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Petitioner: Muhammad Khalid Javed and others VS Respondent: Lahore Development Authority JUDGMENT
Court Name: Lahore High Court Judge(s): Jawad Hassan Title:Muhammad Khalid Javed and others vs Lahore Development Authority
JUDGMENT
Reported As: PLD 2021 Lahore 211, 2020 LHC 3294 Result: Petition allowed Judgment JUDGMENT "'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law ." Lord Denning in Southam v Smout [1964] 1 QB 308 at 320 JAWAD HASSAN, J. The Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution" ) with the following prayer: "It is, therefore, most respectfully prayed that the act of the Respondents for demolishing the boundary wall, injuring the privacy of the Petitioners, trespassing over the personal owned property of the Petitioners and chalking out a mud track over the property of the Petitioners without adopting due process of law which is sheer violation of fundamental constitutional rights of the Petitioners. It is further prayed that the Respondents may kindly be restrained from doing their construction work over the property of the Petitioners or demolishing any further constructions of the Petitioners in any manner whatsoever". I. BACKGROUND OF THE CASE 2. Two pieces of land, one measuring 18-Kanal 12-marlas and the other measuring 8-kanals 8-marlas were purchased by Dr. Muhammad Din Ch. (Predecessor-in-Interest of the Petitioners) and the Petitioners No.3&9 through registered sale deeds on 03.07.1975. The entries of mutation and registration of aforesaid sale deeds were also incorporated in the revenue record accordingly . The above said properties were purchased in 1975 prior to launch of MA Johar Town Scheme ("JT Scheme") on 28.08.1980 by the Lahore Development Authority (the "LDA" ). The Petitioners No.3 and 9 and the predecessor-in-interest of Petitioners No.1, 2, 4, 5, 6, 7 and 8 applied to the Town Planner for approval of the subdivision of the Property in order to allow each of them to build their
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homes. The application was submitted along with a map for the subdivision which included a "street" for the internal use of the residents of the Property . However , the LDA through its letter dated 30thof August 1983 required the Petitioners No.3 and 9 and the predecessor-in-interest of Petitioners No.1, 2, 4, 5, 6, 7 and 8 to revise the map for the subdivision by identifying and demarcating the area for the high-tension wire already passing through the Petitioners' Property . The revised map for the subdivision was accepted and adopted by Town Planner which included a demarcation of the area identified for High Tension Wires and the private street. After the map for the subdivision was accepted, the Petitioners No.3 and 9, the predecessor-in-interest of Petitioners No.1, 2, 4 to 8 and the Respondents entered into an Interim Development Agreement dated 12 of March 1985 (the "Agreement" ). Subsequently , LDA launched and approved its JT Scheme Phase II along with a new map in 1986. Through the said map of the Scheme, a public road was superimposed on the Property of the Petitioners without following the proper procedure required to give effect to the same. The boundary wall of the Petitioner 's Property was still shown as intact. The Petitioners raised an issue on the said imposition of a public road through letter dated 11th April 1992. However , LDA did not respond to the same, slept over the issue and left the matter unattended until June 2019 when the boundary wall was suddenly demolished and a public road was built right through the Property of the Petitioners. The Respondents without any notice and all of a sudden entered the Property of the Petitioners on 03.06.2019 to demolish the boundary wall erected by the Petitioners to cordon off their property . The Petitioners approached the Civil Court immediately against the actions of the Respondents wherein the Learned Civil Judge granted a stay order against the proceedings on 10th of June 2019. The Respondents even then razed the boundary walls and began the constructio n of a double carriageway on the Property of the Petitioners in violation of the fundamental and constitutional rights of the Petitioners, which eventually left them with no other adequate and efficacious remedy but to approach this Court. II. PETITIONER'SSUBMISSION 3. Barrister Ahmad Pervaiz, ASC, counsel for the Petitioners inter-alia contends that the Respondents have violated the principle of natural justice by demolishing the boundary wall and constructing road in the Petitioners' property measuring 5-Kanal and 17 Marla 115 sq.ft. and 2-kanal, 17-Marla 145 sq.ft. respectively (the "Disputed Road" ) without issuing any notice to them; that the Petitioners did not violate any of the terms of the Agreement but the Respondent-LDA before