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Petitioner: A.M. KAMAL Through Legal Heirs And Others VS Respondent: LAHORE IMPROVEMENT TRUST
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title: A.M. KAMAL Through Legal Heirs And Others vs LAHORE IMPROVEMENT TRUST Case No.: Regular Second Appeal No. 938 of 1979R.S.A. No.383 of 1964 Date of Judgment:1996-05-08 Reported As: 1997 CLC 121 Result: Appeal dismissed
JUDGMENT
JUDGMENT This judgment shall dispose of following three connected appeals as they arise out of the same judgment and decree: (1) R.S.A. No.938-79 titled A.M. Kamal etc. v. Lahore Improvement Trust. (2) R.S.A. No.974-79 titled Abdul Wajid etc. v. Lahore Improvement Trust. (3) R.S.A. No.56-80 titled Sajjad Hussain v. A.M. Kamal etc. 2. Sajjad Hussain, appellant in (R.S.A. No.56/80) and his father Pir Abdul Wahid deceased predecessor-in-interest of the appellants in two connected appeals are refugees from East Punjab where they had left considerable immovable property including the carpet manufacturing and cloth weaving factories. On their migration, to Pakistan, building No.E/546 situate inside Shahalmi Gate, Lahore, was allotted in the name of Sajjad Hussain, appellant (respondent No.2 in R.S.A. 938- 79) wherein he alongwith his father started their business of cloth weaving and carpet manufacturing which building was thereafter demolished by the Military authorities in the year 1948. Loss suffered by them was assessed as Rs.2,500 payable by the Government. 3. Subsequently, building No.E/547(1 to 17) situate inside Shahalmi Gate, Lahore is alleged to have been allotted to Sajjad Hussain, respondent No.2, whereupon he alongwith his father raised some construction for the purpose of their residence and a factory. Later on, in exercise of powers under section 3 of the Punjab Development of Damaged Areas Ordinance, 1948, the Government of Punjab, declared the area situate inside Shahalmi Gate/Pari Mahal as a damaged area, wherein above-referred premises are also situate, under sections 4 and 5 of the Ordinance. L.I.T. Proposed and published a development Scheme for the said area on 2-2-1949 (Exh.D/2). Objections were called from the general public Muhammad Hussain, deceased, respondent No.3, who is presently
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represented by his L.Rs also filed the objections against the proposed scheme. All the objections were considered and rejected vide order dated 5-3-1949 Exh. D/3 and the Scheme was sanctioned and forwarded to the Government which was sanctioned by the Government vide Notification dated 28th August, 1957, published in the official Gazatte of 6th September, 1957 (Exh.P/26). The sanctioned Scheme is reproduced as under:--- OFFICE OF THE LAHORE IMPROVEMENT TRUS1, LAHORE Copy of the Letter No.F-16(23)/57-P-II, dated, 16th May, 1957 from the Deputy Secy., Ministry and Rehabilitation, Karachi to the Secretary to Government of West Pakistan, Refugees and Rehabilitation Department. Subject:ACQUISITION OF EVACUEE LAND WITHIN THE DAMAGED AREA DEVELOPMENT SCHEME OF THE LAHORE IMPROVEMENT TRUST With reference to yours Letter No. 127-R&R-IR-57 dated the 30th January, 1957, I am directed to say that in exercise of the powers conferred by section 16(3)(b) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) the Central Government is pleased to accord approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act, 1894 as modified by Punjab Development of Damaged Areas Act, 1952 of evacuee Lands as per details shown in the attached schedule situated in Lahore 14 Development Scheme on the following conditions:--- (I)That in the case of all plots above 16 Kanals in area 25 % of the land made available for construction of buildings in the scheme would be resumed for allotment of displaced persons who have registered claims for Urban Immovable property under the Registration of Claims ' (Displaced Persons) Act, 1956. (II) That fair compensation for the acquired property will be assessed in accordance with the principles laid down in the said Act in consultation with the Custodian, Evacuee Property, Lahore and paid to that officer for credit to the evacuee owners account. (III) The refugees if any settled thereon will be provided with alternative land. No.4102-B&R-IR-57 Dated 30th/Ist May, June, 1957. 