RAWALPINDI DEVELOPMENT AUTHORITY, RAWALPINDI Versus SADIQA BEGUM

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.S.A. 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.

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 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 Governor 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, 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 under 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 activities of 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.