Ch. MEHRAJ DIN vs LAHORE DEVELOPMENT AUTHORITY
This matter arises from a petition for special leave to appeal against the dismissal of a civil revision by the Lahore High Court, upholding the vacation of a temporary injunction regarding the threatened demolition of shops by the Lahore Development Authority (LDA). The core legal question is whether the LDA can issue a demolition notice under section 40 of the LDA Act for structures erected prior to the enactment of the statute. The Supreme Court held that the provisions of the Lahore Development Authority Act, including section 40, are prospective in operation and do not apply to constructions raised before the statute came into force. Finding that the LDA had tacitly admitted in its written statement that the shops were constructed in 1958, prior to the establishment of the LDA, the Court concluded that the petitioner had a strong prima facie case. Consequently, the Court converted the petition into an appeal and granted a temporary injunction restraining the LDA from demolishing the remaining shops during the pendency of the underlying civil suit.
- Whether section 40 of the Lahore Development Authority Act 1975 is prospective in nature?
- Can the Lahore Development Authority demolish structures constructed before the enactment of the Lahore Development Authority Act 1975?
- Does an admission in a written statement regarding the date of construction preclude a party from contending otherwise?
- Section 40(1), Lahore Development Authority Act 1975
- Section 40, Lahore Development Authority Act 1975
ORDER
MUSHTAQ HUSSAIN, J.--19 shops situated at Talab Mela Ram were sought to be demolished by the Lahore Development Authority on the ground that they had been constructed without permission.
On 28th February, 1978 Notice under section 40 (1) of the L. D. A. Act was served upon the petitioner.
The petitioner thereupon filed a civil suit on 19th April, 1978 against the pro--jected demolition of the shops and also submitted an application for temporary injunction. An ad interim temporary injunction was granted by the learned civil Court but the same was vacated on 24th November, 1979. The petitioner filed an appeal to the District Judge which was dismissed on 11th December, 1979. Civil Revision No. 1440 of 1979 filed in the Lahore High Court was similarly dismissed on 12th November, 1980 wherefore this petition for special leave to appeal.
2. The Lahore Development Authority was notified and is represented by Mr. Farooq Zaman, Advocate.
3. The submission of the petitioner is that he had constructed nine shops on the land which was evacuee property. That on the basis of this construc--tion he sought and obtained transfer of the land in dispute under Scheme VI for which it is a condition precedent that the claimant for transfer must have constructed upon the plot concerned. He claims that he constructed the shops in 1958 wherefore it was not open to the L.D.A. To demolish them as they were constructed long before the L.D.A. Came into being.
4. Mr. Farooq Zaman, Advocate, has vehemently contended that the shops had been constructed much after 1958. Unfortunately he cannot be heard to say so as in the written statement filed on behalf of the L. D. A. By its General Attorney in answer to the paragraph that the shops were built in 1958 it was only contended that it did not need any reply. In other words the L. D. A. Accepted the position of the petitioner. The L. D. A. Act having come into being in 1975 and section 40 of the Act being prospective like the rest of the Act, a Notice under section 40 of the Act would be relatable only if the construction is made after the Act came into force.
5. The petitioner, therefore, has a strong prima facie case and would suffer irreparable damage if the shops are demolished pending the disposal of the suit. The balance of convenience is also in favour of the issuance of a temporary injunction wherefore we convert this petition into an appeal and direct the L. D. A. Not to demolish any of the eight remaining shops during the pendency of the suit.
6. The parties shall be left to bear their own costs.
Cited by 1 case
- Muhammad Khalid Javed and others vs Lahore Development Authority 2021 PLD Lahore 211, 2020 LHC 3294