1. The Secretary to Government of West Pakistan, Social Welfare and Local Government Departments in continuation of this department endorsement No. 127-B&R-IR-57 dated 30-1-1957. 2'. The Deputy Rehabilitation Commissioner, Lahore. The compensation money should be credited under sub-head sale proceeds of immovable property and debts due to evacuee etc. 10% of compensation assessed should be adjusted on account of administrational charges. This amount should be credited to the head 'XLVI-A. Miscellaneous other fees and forfeitures (q) fees for administration of Evacuee Estate. Under intimation to the Accounts Officer, Rehabilitation Department, Poonch House, Lahore. 3. The Custodian of Evacuee Property, Lahore. The question of assessment of the compensation for the acquired property may please be taken up directe with the acquiring department. 4. The Secretary (U) to the Rehabilitation Commissioner, West Pakistan, Lahore. 5. The Commissioner, Lahore Division, Lahore. (Sd.) Under Secretary, for Secretary to Government of Pakistan Refugees and Rehabilitation Department. 4. The Central Government of Pakistan, Refugees and Rehabilitation Department, vide Letter No.F- 16(23)/57-P-II dated 16th May, 1957 (Exh. P/9), granted permission to acquire the evacuee land which was included in the scheme in accord with the provision of Land Acquisition Act, 1894, as modified by Punjab Development Damaged Areas Act, 1952, which letter is reproduced as under:-- - (To be published in West Pakistan Gazette, Part I-A). WEST PAKISTAN GOVERNMENT
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SOCIAL WELFARE AND LOCAL GOVERNMENT DEPARTMENT TOWN IMPROVEMENT The 28th August, 1957 No.2727-C&T-57.--In pursuance of the provisions of the subsection (3) of section 3 or section 6 of the Punjab Development of Damaged Areas Act, 1952, it is hereby noted that the Government of West Pakistan have sanctioned the scheme framed by the Lahore Improvement Trust under section 4 of the West Pakistan Damaged Areas (Development) Ordinance No.5 of 1948, for an area measuring 37.68 acres approximately bounded by Kutcha Tobian. Dabbi Bazaar and Kasera Bazaar on the North, Kucha Soodan, Kutcha Hawagaran, Bazaar Mochi Gate, Kutcha Chabak Sewaran and a depth of approximately 90' to the East of Gali Wanwattan on the East, city Sewar on the south and Kutcha Dogran, Matanwali Gali, Kucha Telian on the West, Lahore. More particularly shown on a map attached hereto. 2. Area of boundaries.--The land comprised in the scheme has an area ofapproximately 37.68 acres. It is bounded as follows: --- North ------------------Kucha Tobian, Dabbi Bazaar and Kasera Bazaar. East------------Kucha Soodan, Kucha Hawagaran, Bazaar Mochi Gate, Kucha Chabak Sawaran and a depth of approximately 90' on the east of Gali Wanwattan. South City Sewar: West ------------Kucha Dogran, Matanwali Gali, Kutcha Telian. 3. Acquisition of land.--The Lahore Improvement Trust in hereby authorised to acquire either under the Punjab Development of Damaged Areas Act, 1952, or by purchase, lease, exchange or otherwise the whole or any part of the land or any interest in the land comprised in the area of the scheme as described in clause 1, subject to the condition that the evacuee property involved in this scheme shall be acquired in accordance with the instructions of the Central Government contained in their Letter No.F. 16(23/57) P.II dated the 16th May, 1957, a copy of which was sent to the Chairman, Lahore Improvement Trust, Lahore, with West Pakistan Government endorsement No.2611. C&T-2-15-56, dated the 18th June, 1957. 4. Contents of the Scheme.