taking aforesaid action did not issue any notice to them as such it is clear violation of Articles 4, 9, 14, 23 and 24 of the Cons titution and the principles laid down by the Hon'ble Supreme Court of Pakistan in the judgment cited as "KHALID SAEED Versus SHAMIM RIZV AN and others" (2003 SCMR 1505 ); that the Petitioners are residing in the area since 1975 and pursuant to the Agreement, constructed boundary wall in order to protect their privacy and ensure their security but the action of the Respo ndents by demolishing the wall, without adopting proper procedure, is violative of Section 39 of the Lahore Development Act, 1975 (the "Act" ) which states that any action against the occupants shall be subject to opportunity of hearing and Section 39(3) of the Act cannot be read in isolation with Sections 39(1)(2) and 35(2) of the Act; that as per Section 40 of the Act if any building, structure, work or land is erected, constructed or used in contravention of the provisions of this Act or of any rule, regulation or order made thereunder the Direction General or any person authorized by him or the Authority in this behalf, may by ordered in writing, require the owner , occupier , user or person in control of such building, structure, work or land to remove, demolish or alter the building, structure or work or to use it in such manner so as to bring such erection, construction or user in accordance with the said provisions of this Act" whereas Section 40(2) of the Act depicts that right of hearing before demolishing or removing any part of the property has to be given to the owner or occupier of the property but this has not been done in this case which is violation of Article 10-A of the Constitution in which right of fair trial and due process is granted to all citizens. In this regard, learned counsel relied on the recent judgment of this Court reported as Muhammad Aslam versus Member (Colonies) Board of Revenue Punjab Lahore and others (2019 CLC 1141). He relied on cases of "CH. MEHRAJ DIN Versus LAHORE DEVELOPMENT AUTHORITY" (1981 SCMR 862) and "SHIF A LABORA TORIES (Pvt.) Ltd. through Chief Executive Versus LAHORE DEVELOPMENT AUTHORITY , through Director-General, LDA and 3 others" ( 2004 MLD 1377 ). III. RESPONDENTS SUBMISSIONSth
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4. Sahibzada Muzaf far Ali, counsel for the Respondents objected to the maintainability of the petition on the grounds that the matter in hand revolves around factual controversies involving disputed questions of fact and also due to pendency of civil suit this issue cannot be decided in constitutional jurisdiction. He states that the Petitioners have concealed material facts as such they are disentitled to discretionary relief. He further argued that the Petitioners made illegal encroachments and erected unauthorized constructions in sheer violation of Clause 2-A of the Agreement therefore, action taken by the Respondents by invoking Clause 14 of the Agreement is justified. He relied on "Haji MUHAMMAD ASHRAF Versus The DISTRICT MAGISTRA TE QUETT A and 3 others" (2000 SCMR 238), "MUHAMMAD MAQSOOD SABIR ANSARI Versus DISTRICT RETURING OFFICER, KASUR and others"( PLD 2009 SC 28), "FIDA HUSSAIN and other Versus Mst. SAIQA and others" (2011 SCMR 1990 ), "JAVED AHMAD RIAZ V ersus GOVERNMENT OF PUNJAB and others" (2018 PLC (C.S.) Note 25). 5. Arguments heard. Record perused. IV. DETERMINA TION BY THE COURT 6. The whole case of the Petitioners is that they, being the owners of the disputed property , erected boundary wall thereon in the year 1975 in order to protect proprietary interests of their private property and the demolition of boundary wall as well as construction of road on their property by the Respondents, without issuing mandatory notice or providing an opportunity of hearing, is sheer violation of Sections 39 and 40 of the Act which is also against the principle of natural justice and infringement of their fundamental rights guaranteed under the Constitution. While the stance of the Respondents is that they have rightly taken the action by invoking Clauses 2- A and 14 of the Agreement read with Section 39(3) of the Act. It is not disputed by all hands that the Petitioners are the owners of the property . The boundary wall erected by them was demolished by the Respondents by invoking Clause 2-A and 14 of the Agreement and Section 39(3) of the Act. Section 39 of the Act is reproduced hereunder: Ejectment of unauthorized occupants.