Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mian RAFAT MEHMOOD and 5 others VS Respondent: DIRECTOR GENERAL, LAHORE DEVELOPMENT AUTHORITY, LAHORE and 3 others
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title:Mian RAFAT MEHMOOD and 5 others vs DIRECTOR GENERAL, LAHORE
DEVELOPMENT AUTHORITY, LAHORE and 3 others Case No.: W.P.No.11797 of 2001 Date of Judgment:2015-08-18 Reported As: 2016 CLC 408 Result: Petition disposed of Judgment ORDER ' SHUJAAT ALI KHAN, J.--- Through this order, I intend to dispose of this Writ Petition, alongwith applications filed during, pendency of this petition as well as Crl. Org.No.2410-W/2014, having arisen out of same set of circumstances. 2. Shorn of unnecessary details, the facts as divulged in the instant petition, as well as those brought to the notice of this court through subsequent miscellaneous applications, are that one Ali Mehdi Qizalbash, being owner of land measuring, 1280-Kanals in Mouza Musallah Lahore, in the year 1985 submitted a proposal before the Lahore Development Authority (hereinafter to be referred as the Authority) seeking approval for development of a private housing scheme with the name of "Mahrukh Housing Scheme" On the move of said Ali Mehdi Qizalbash the requisite planning permission was granted in his favour. Pursuant to the said planning permission, the original applicant deposited the requisite scrutiny fee of Rs.15,200/-. 3. Prior to final sanction of the housing scheme in the name of Ali Mehdi Qizalbash, in the month of January 1987, the petitioners purchased a chunk of land measuring 599-Kanals & 10-Marlas, falling in Khasra Nos.352, 431, 852 to 866, 899 to 829, 944 to 951 and 954 to 984 out of the above holding of Ali Mehdi Qizalbash. After purchase of a reasonable portion of the land, subject matter of the aforementioned "Mahrukh Housing Scheme" the petitioners approached the Authority for change of the name of the Housing Scheme as "Mumtaz Housing Scheme". The request of the petitioners was acceded to and the name of the proposed Housing Scheme was changed as prayed for. Pending sanction of the scheme of the petitioners, the Authority, on 20.04.1994, issued Notification under section 13(3) of the LDA Act, 1975 (hereinafter to be referred as the Act 1975) which was
---
## Page 2
followed by a Notification under section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as the Act, 1894), dated 03.08.1994, for acquisition of land measuring 16000-Kanals for Mohlanwal (Ext.) Housing Scheme Lahore. The land underneath the proposed scheme of the petitioners was also included in the said Notification. Being aggrieved by the inclusion of their land in the aforementioned Notifications, the petitioners filed Writ Petition (No.13404/1994) before this Court. Since no decisive step was taken by the Authority in furtherance of the Notification under section 4 ibid, despite expiry of one year as stipulated under Rule 7 of the Land Acquisition Rules, 1983, the Notification issued under section 4 ibid died its natural death. 4. After expiry of Notification, dated 03.08.1994, the Director General of the Authority on 16.10.1995, submitted a summary to the Chairman of the Authority with the averments that as the petitioners had already completed the requisite formalities, their land be excluded from the proposed housing scheme of LDA but no decision was taken by the competent authority on the move of the Director General of the Authority. Resultantly, the petitioners instituted Writ Petition (No.12750/1996) with the prayer that the respondents be directed to exclude their land from Notification, dated 20.04.1994. 5. On 09.10.1996, the District Collector, Lahore, issued another Notification under section 4 ibid for acquisition of land measuring 2-Acres, for the Punjab Workers Welfare Board to develop a Labour Colony. As the land of the petitioners was included in the said Notification, they were constrained to file Writ Petition (No.20394/1996) before this Court. All the above three Writ Petitions, filed by the petitioners, came up for final hearing on 05.06.1997 when the same were disposed of as having borne fruit as no further step was taken by the Authority pursuant to the aforementioned notifications issued under section 4 ibid. After decision of their above-referred petitions, the petitioners, through their written request dated 09.07.1997, requested the Authority to finalize the case of Mumtaz Housing Scheme but instead of paying any heed to the legitimate request of the petitioners, the Workers Welfare Board, on 06.12.1997, issued Notifications under sections 6 and 17(4) of the Act, 1894. In addition thereto, the Additional Deputy Commissioner (General), Lahore also sanctioned the compensation to be awarded to the land owners in lieu of their land acquired for the Labour colony. 