--The Scheme provide for the following:--- (1) The retention, letting on hire, lease, sale, exchange or disposal otherwise of any land vested in or acquired by the Improvement Trust. (2) The demolition of buildings or portions of buildings which are unfit for the purpose for which they are intended and which obstruct light or air project beyond the building line laid out under the scheme. (3) The relaying out of any land comprised in the scheme, and the redistribution of sites belonging to owners or property comprised in the scheme. (4) The laying out and alteration of streets. (5) Open spaces in the interests of the residents of any locality comprised in the scheme or any adjoining locality and the enlargement or alteration of existing open spaces. (6) The raising, lowering, or reclamation of any land vested in or to be acquired by the Improvement Trust for the purpose of the scheme and the reclamation or reservation of land for the production of fruit, vegetables, fuel, fodder or for any other purpose for the residents of the local area. (7) The draining, water supply and lighting of streets altered or re-- constructed. (8) The system of drainage and sewers for the improvement of ill drains and insanitary locality. (9) The doing of all acts intended to promote the health of residents of the area comprised in the scheme, including the conservation and preservation and from injury or pollution of river and other sources and means of water supply.
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(10) The demolition of existing buildings and the erection and re-erection of buildings by the Improvement Trust or by the owners or other persons authorised by the Improvement Trust or by the Improvement Trust, in the event of the default by the owners or such persons. (11) The advance to the owners of land comprised within the scheme upon such terms and such conditions as to interest and sinking fund otherwise as may be prescribed under the scheme, of the whole or part of the capital requisite for the erection of building in accordance with the scheme. (12) The provision of facilities for communication. (13) All other matters which the Provincial Government may deem necessary for promoting the general efficiency of the scheme or for improving the locality comprised in the scheme. 5. Object of the Scheme.--(1) To provide well-laid out and orderly development having streets of adequate width and satisfactory sitting and open spaces and other amenities sufficient for the area to be developed. . (2) To set up a standard for positive development consistent with the standard laid down by the Trust in regulative Town Planning Scheme encouraging thereby the individual developer to improve his standard. (3) The layout of the area shall be in accordance with Drawing D.S.404.B/4-51 prepared by the Town Planner. The layout allocates 123 Kanals for plots, 117 Kanals for roads, 112 Kanals for open spaces and 13 Kanals under existing building and mosque. (4) The operations in this area will be controlled by the schedule of clause given in Appendix ' A' attached. APPENDIX 'A' 1. CONTROL OF BUILDING OPERATIONS. Type of buildings which may be erected:-- (a) The type of buildings permitted shall be shops on the ground floor and residential buildings above and their use for any other purposes is prohibited. (b) For the purpose of this scheme:--- . (i) Shop---Means a building other than a petrol filling station designed for use for the purpose of carrying on retail trade and shall include shops with residential accommodation above; (ii) Residential building---Means a building designed for use for human habitation for more than one family and shall include use as offices and business purposes other than a shop. 2. RESERVATION OF LANDS. The several areas of land specified in column (i) of the following table shall be reserved for the use for the respective purposes indicated in column (ii) of the table---. TABLE 12 Indication on the drawing of landUse for which lands are reserved. reserved. Coloured Red.Streets (other than public streets) and widening of existing streets. Coloured Green.Open spaces on which building Operations arepermanently prohibited. 3. NUMBER OF BUILDINGS ON EACH SITE No plot shall be of a size less than that shown on Drawing No.D.S./404-P/4-51 and not more than one building shall be erected on any one plot but, two or more plots may be combined for the purposes of the erection of one building. 4. USE OF LAND.