- (1) Subject to an opportunity of hearing, the Director General or any person authorized by the Director General may summarily eject any person in unauthorized occupation of any land or property vested in the Authority and may for such ejectment use such force as may be necessary . (2) Subject to an opportunity of hearing, the Director General or any person authorized by the Director General may, on his own motion or on the application of the owner , summarily eject any person in unauthorized occupation of any land or plot in a housing scheme developed and controlled by the Authority and may, for such ejectment, use such force as may be necessary . (3) Nothing contained in subsections (1) and (2) shall prohibit the Director General or any person authorized by the Director General to proceed against such person on commission of an offence, as provided in the Act.] 7. From the plain reading of aforesaid Section, it clearly reveals that the said section deals with the ejectment of unauthorized occupants. It empowers the Director General LDA or any person authorized by him to proceed against any person who is in unauthorized occupancy of land or property vested with the Authority but such ejectment is also subject to an opportunity of hearing. Section 39(1) of the Act empowers the Director General of LDA or any person authorized by him, to summarily eject any person while Section 39(2) of the Act further empowers the Director General or any person authorized by him to proceed, on his own motion or by an application of the owner , to summarily eject any person in unauthorized occupation of any land or plot in a housing scheme developed and controlled by the LDA whereas Section 39(3) of the Act empowers the Director General or any person authorized by him, if he does not desire to summarily eject unauthorized occupant and wishes to proceed against such person on commiss ion of an offence under Section 35(2) of the Act. Although Section 39, as a whole, empowers the Director Genera l LDA to eject unauthorized occupants but these powers are dependent upon mandatory condition precedent of issuance of prior notice and providing an opportunity of hearing to the aggrieved party . 8. The Respondents have taken specific stance that the Petitioners violated Clauses 2-A and 14 of the Agreement which was executed between the parties on 12.03.1985. It is also noted that the Respondents-LDA has not taken any action for the last 35 years and now without giving any notice or even opportunity of hearing, have taken action under Section 39(3) of the Act. From the perusal of the Agreement it reveals that no mechanism was provided therein to take any action against the Petitioners therefore, principles of natural justice, safeguards provided under
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the Act and the constitutional guarantees are equally applicable in that situation to adjudge actions taken by the Respondents against the Petitioners and the Courts have the jurisdiction to entertain the petition under the rule of law and access to justice for the dispensation of justice. 9. The learned Legal Advisor of the LDA was confronted that what portion of the property they want to clear or to build the road thereon because the Court on 11.09.2019 while appointing Commiss ion superficially put query about the ownership of the Petitioners. The Local Commission submitted report on 30.09.2019 and answered the query with the observation that "as per revenue record and version of the LDA, Petitioners are owners of 27-kanals. The LDA filed objections to the report of local commission on 05.11.2019 and did not deny the ownership of the Petitioners. The Petitioners also filed rejoinder to the objections of the LDA on 06.12.2019 by stating that they are the owners of the property . Since the Petitioners are the owners of the property and are in continuous, consistent and uninterrupted possession of the same for last more than three decades, the Respondents/LDA has failed to justify the reasons to demolish, taken over the property not owned by it in an arbitrary manner . Moreover , the Respondents/LDA has not taken the stance anywhere that the property is owned by them therefore, their action to take over the property and demolish the same in an unlawful manner is unwarrante d and uncalled for. This Court in "Mst. ASIY A ASHRAF CH. Versus GOVERNMENT OF PUNJAB etc" (2020 CLC Lahore 503) has elaborated the property rights of the citizen of Pakist an by declaring that "it is established that the right to one's own Property is a fundamental right of every citizen and he/she cannot be deprived from his/her Property by any authority in an arbitrary manner . This right is protected and safeguarded by the constitution. Article 24 of the Constitution allows for Property to be acquired or taken possession of in select circumstances when it is required for the public purpose under the authority of the law". 