6. As the request of the petitioners for issuance of NOC to develop a private housing scheme was not being acceded to and their land was included in the aforesaid schemes, they opted to File Writ Petition (No.812/1998) praying therein that the Authority as well as the Workers Welfare Board be restrained from, including their land in their respective schemes. During pendency of the said Writ Petition, the Authority announced another scheme in the name of "Jubilee Town Housing Scheme Phase-II". To acquire the land for the said scheme, the Land Acquisition Collector issued Notification under section 4 ibid on 27.02.1998. Again the land, underneath the proposed private housing scheme of the petitioners, was included in the area proposed for newly announced scheme. The Writ Petition (No.812/1998) filed by the petitioners, alongwith other matters, including W.P. No.I2750/1996, referred Supra came up for final hearing on 16.11.1999 when the same were disposed of in terms of judgment dated 18.11.1997 passed in ICA No.146/1996 whereby the Authority was directed to decide application of the petitioners for issuance of NOC for establishment of private housing scheme within two months in the light of judgment dated 18.11.1997 passed in ICA No.146/1996. Pursuant to the direction issued by this Court, the petitioners, through Letter dated 07.02.2001, submitted revised layout plan for approval by the Authority but the same was turned down on the plea that the area of the proposed private housing scheme of the petitioners was in conflict with the proposed "Jubilee Town Housing Scheme Phase-II" of the Authority. Thereafter, though the petitioners approached the Authority on number of occasions for exclusion of their land from acquisition and issuance of requisite NOC for development of a private housing scheme but there was n response on its part. As a last resort, the petitioners filed instant writ petition with the prayer that the Authority be directed to implement order dated 16.11.1999 passed in W.P.
---
## Page 3
No.12750/1996 as judgment dated 18.11.1997 passed in ICA No.146/1996, on the basis whereof the afore-referred order was passed, was affirmed by the apex Court of the country through orders passed in Criminal Petitions No.194-L/2000 to 199-L/2000. They also prayed that in addition to directing the respondents to pay special costs, the Authority be directed to issue requisite approval in their favour to develop a private housing scheme. 7. During pendency of the instant petition, the Land Acquisition Collector, LDA, Lahore, issued Notification under section 4 ibid for acquisition of land for ."LDA Avenue-I Housing Scheme" Lahore. The petitioners filed an application (C.M. No.1/2003) seeking a restraint order against the respondents to include their land in the said scheme. In addition thereto, the petitioners also filed application (C.M. No.86/2003) seeking amendment/addition in the prayer clause of the present petition wherein notices were issued to the respondents on 22.01.2003. Besides, the petitioners moved two other applications (C.M. No.605/2003 and C.M. No.824/2003) for exclusion of the Khasra Numbers underneath their proposed private housing scheme from the Notification under section 4 ibid. The above applications filed by the petitioners apart, the Authority also moved an application (C.M. No.825/2003) for decision of the instant Writ Petition on the ground of having become infructuous as well as for vacation of stay order. Furthermore, the petitioners submitted another application (C.M. No.1188/2003) seeking exclusion of their land from the Notifications issued under sections 4, 6 and 17(4) of the Act, 1894. Later on the Authority filed an application (C.M. No.1/2012) for decision of instant petition on the question of maintainability in the first instance. The petitioners also moved another application (C.M. No.2/2014) seeking restraint order against announcement of Award. Lastly, the petitioners filed application (C.M. No.3/2014) seeking direction for restoration of their possession over land in question. 8. The petitioners have also filed the connected contempt petition agitating non-compliance of order dated 20.10.2014 passed in the present Writ Petition. As all these matters have emanated from same set of facts, thus, the same are being decided through this single consolidated order. 9. The legal formulations put forward by the learned counsel representing the petitioners at the bar as well as those submitted in written form can be summed up as follows:- i) That order dated 16.11.1999, having been passed in W.F.No.12750/1996, with the consent of the learned counsel representing the respondents and having not been challenged any further attained finality, thus, had binding force upon the respondents and they were under legal obligation to issue requisite NOC in favour of the petitioners. Relies on Mst. Surayya Aziz v. Collector Lahore District Lahore 2003 CLC 1510 M/s United Kashmir Flour Mills (Pvt.) Ltd. v. Govt. Of AJK (2003 YLR 2835), Rukhsar Ali and others v. Govt. Of N.W.F.P. (2003 PLC (C.S.) 1453), Muhammad Afsar v. Muhammad Sharif (1989 CLC 1850), A.R. Khan v. P.N. Boga through Legal Heirs (PLD 1987 SC 107 India), Muhammad