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The area shall not be used for any purpose even though not involving the re-erection of building inconsistent with the scheme. 5. PROPORTION OF SITE WHICH MAYBE OCCUPIED BY BUILDINGS Not more than 2/3rd of the total area of the plot shall be covered by building at each floor. Notwithstanding this the arcade in front of the shops shall be considered as open, and the remaining area to make the required one---third open space shall be provided in the form of a courtyard at the rear of the building and shall be independently accessible for cleaning purposes. 6. ARCADE IN FRONT OF SHOPS 10' wide arcade to be used as footpath for the pedestrians shall be constructed in front of shops throughout and no building obstruction of any kind shall be allowed within the arcade. It shall conform to the design of the arcade approved by the Trust. 7. HEIGHT OF BUILDINGS Height of buildings measured from the crown of street on which it abuts and of such storeys shall be as follows:--- width Max. Plinth Ground 1st2nd3rdBarsatiParapet streetheightfloorfloor floor floorwall on allowedthe top most. 20'&25'35'2'18'12'3 30'45'2'18'12'3' 40'&50'57'2'18'.12'12'10'3' 80'60'2'18'12'12'12'10' 3' Notwithstanding the above height restrictions, the following constructions shall be allowed:--- (a) a balcony at the rear of a shop at height of not less than 10' from the floor level of shop and shall not cover more than 1/3rd the floor area of the shop; (b) staircase roofing at the top floor of height not exceeding 8 feet above the roof level of the topmost storey, but not Barsati. NOTE.--The word Barsati shall mean a room or rooms, including a latrine or latrines, for occasional use, but, it does not include a sitting room or rooms used for ordinary residential purposes. The height from floor to ceiling of such a Barsati shall not exceed 10' and shall not cover more than one- half of the total roof area and shall be constructed on the side of the building towards road way. 8. PROJECTIONS FROM THE FACE OF BUILDINGS (a) No thara, steps, bay window, porch or any other projection shall be constructed so as to project over on or under any street existing or proposed. (b) Nothing contained in the clause shall prevent the projection of (1) a window sill for a distance of not more than 2-1/4' at a height of not less than 2'---6' above the plinth and (ii) a sunshade for not more than a distance of 1'---3' at a height of not less than 7' clear above plinth. (c) Notwithstanding what is contained in clause No.8, an uncovered balcony projecting not more than 3' may, be constructed at the rear of this building towards the courtyard. 9. SIZE OF ROOMS The minimum floor area of a room which might be used for human habitation shall be 100 s.Ft. 10. CONTROL OF DESIGN AND ELEVATION. The design and elevation of building shall conform to the design of elevation approved by the Trust. The material used in the constructions, their texture, colour and finishing shall also comply with the specifications approved by the Trust. , (Sd.) (SHER BAHADUR KHAN), DEPUTY SECRETARY TO
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GOVERNMENT WEST PAKISTAN, SOCIAL WELFARE AND LOCAL GOVERNMENT, DEPARTMENT. The premises in question, hence, were acquired by the Collector for the L.I.T. As per provisions of the statutes referred to above. 5. Another development which had taken place during the interregnum is that the property now in dispute between the parties was put to open auction by the L.I.T. And the tenders were filed by various persons including Muhammad Hussain, deceased, respondent No.3, on 14-11-1953 (Exh.P-8) who after acceptance of his highest bid of Rs.1,27,000 on 14-12-1953 (Exh.P-12) deposited the offered price. On 11-7-1995, the notice (Exh.P-27) was issued to the allottees of the premises referred to shove for taking over the possession of the suit property whereafter possession of the lower portion was taken, however, the possession of upper portion could not be taken from the allottees. On 25- 8-1955, M/s. Pir Abdul Wahid and his sons A.M.Kamal and Abdul Rashid impleading Sajjad Hussain as defendant No.2, filed a suit for grant of decree to; permanent injunction, restraining the L.I.T., respondent No.1, from ejecting them