10. Now the question is whether the Petitioners were dealt with by the Responden ts in the light of Article 4 of the Constitution which clearly states that it is an inalienable right of every person to enjoy the protection of law and to be treated in accordance with law and has every right to knock the door of this Court if this inalienable right is denied to him. Every executive organ is obliged to perform his duties and to exercise only those powers which law has conferred upon it; otherwise same will be subject to the judicial review of Superior Courts. The Respondents/LDA had to obey the Constitution and mandate of law before taking such action because judgments relied upon by learned counsel for the Petitioners Barrister Ahmad Pervaiz, ASC are the judgments of this Court and the August Supreme Court of Pakistan and under Article 189 and 201 of the Constitution, are binding on the LDA. Under Article 5(2) of the Constitution, it is inviolable obligation to obey the Constitution and the law as the judgment of Supreme Court of Pakistan is the law of the land which has to be implemented in letter and spirit without any fail. 11. Basically the gist of the stance taken by the learned counsel for the Respondents Sahibzada Muzaf far Ali, Advocate is that the LDA has taken action under Section 39(3) of the Act which was substituted through amendment in 2013 but perusal of the same reveals that it is also subject to provision of giving hearing to the parties because it starts with the words "Subject to opportunity of hearing" which is only confined to take action and not to demolish the property , any building, structure or work. In this case, the property is owned by the Petitioners therefore, they cannot be termed as unauthorized occupants of the property as provided under Section 39 of the Act and thus the provision to eject the Petitioners under Section 39 is not applicable to the Petitioners, hence action taken by the Respondents is unwarrante d and uncalled for. On the other hand, perusal of Section 40 of the Act reveals that it deals with the removal of buildings but this is also subject to opportunity of being heard as per Section 40(2) of the Act. The Respondents-LDA under this Section can only take an action of removal of building, structure, work or land if it is erected, constructed or used in contravention of the provisions of the Act or of any rule, regulation or order made thereunder . However , in this case, the Petitioners who are owners of the property as reflected by the local commission report and raised construction thereon including erecting boundary wall with the permission and consent of LDA, as per the Agreement. It is also pertinent to mention here that the Petitioners build those houses and raised that boundary wall around their exclusively owned property three decades ago which is not in contravention of any of the provision of the Act and this is unequivocally estab lished from the fact that despite
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of the lapse of such prolonged time, the Respondents/LDA never raised this issue in the last more than thirty-four (40) years and now estopped from doing so being hit by laches and acquiescence. 12. The word "land" is defined under Section 2(o) of the Act and "person" is defin ed under Section 2(t) of the Act while the powers and functions of the authority are defined under Section 6 of the Act. The Act has chapters and provisions to deal with matter as per the Sections under the respective chapters. The provision invoked by LDA under Section 40 is under Chapter IX which deals with "Miscellaneous" subjects. For an action to be taken under Section 40 of the Act, certain limitation and conditions are necessary to be fulfilled as the provision is only applicable for removal of a building, structure, work or land erected, constructed or used in contravention of the provisions of the Act which is condition precedent with the most important and necessary ingredient to be fulfilled before applying this provision is the provision of hearing to the party against whose interest, action is going to be taken and if the Director General is satisfied only after then it can require the owner , occupier or person to remove/demolish or alter such construction or part. However , the Act does not provide or give mandate to LDA for taking law in their own hands and demo lish the property or land without hearing out the parties and fulfilling the mandatory requirements of the Act. 13. In the instant case, as discussed above, the Respondents bypassed the requirements of law and did not give any notice to the Petitioners and without providing them an opportunity of being heard and arbitrarily took recourse to drastic measures, which is though provided in law but not intended to be adopted in such a manner which negates not only the mandatory requireme nts provided under the Act but also hampers the Petitioners' fundamental right of due process of law which is provided and protected under Article 10-A of the Constitution in which right of fair trial and due process is granted to all citizens. In this regard, learned counsel relied on the recent