Rafique Gazdar v. Additional Commissioner, Karachi (PLD 1972 Karachi 119) and Century Spinning and Manufacturers Co. Ltd. And another v. The Ulhasnagar Municipal Council and others (AIR 1971 SC 1021); ii) that according to judgment, dated 18.11.1997, rendered in ICA No.146/1996 on the basis whereof order dated 16.11.1999 was passed in favour of the petitioners, the respondents were bound to decide the fate of acquisition proceedings within a period of one year. And in case of their failure to finalize the same within the said period, they were bound to reprocess the application of the petitioners and issue requisite NOC in their favour; iii) that the act of the Authority towards non-exclusion of the land of the petitioners from the acquisition process is discriminatory inasmuch as in similar set of circumstances, the Palace Town Housing Scheme (present known as Avenue One Housing Scheme) was excluded from the acquisition proceedings on the basis of the decision rendered in ICA No.146/1996. Adds that NOCs have been issued to the sponsors for development of the private housing schemes known as "Land Breeze Housing Scheme" and "Ali Raza Park Housing Scheme" despite the fact that those housing
---
## Page 4
schemes are in conflict with the LDA Avenue-I Housing Scheme whereas the petitioners, who have been clamouring for their cause before the Authority since the year 1987 have been discriminated. To fortify their contention, learned counsel refer to Shaukat Ali and others v. Govt. Of Pakistan (PLD 1997 SC 342), Suleman Daud v. LDA (2008 CLD 850) and Afzaal Ahmed v. District Officer Revenue (2004 CLC 1714); iv) that Notification, dated 24.12.2002, under Section 4 ibid having been issued during currency of Status-Quo order issued by this Court on 04.07.2001 is inconsequential upon the rights of the petitioners,- thus, the same cannot used against them. In support of their plea learned counsel have relied upon the cases reported as Muhammad Sabir Khan v. Rahim Bakhsh (PLD 2002 SC 303), Mst. Sharifan Bibi v. Allah Bakhsh (1996 SCMR 1823), Bakhtawar etc. v. Amin etc. 1980 SCMR 89, Vidur Impex and Traders (Pvt.) Ltd. And others v. Tosh Apartments (Pvt.) Ltd. (2013 SCMR 602 India), Haji Muhammad Hussain v. Muhammad Abbas (2001 YLR 1767), Surjit Singh and others v. Harbans Singh and others (AIR 1996 SC 135), Mst. Hamida Akhtar v. Nazir Muhammad and 2 others (1995 CLC 2020), Muhammad Boota v. Allah Ditta etc. 1989 ALD 330(2), Clarke and others v. Chanburn and others [1985] IAII ER 211) and Century Flour Mills Ltd. v. Suppaiah and others (AIR 1975 Madras 270); (v) that Notification, dated 24.12.2002, was purportedly issued in view of the statement made by the petitioners' counsel during the course of hearing on 22.07.2002 but the said offer, being conditional and having not been accepted by the respondents in unequivocal words, had no binding force upon the petitioners, thus, the very basis of the Notification, under discussion, is untenable. In this regard, learned counsel have relied upon the cases reported as City Schools (Pvt.) Ltd. Lahore v. Privatization Commission and others (2002 SCMR 1150), M/s Airport Support Services v. The Airport Manager Karachi (1998 SCMR 2268), Al-Huda Hotels and Tourism Co. v. Paktel Limited and others (2002 CLD 218), Khadim Hussain v. Deputy Commissioner Hafizabad (2000 MLD 577), Pakistan Steel Products v. M/s. Indus Steel Pipes Ltd. (1996 CLC 118), M/s. Shalsons Fisheries Ltd. Karachi v. M/s Lohmann & Co. And others (PLD 1982 Karachi 76), Custodian of Enemy Property, Islamabad v. Hoshang M. Dastur & 6 others (PLD 1977 Karachi 377) and Dr. Azeem Shad v. Municipal Committee Multan (PLD 1968 Lahore 1419); (vi) that prior to filing of the instant writ petition, the request of the petitioners for issuance of NOC was regretted on the ground that the proposed scheme of the petitioners fell within the area which was earmarked for the proposed housing scheme of the Authority itself and the respondents had completed file work to establish the scheme in the name of "Jubilee Town Housing Scheme Phase- II" but the said ground was not available to the respondents as they left the idea of development of aforesaid scheme. To fortify his contention learned counsel have referred to Para No.3 of the application (C.M. No.825/2003) in addition to Letter, dated 30.07.2007, and Para No.3(i) of the skeleton written arguments submitted on behalf of the respondents; (vii) that mala fide on the part of the respondents is manifest from the fact that on the one hand they exempted the land still to be purchased for the Judicial Officers Cooperative Housing Society Phase-III, Lahore but on the other have refused the said relief to the petitioners, whose matter regarding issuance of NOC for establishment of a private housing scheme on the basis of valid title documents is pending since the year 1987. Relies on Mst. Surayya Aziz (Supra); (viii) that uncalled for conduct of the respondents is apparent from the fact that during pendency of the instant petition, the respondents were restrained in clear cut words not to allot plots carved out on the land underneath the proposed private housing scheme of the petitioners but the stance taken by them in their skeleton arguments is that as allotment letters have already been issued in favour of the allottees it is not possible for them to retract from the acquisition of the petitioners' land; (ix) that the respondents were estopped to include the land of the petitioners in the acquisition proceedings in view of their clear cut stand taken in C.M. No.825/2003 coupled with the fact that