from building No.E/547 (1 to 17), Parimahal, Inside Shahalmi Gate, Lahore raising following pleas therein:--- (a) That the property in suit could not be acquired by the defendant or by any other authority. The so-called acquisition if any is void, illegal and without jurisdiction. (b) That no permission of the Central Government or of any other authority has been obtained for the acquisition of the disputed property. (c) That the procedure necessary for acquisition has not been complied with. In fact even the fact of acquisition has not been notified. (d) That the scheme under which the disputed house has been acquired has not been sanctioned by the Provincial Government and for this reason too the acquisition is void. (e) The defendant No. l could not sell the property in suit to any body else in preference to the plaintiffs. (f) The defendant No. l was bound to give the first opportunity of purchase to the plaintiffs which he failed to do. Right of prior purchase has also been claimed in the plaint on the basis of their claim to the effect that the property was agreed to be sold to them by the Chairman of the Trust. The averments regarding the abovementioned claim are contained in paragraphs Nos.6 and 7 of the plaint, which are reproduced as under:--- "6. That the plaintiff represented to the Punjab Government through the Hon'ble Chief Minister, Punjab on which he received a communication from the Deputy Rehabilitation Officer, walled City Lahore assuring the plaintiffs that as and when the above property is sold the plaintiffs would be given the preferential right to purchase the same. 7. That the plaintiffs applied to the Chairman of the defendant Trust for purchase of this property with the result that the sum of Rs.2,500 mentioned in para. No.3 was treated as an advance but subsequently it came to light that the defendant No. l had sold the above property to ,some other person. " 6. The suit has been contested by defendants Nos. l and 3, whereas Sajjad Hussain, defendant No.2, admitted the same. On the basis of the pleadings of the parties, learned trial Court framed the following issues:--- (1)Whether the acquisition of the suit property by defendant No. l is illegal and void? O.P.P. (2) Whether the defendant No. l could not sell the suit property to any body except the plaintiffs? O. P. P. (3) Whether plaintiffs have served the defendant No. l with a notice under section 98 of the Punjab Town Improvement Act, 1922? O.P.P.
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(4) Whether the suit is maintainable? O. P. P. (5) Whether the suit is properly valued? Q. P. P. (6) Whether this suit is barred by section 31 of the Punjab Development of Damaged Areas Act, 1952? O.P.P. (6-A) Whether the third defendant has any right in the disputed property, if so, to what extent? O.P.D.3. (6-B) Whether the defendant No. l was competent to auction the property in suit in 1953 to defendant No.3? O.P.D. (7) Relief. 7. In support of their case, both the parties led oral as well as documentary evidence. Plaintiffs examined 19 witnesses including the plaintiff No. l himself who appeared as P.W. 19, whereas the general attorney of the defendant made a statement tendering into evidence various documents and Mian Alauddin appeared as the sole D.W. 8. Muhammad Aslam Khan P.W.1, Accountant of the office of the Chief Settlement Commissioner, deposed that he did not have the detailed description of property E/547, however the same has been acquired. According to the witness, no compensation has been paid for acquisition of the said property. Muhammad Saeed P.W.2, is the Record Keeper of the Office of Land Acquisition Collector and deposed that he could not produce the record. Muhammad Ashraf P.W.3, Clerk of Urban Branch of the Office of Chief Settlement Commissioner, deposed that on 3-6-1972 the Secretary Local Government and Social Welfare Government of Punjab had demanded a report in reference to the property No.E/547 and that the certified copy of the reply whereto is Exh.P-I. Wali Pasha P.W.4, Record Keeper of L.I-T., produced certified copy of show-cause notice issued to defendant No.3 as Exh.P-5. He, however, admitted that this property was sold by defendant No. 1. In favour of Muhammad Hussain defendant. Sultan Ahmad, P.W.5, Deputy