judgment of this Court reported as Muhammad Aslam versus Member (Colonies) Board of Revenue Punjab Lahore and others ( 2019 CLC 1 141) wherein it has been held as under:- (A) Notice: Before any action is taken, the affected party must be given a notice to show cause against the proposed action and seek his explanation. It is a sine qua non of the right of fair hearing. Any order passed without giving notice is against the principals of natural justice and is void ab initio. Before taking any action, it is the right of the person to know the facts. Without knowing the facts of the case, no one can defend himsel f. The right to notice means the right of being known. The right to know the facts of the suit of case happens at the start of any hearing. Therefore, notice is a must to start a hearing. A notic e must contain the time, place and date of hearing, jurisdiction under with the case is filed, the charges, and proposed action against the person. All these things should be included in a notice to make it proper and adequate. Whenever a statute makes it clear that a notice must be issued to the party and if no compliance or failure to give notice occurs, this makes the act void. Non-issue of the notice or any defective service of the notice do not affect the jurisdiction of the authority but violates the principle of natural justice. (B) Hearing:- Oral or Personal Hearing- How Far Necessary: The second ingredient of audi alteram partem (hear the other side) rule is the rule of hearing. If the order is passed by the authority without providing the reasonable opportunity of being heard to the person affected by it adversely will be invalid and must be set aside. The reasonable opportunity of hearing which is also well known as 'fair hearing' is an important ingredient of the audi alteram partem rule. This condition may be complied by the authority by providing written or oral hearing which is the discretion of the authority , unless the statue under which the action being taken by the authority provides otherwise. It is the duty of the authority who will ensure that the affected party may be given an opportunity of hearing. However , the above rule of fair hearing requires that the affected party should be given an opportunity to meet the case against him effectively . 14. It is the basic principle of law that if law provides a mechanism for doing an act, taking an action or initiating certain measures, then the same must be complied with as and when the law provided that things to be done in a particular manner , the same are to be done in that manner and if anything is done contrary or in deviation to that, the same shall be deemed to have not been done at all. Requirement of issuing prior Notice and providing opportunity of hearing was a mandatory requirement before taking measures under Section 40 of the Act, and the
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Respondents' failure to comply with the same before demolishing boundary wall erected within privately owned property of the Petitioners, which was in consonance with the Agreement executed between the parties, have rendered their action astray from the course of law and thus cannot be termed in accordance with law and cannot get the protection of the very provision, which is violated by the respondents them selves. It is settled principle of law that if base/foundation of any order or action is illegal then whole superstructure built thereupon cannot be sustained. When the law specifies a particular manner and procedure then it is obligatory for the functionary of the state to adhere to the same and comply with it in all respects and any negligence, failure or omission to do so invalidate the proceedings on account of which whole superstructure raised on such defective foundation automatically crumbles down. The Larger Bench of Honorable Supreme Court in "YOUSAF ALI Versus MUHAMMAD ASLAM ZIA and 2 others" (PLD 1958 Supreme Court (Pak.) 104) expounded this principle by observing that "if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded." Similarly , the Honorable Supreme Court in "EXECUTIVE DISTRICT OFFICER (EDUCA TION), RAWALPINDI Versus MUHAMMAD YOUNAS" (2007 SCMR 1835 ) also held that "It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically" . Whereas the August Supreme Court in "REHMA TULLAH and others Versus SALEH KHAN and others" (2007 SCMR 729) also upheld the similar principle by observing "it is settled law when the basic order is without lawful authority then all the super structure shall fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah.". The Islamabad High Court in "NATIONAL INSTITUTIONAL FACILIT ATION TECHNOLOGIES (PVT .) LIMITED through duly Authorized Officer Versus The FEDERAL BOARD OF REVENUE through Chairman and 7 others" (PLD 2020…
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