BEFORE DEVELOPMENT AUTHORITY COMMISSION, LAHORE

PRESENT:

Mr. Javaid Akhtar, Chairman.

Mr. Muhammad Yousaf, Member.

Reference No. 40/2017

Mst. Tahira Khatoon wlo Mian Mohammad Sharif, House No. 24, Block E, MA , Lahore.

Applicant

Vs.

1. Lahore Development Authority through Director General, 467/0-11, Main Boulevard, M.A. Johar Town, Lahore. 2. Director, Land Development-I, 467/0-11, Main Boulevard, M.A. Johar Town, Lahore. Respondents

Order

Mst. Tahira Khatoon wlo Mian Mohammad Sharif submitted an application at One Window on 29.04.2015 vide receipt No. 2139683 for filing reference to the LOA Commission. The Authorized Officer under sub• section (4) of section 32 of the LOA (Amendment) Act, 2013 read with sub• rule (1) of the Rule 7 of the Lahore Development Authority Commission Rules, 2014, referred the case to the Commission which was received on 16.01.2017. It was entered in the Institution Register at Serial No. 40 of 2017. Notices were issued to the applicant, the Director General LOA and Director Land Development-I, Land Acquisition Collector, LOA and Patwari Halqa Thokar Niaz Beg. The statement of applicant was recorded on oath and record of Patwari and LAC branch of LOA was consulted. The documents produced by the applicant, patwari halqa Thokar Niaz Beg and LAC were examined and photo copies thereof were placed on the reference file. File of the plot No. 24 Block-E, attached with the reference by the Estate Management Directorate-I (hereinafter referred to as plot file) was examined. "

1 2. The reference mentioned that in the light of court orders dated 21.12.2006 passed by Ch. Furrakh Hussain, Civil Judge, Lahore in suit titled "Tahira Khatoon vs Pubic at Large etc." the plot was transferred in the name of Tahira Khatoon % Shah Muhammad Shahi vide letter No. JT• BWL-193-3/739 dated 24.01.2011. The LOA further informed that the said transfers was carried out on the same terms and conditions as it was held by the original exemptee. The first issue therefore before this Commission was whether it had jurisdiction to pass an order in the reference, when a civil court had passed a judgment and LOA in compliance with the orders of the court has transferred the plot. Mrs. Azra Israr, Advocate and Malik Israr Elahi, Advocate appeared on behalf of the applicant on 09.03.2017 and pleaded that the Commission can process and make recommendations on the reference sent by LOA. They also desired to file written arguments on the next date of hearing. But, meanwhile the applicant filed a writ petition No. 7937 of 2017 and prayed that "the impugned letter dated 12.08.1996 may kindly be declared as illegal, malafide without any lawful authority and the same may kindly be set aside/withdrawn with the direction to respondents especially the Respondent No. 4 to immediately decide the matter of the petitioner by appreciating the material evidence and declaring the petitioner as lawful/ bonafide purchaser in possession of the property known as plot No. 24, Block E measuring 420-sq.M. (1-Kanal), situated at Mohammed Ali Johar Town Scheme, Lahore". Mr. Masud Abid Naqvi honorable Judge of the Lahore High Court passed the following order on 17-03-2017 in this writ petition:

"I am inclined to transmit a copy of this petition alongwith its all annexures to the respondent No.4 (Chairman, Land Development Authority Commission, LOA Complex Hamdard Chowk TownShip Lahore), who shall treat it as a part of petitioner's pending application and will decide the same strictly in accordance with law through a well-reasoned order after hearing all the concerned parties within 01-month."

The Commission started hearing of the reference and requested also to the honorable Lahore High Court to extend the time for decision on the reference.

3. According to the reference filed by the LOA:

"One Mehmooda Begum % Nasir Ud Din claimed ownership of land measuring 6 Kanal and 129 SFT in Khasra No.86, Mouza Mian Mir which falls in Upper Mall Scheme. She was entitled to get plots of land measuring 4 Kanal and 86 SFT as per exemption policy of

2 ~.Og.'2.-.rt- Upper Mall Scheme, Lahore (page No. 01 of noting section). But due to unavailability of plots in Upper Mall Scheme she was allocated plot numbers 22, 23, 24 and 25 Block-E of M.A. Johar Town, Lahore (reference page NO.5 of noting section).

Allocation letter of plot No.24 Block-E of M. A. Johar Town was issued in favour of Mst. Mehmooda Begum vide Letter No. JT-BWL- 193-B/137 dated 05.01.1989 (Page 01/C). Exemption letter was issued vide letter No. JT-BWL-193-B/801 dated 21.02.1989 (Page 19/C). The allocation and exemption letter were issued under certain terms and conditions. Clause 07 of allocation letter and clause 17 of exemption letter are reproduced as under: "7). That, if at any stage, your title is proved to be defective or is discovered that the exemption has been procured fraudulently the allocation of the plot shall stand automatically with-drawn. 17). That if at any stage, your title is proved to be defective, the exemption of the plot shall stand automatically withdrawn and LOA will entitled to take over the land alongwith structure standing thereon without payment of any damage or compensation. (E

& 0 are to be taken up at any stage). JJ Possession order of plot No. 24 block-E of M.A. Johar Town was issued vide letter No. JT- BWL-193-8/1984 dated 12.04.1989 (Page 31/C). The plot was then transferred in the name of Ch. Shah Muhammad Shahi Slo Mian Ali Muhammad vide letter No. JT-BWL- 193-B/1949 dated 04.04.1990 (Page 69/C) on the basis of registered sale deed registered by Sub Registrar, Sadar, Lahore vide document No. 7119, book No. 01, volume No. 802 dated 25.05.1989 (Page 35- 43/C). Later on, in the light of court orders dated 21.12.2006 passed by Ch. Farrukh Hussain, Civil Judge, Lahore in suit titled "Tahira Khatoon vs Public at Large etc." plot was transferred in the name of Tahira Khatoon dlo Shah Muhammad Shahi vide letter No. JT-8WL- 193-B/739 dated 24.01.2011. It is pointed out that above said transfers were carried out on the same terms & conditions as it was held by the original exemptee.