Settlement Commissioner Centre II, deposed that a temporary order of allotment of property No.E/548 was made in favour of defendant No.2 on 24-3-1960 and it bears the signatures of Khan Bahadur Muhammad Yusuf, Rehabilitation Officei. He also produced a copy of the order dated 17-8-1948 (Exh.P-3) whereby Sajiad Hussain defendant No.2 was permitted to complete the building at his own cost which document bears his signatures. He, however, has admitted that he was not aware as to what were the contents of the application filed by the defendant No.2. S.M. Hamid All P.W.6, Advocate, deposed that from 1953 to 1956 he has been working as Deputy Rehabilitation Officer of Walled City and that Exh. P-3 bears his signatures. According to the witness as per instructions of the Government an authorised occupant of the evacuee property was allowed to construct the building thereon and an unauthorised occupant was to be ejected. During the cross-examination, he has stated that he is not in a position to tell as to what portion of the suit property was allowed to be reconstructed vide order Exh.P-3 and how many persons were the allottees thereof. Muhammad Sadiq p.W.7, Section Officer, Government of the Punjab, deposed that in relation to Property No.E/547 (A & D) an enquiry was pending with him against defendant No.3 to get him prevented from collecting rent thereof and in this behalf letter dated 9-4-1972 Exh.P-4 was issued by the Secretary, Local Government. On being cross-examined he told that enquiry was initiated upon the application of M/s. Muhammad Yusuf, Muhammad Jameel and Abdul Hameed on 22-2-1972. Ghulam Muhammad P.W.8, Ahmad to Land Acquisition Collector, L.I.T., has deposed that building No.E/547, Parimahal was not acquired. In cross-examination, he shows his ignorance about the sale of the property by L.I.T. Ashiful Haque, P.W.9, Project Director, WAPDA, who had been Executive Engineer, Rang Mahal Division proved a letter Exh.P-6 pertaining to the disconnection of installations in the nature of factories in the residential areas and also deposed that he had visited the Pari Mahal building in this connection. Saiful Rehman, Copy Clerk of the L.I.T., has produced the certified copy of the office noting Exh.P-7 whereby Secretary of the Trust on 9-5-1955 reported to the Chair, L.I.T.,
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that their position in the case was very weak. He also produced a copy of tender filed by the defendant No.3 as Exh.P-8 and its conditions as Exh.P8/A, copy of letter dated 16-5-1957 Exh:P-9 granting permission to L.I.T. To acquire the land in the damaged, areas of the Development Schemes framed by the L.I.T. Besides other documents, he produced Exh.P9/A to Exh.P-10, copy of Resolution No.45 dated 30-11-1953 whereby approval was accorded to the highest bid of defendant No. 3, Exh.P-11 copy of letter dated 29-12-1958 whereby Secretary L.I.T. Required defendant No.3 to arrange for the payment of Rs.63,500,00, Exh.P-12 and P-13, the copies of letter dated 22-7-1959 and 24-4-1974 respectively, Exh.P-14 copy of application form of the plaintiff, Exh.P-15 and Exh.P-16 copy of a letter informing plaintiffs that application dated 26-3-1952 and letter from Secretary, L.I.T. Dated 26-12-1969 are not available on the file, therefore, copies cannot be supplied, and a copy of policy letter dated 26-12-1969 Exh.P-17, regarding the allottment/sale of plot in Shahalmi Gate Scheme, Lahore. Khadim Hussain, p.W.12, deposed that he was a refugee from town Shahbaz District Kamal and has migrated to Pakistan in 1947,. Whereafter he settled at Lhotta Pari Mahal No.E/546 which house collapsed in 1948 after 2/3 months whereafter he is allotted Block A of E/547 which allotment was made by Zafarul Ahsan and that the plaintiff was allotted the same house in July, 1948, whereafter he was tried to be ejected by the L.I.T. In the year 1952 and was ultimately turned out in the year 1959. He claimed that he had accompanied plaintiff on 26-3-1952 to meet Zafarul Ahsan who directed him to apply in writing, hence, an application was filed by him. In cross-examination, he however, states that no allotment of. The questioned building was made and that defendant No.1 had got vacated the…
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