---
## Page 5
they abandoned the idea of development of schemes wherein the land. Of the petitioners was previously included. Relies on Muhammad Saleem Ullah v. District Judge, Gujranwala (PLD 2005 SC 511) and Pir Bakhsh and others v. The Chairman Allotment Committee and others (PLD 1987 SC 145); (x) that the respondents are bound by the various undertakings given by them before this Court as well as before the Apex Court of the country during the course of hearing of different matters and any act in violation of the said undertakings cannot be bestowed with stamp of authenticity rather deserve to be dealt with strictly; (xi) that after admission by the Director General of the Authority, in its summary dated 16.10.1995, submitted for approval of the competent authority, that the petitioners completed all the codal formalities for development of a private housing scheme and there was no impediment in the way of issuance of required NOC, the respondents were under bounden duty to issue requisite NOC in favour of the petitioners; (xii) that mala fide attitude of the respondents is crystal clear from the fact that just to deprive the petitioners of their right to develop a private housing scheme, the respondents had been including their land in the various proposed housing schemes of the Authority but none of them matured into reality. Further, the act of the respondents to include land of the petitioners in LDA. ' Avenue-I Housing Scheme despite subsistence of status quo order, issued by this court, is part of their nefarious designs to deprive the petitioners from development of a private housing scheme; (xiii)that it has been mandated in the Constitution of the Islamic Republic of Pakistan, 1973 that the similar persons/entities be treated alike and in case of any discrimination the Constitutional jurisdiction of this Court is aptly attracted. Adds that it is a fit for exercise of such jurisdiction as discriminatory attitude of the respondents is apparent from the Facts and circumstances narrated above; (xiv) that since the acquisition process qua land of the petitioners for LDA Avenue-I Housing Scheme was issued while suppressing the factum of pendency of instant writ petition before this Court wherein status-quo order had already been issued, the respondents cannot take any premium on the ground that they after taking over the land owned by the petitioners have already carved out plots which have further been allotted to the proposed allottees. Rely on Principal King Edward Medical College Lahore v. Ghulam Mustafa etc. (1983 SCMR 196); Zafarullah v. Board of Intermediate and Secondary Education and others (1982 SCMR 571), Pir Saleh Shah and others v. The Custodian of Evacuee Property and others (1971 SCMR 543), Abdul Rasheed v. Pakistan and others (1969 SCMR 141), Sheikh Ghulam Shah v. K.D.A and others (2003 YLR 1501), Mubarak Ali v. Muhammad Anwar (2000 YLR 652), Gulfam and another v. Ali Muhammad and others (PLD 1989 Karachi 499), Shahah Din v, Mst. Khadija Begum and three others (PLD 1983 LHR 591), Noor Muhammad and others v. Nawaz and another (PLD 1975 LHR 1518), Wall Muhammad v. The Security, Home Department, Government of Balochistan and 2 others (PLD 1972 Quetta 33), Liaqat Hossain Khan v. The Secretary Basic Democracies Local Government Department, Govt. Of East Pakistan, DACCA & 3 others (PLD 1971 DLC 176) and Ramzan v. Chief Settlement and Rehabilitation Commissioner and others (PLD 1968 LHR 258); (xv) that the petitioners cannot be deprived of their property except under provisions of the Act, 1894, whereas in the instant case the operation of the Notifications under sections, 4, 6, & 17(4) having been suspended by this Court, any action taken by the respondents in violation of an injunctive order cannot be let unnoticed. Refer to Haji Nawaz Khan and others v. Rabnawaz and others (1992 SCMR 993), F.K. Abbasi v. M.I. Malik (1985 CLC 1603), Mst. Dolat Bibi and 4 others v. Multan Improvement Trust (PLD 1977 LHR 655) and Mst. Sardar Begum v. Lahore Improvement Trust (PLD 1972 Lahore 458); (xvi) that nobody can be left at the mercy of the public authorities and in case of an unlawful act, the aggrieved person should be restored to his original position. Rely on Yousaf Ali v. Muhammad
---
