scheme on the basis of Circular Letter N.1335 C & D‑10/60/57 dated 19‑4‑1958. This application was rejected by the Trust and the appeal filed by the respondent before the Commissioner, Rawalpindi, against the rejection of her application also failed. The respondent finally instituted a civil suit praying for a decree of permanent injunction restraining the petitioner from allotting the land to anyone else. The suit was contested by the petitioner and on basis of the pleadings of the parties several issues were framed. The trial Court after recording evidence of the parties decreed the suit by judgment dated 24‑4‑1975. The petitioner's first appeal against the judgment and decree of the trial Court was dismissed by the Additional District Judge, Rawalpindi, whereupon a second appeal was filed before the Lahore High . Court, Rawalpindi Bench, which was disposed of by the impugned judgment giving rise to the present petition. We have heard the learned counsel for the parties at length and after hearing them converted this petition into appeal and it is disposed of as follows. The judgment and decree in favour of the respondent is based on the letter dated 4‑11‑1963 issued by the Secretary to Government of West Pakistan, Basic Democracies Social Welfare and Local Government Department, Lahore, to all the Commissioners in West Pakistan. The letter relates to the exemption of land in .development schemes framed by Improvement Trusts in favour of land owners. The policy laid down by the Provincial Government in the aforesaid letter is as follows:‑‑ "The existing policy regarding exemption of land in Trust Schemes to local land owners is laid down in this Department's Circular Letter No.1335‑58‑C & T‑10/60/57, dated the 19th April, 1958. Under this policy one plot is to be exempted in favour of a local land owner. No date, however, has been prescribed for determinating the extent of land owner's holding for the purpose of granting the exemption. (2) It has been found that in actual practice after a notification regarding a scheme has been issued by a Trust, land owners affected by the scheme begin selling or giving away or otherwise disposing of their property, in order to derive unanimous advantage from the Trust Scheme. The result is that most of the area in Trust Schemes has to be exempted and the purpose of Trusts to provide adequate building sites to the public is not fulfilled. (3) Government have, therefore, decided that in future for the purpose of giving exemption an Improvement Trust should consider the date on which a Notification regarding a scheme under section 36 of the Town Improvement Act has been issued as the date for determining the extent of a land owners` holding in a Trust Scheme. Any sale, gift or transaction after the scheme has been noted should not be taken into consideration. (4) The application of this policy to already notified schemes would cause hardship. It has, therefore, been decided that in the case of schemes which have already been notified by the Trust the operative date for determining the land holdings will be the date on which this letter is issued. (5) A land owner will normally be entitled to a plot approximating in size to his holding (after deducting a portion for roads and open' spaces). In case his holding is larger than the largest plot in the scheme he will be entitled only to one plot of the largest size Where a land owner owns less than five Marlas he will not be entitled to a plot. Co‑sharers in a holding will each be entitled to plots provided their share is large enough. In case individual shares .of co‑sharers are so small as not to entitle each of them to a plot, they may be given the option to surrender their shares to one or more of their co‑shareres who may then be allotted a plot or plots as the case may be." The above policy decision of the Government clearly provided for exemption of land belonging to local land owners falling within the housing schemes framed by the Trust. Paragraph 5 of this policy decision clearly lays down that a land owner is entitled to a 'plot approximately in size to his holding after deduction of a portion for roads and open spaces if any. It was not disputed before the Courts below that the policy decision dated 4‑11‑1963 was consistently followed by the Trust as well as the petitioner. It is, however, contended by the learned counsel for the appellant very vehemently that the letter dated 4‑11.1963 relied upon by the Courts below has no statutory force as it could not be treated as a rule framed under section 73 of the Town Improvement Act, The learned counsel referred to various Rules framed under section 73 of the Town Improvement Act, 1922 (hereinafter to be referred as `the Act` only) in order to show that such rules were framed by the C3overnor of the Province and not by the Provincial Government. It is also contended by the learned counsel for the appellant that by virtue of section 49 of the Act, I section 124 of the Municipal Administration Ordinance 1960, hereinafter .to be referred as `the Ordinance' only, was made applicable, which provided that all by‑laws shall be made subject to the conditions of previous publication and as such the policy letter issued on 4‑11‑1963 by the Provincial Government could not be treated as a statutory rule framed ;ender the Act. The contention of the learned counsel for. the appellant has not impressed us. It is not necessary in this case to go into the question whether the letter dated 4‑11‑1963 issued by the Secretary to the Government of West Pakistan Basic Democracies Social Welfare, Lahore to all the Commissioners in West Pakistan could be treated as a rule promulgated under section 73 of the Act. It was not disputed either before the Courts below or before this Court that the policy decision contained in the letter dated 4‑11‑1963 has been consistently followed by the Trust as well as by the petitioner which succeeded the Trust, all along. Paragraph 3 of the letter dated 4‑11‑1963 clearly shows that the decision conveyed through the above letter was taken by the Government which according to the definition given in section 2, sub‑clause (19) of the Act, means a Provincial Government. Section 21‑A of the Act vests with the Government wide powers to control the activitiespf the Improvement Trust and to require it to act in a particular manner. We are, therefore, of the view that even if it is held that the letter dated 4‑11‑1963 did not amount to rule promulgated under section 73 of the Act, such instruction/policy decision could be laid down by the Government in view of the authority vested in it under section 21‑A of the Act. We, accordingly, see no force in the contention of the learned counsel for the appellant that the letter dated 4‑11‑1963 was not binding on the appellant. In view of the preceding discussion we are of the view that the respondent was entitled to plot of land in the Saidpur Scheme approximately in size to her holding after deduction of any portion of that plot which came under the construction of the road or was earmarked for open, spaces. The learned counsel for the appellant admits before us that the plot belonging to the respondent which has been acquired in the scheme was situated on main Saidpur Road and in fact he has stated before us that plot No.370 was carved out of the plot of the respondent which was acquired by the appellant authority and is shown in the site plan produced at page 113 of the paper book. In these circumstances, as observed by us above, the respondent will be allotted a plot on the Saidpur Road on the same site where the holding of respondent was situated, after deduction of the area which has been utilized for purposes of construction of the road. The question regarding exclusion of the area already utilized by the appellant authority for the purpose of construction of the road will be determined in the execution proceedings before the executing Court. The judgment and decree passed in favour of the respondent stands modified accordingly and the appeal stands disposed with no order as to costs. AA./R‑254/S Order accordingly,