## Page 6
Arslan Zia and 2 others (PLD 1958 SC (Pak.) 104), Mst. Surayya Aziz (Supra) and Amir Latif Qureshi v. Controller Examination, Board of Intermediate & Secondary Education, Lahore (PLD 1994 LHR 3); (xvii) that when no further step is taken within one year of issuance of Notification under section 4 ibid, the acquisition proceedings die their natural death. Rely on Touqir Ahmed Khan and others v. Govt. Of Pakistan (1994 MLD 1866), Qudrat Ullah and others v. Govt. Of West Pakistan and others (1992 CLC 680), Muhammad Afzal v. Land Acquisition Collector etc. (NLR 1992 Rev. 34) Mukhtar Ahmed & others v. Commissioner Sargodha Division & others (1991 CLC 1539), Kh. Zubair Ahmed v. Collector & others (1990 MLD 1941), Nazar ul Hussain v. The Collector Lahore District, Lahore and others (PLD 1990 LHR 472) and Syed Mehboob Alam Shah and others v Deputy Commissioner and others (1989 CLC 1801). 10. The legal formulations canvassed by learned counsel representing the respondents as well as those forming part of their written submissions (skeleton arguments) can be detailed in the following lines: (i) That order, dated 16.11.1999, being relied upon by the petitioners, cannot be dubbed as consent order, thus, no obligation was casted upon the respondents; (ii) that as order, dated 16.11.1999, was passed on the basis of judgment dated 18,11.1997, rendered in ICA No.146/1996, the said judgment should be read as a whole and petitioners cannot be allowed to introduce interpretation of their own choice; (iii) that the period of one year stipulated in judgment, dated 18.11.1997, was backed by the peculiar circumstances of the said case and the said stipulation in no way can be applied to the petitioners. Adds that contents of order, dated 16.11.1999, show that the time frame given in the said order was confined only to the decision of application of the petitioners; (iv) that despite issuance of status-quo order in the present writ petition, the petitioners have been approaching the respondents for issuance of requisite NOC to develop their private housing scheme while pressing into service the precedent of Palace Town Housing Scheme which is proof positive of the fact that the petitioners themselves have been violating the injunctive order passed by this Court; (v) that the acquiring agency enjoys the power to use the acquired land for the purpose other than that for which the same was acquired. Relies on Fazal Rahim and 6 others v. Commissioner Peshawar Division and another (PLD 1979 Peshawar 91) and Sahib Dad Khan Advocate v. Commissioner Rawalpindi Division and others (PLD 1969 LHR 267) and; (vi) that after issuance of injunctive order by this Court, no further step could be taken towards the acquisition of the petitioners' land and it was only in the wake of their statement recorded in order, dated 22.07.2002, the acquisition proceedings were initiated, thus, no exception can be taken to the said proceedings on the ground that they were initiated in violation of the status-quo order passed by this Court; (vii) that vide order, dated 11.06.2003, though this Court stopped the respondents to allot plots, however, it observed in unequivocal words that further proceedings shall continue which fact lends support to the respondents' version that the Court was aware about the circumstances forming background of the petitioners' statement incorporated in order dated 22.07.2002; (viii)that if, for the sake of arguments, it is admitted that the orders passed in the earlier writ petition was a consent order, even then there was no order by this Court regarding issuance of NOC in favour of the petitioners rather it was observed that in case the LDA did not finalize the matter of acquisition within one year, the petitioners' application would be reprocessed and in compliance with the orders passed by this Court the application of the petitioners was not only reprocessed but the order of the competent authority regarding rejection of their request was also conveyed to the petitioners, thus, no order was flouted by the respondents;
---
## Page 7
(ix) that as per section 35 of the Act, 1975, it is discretion of the authority either to grant approval for setting up of a private housing scheme or refuse to do so. The only condition is that reasons for rejection of an application for issuance of NOC regarding development of a private housing scheme, should not. Be arbitrary, capricious or fanciful. The grounds pressed into service by the respondents while turning down request of the petitioners to set up a private housing scheme, in no way,' can be considered as arbitrary, capricious or fanciful inasmuch as the request of the petitioners was refused on the premises that as the site of their proposed private housing scheme was in conflict with the proposed housing scheme of the Authority itself; (x) that after submission of revised lay out plan by the petitioners for approval, the same was to be processed afresh according to the relevant rules and regulations irrespective of an order passed by any Court of law; (xi) that this Court while hearing a petition under Article 199 can only adjudge…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.