As per revenue record it was evident that land measuring 6K- 129 SFT falling in khasra no. 86 mouza Mian Meer Upper Mall Housing Scheme stands in the favor of Central Government in ownership column thereafter, vide PTO No. CS.FC.21, CSC-4-28, CSC-5-17-323 dated 30-08-87 the land in dispute was transferred in favour of Mst. Mehmooda Begum daughter of Nasir Ud Din. 3 • ~",.:tolr Subsequently award was announced in 1972. No doubt, certain plots were exempted in favour of Mst. Mehmooda Bagum in lieu of her ownership in M.A. Johar Town Scheme, as no plot was available in Upper Mall Scheme, Lahore. The plots exempted to Mst. Mehmooda begum were cancelled from her name vide office letter no. DLD/LDA- 2648 dated 27.07-1996 (Page 183/C of main file) in accordance with Judicial verdict passed by president LOA tribunal in case No. 83/75 on 11-04-1979. As per verdict of President LOA Tribunal Lt. Col. Ch. Inayat Ullah, petitioner in case no. 83/75 was found to be the owner of land measuring 2K-18M-18 SFT. Mushtaq Ahmed, the petitioner in case no. 81/75 was found to be the owner of land measuring 2k-18M- 18 SFT and Muhammad Tahir etc. are found to be owner of land measuring 4 marlas (1 marla each). The Honorable Court also declared that the petitioners are entitled to receive compensation subject to any exemption which might be given to them by LOA. One Bashir Ahmed Ward Incharge of the office of Deputy Settlement Commissioner, Lahore has adduced evidence before LOA tribunal that according to record to PTD of land under reference was issued in favour of Mst. Mehmooda begum and the PTD given in reference in respect of land in favour of Mst. Mehmooda begum is fictitious and the petitioners also produced sale deed in their favour before the tribunal. In the light of judgment of tribunal exemption granted to Mst. Mehmooda begum was cancelled on 27.06.1996."

4. On the basis of reports obtained from different quarters, LOA in its reference has made following observations:

I. "Land Acquisition Collector, LOA issued a robkar on 09.03.2015 in order to verify the status of ownership of Mst. Mehmooda Begum. In reply of said Robkar revenue authorities did not verify the ownership of Mst. Mehmooda Begum. II. Verification of dues was sought from Directorate of Revenue which is available at para 33 and 46//N. As per report, amount for 15t transfer fee stand verified and the amounts of first & final demand notices for development charges cannot be verified due to non-availability of record prior to 01.07.1989. iii. The status of plots No. 24 block-E in possession register and at site was sought from Directorate of Estate Management-I, LOA. The Estate branch has reported at para 56-57/N that entry in possession register is vacant and possession was not handed over to anyone. As per site report a double storey house is constructed at site.

4 IV. Report of Town Planning Wing is available at para 60/N which shows that building file of the said plot is not available in record however letter for sanctioning of building plan vide No. BAl310/JT/1279 dated 07.03.1991 (copy provided by applicant) stand verified from dispatch register. The copy of completion certificate was also provided by the applicant which could not be verified from dispatch register due to non-availability of Completion Certificate dispatch register."

5. Tahira Khatoon, the applicant appeared before the Commission and on oath stated that the plot was purchased by her father Shah Muhammad Shahi from Mahmooda Begum and it was transferred by LOA in his name. She identified the signature of her father on transfer application where he committed that as a successor in interest of (assignee) he shall be subject to all the terms and conditions contained in the exemption letter between the transferor and the Lahore Development Authority. Thereafter he gifted this plot to her. During the construction of plot her husband died and she herself got completed the construction of house. LOA issued completion certificate and she started residing in the house. After about three months she shifted to her father's house because her husband died. Later some people made a claim over the house which she contested and got court's order. When she applied for NOC for sale of house LOA informed her that the plot had been cancelled. She claimed that she did not receive the cancellation letter issued by LOA dated 12-08-1996. She admitted that she was not a purchaser rather the plot was gifted to her.

6. The applicant again appeared on 06.6.2017 on the notice of the Commission and in her statement she maintained that in her earlier statement recorded on 04.04.2017 wherein she had referred the civil suit that had no connection with the title of the plot. The suit which she referred was in fact against her tenant who had started alteration in the building. She presented a copy of Civil Suit filed, the order of the court dated 19.04.2004 and the agreement between the Tahira Sharif (the applicant) and tenant Farooq Hammed. (Mark II & III) She claimed that title of the plot was never challenged in any civil court. She also stated that the plot was purchased against a sum of Rs. 1,85,0001- in the year 1989. But when she was confronted with the agreement to sell Mark-I which was recorded between Muhammad Irshad Slo Muhammad Ali RIo 160 Ahmad Block, New Lahore and Shah Muhammad Shahi where the price of plot as Rs. 8,85,000 was agreed, she pleaded that the price of Rs. 8,85,000 was paid by her father but since DC rate was Rs. 1,50,000 the price in document was recorded as Rs. 1,85,0001- She admitted that initially the agreement was signed with Muhammad Irshad, Attorney of

5 ~&f!;"olr Mehmuda Begum, for purchase of plot but later the deal was done directly with Mehmuda Begum.

7. Notices to other witnesses namely Muhammad Irshad s/o Muhammad Ali, Malik Muhammad Munir s/o Aziz ud Din, Malik Muhammad Latif s/o Aziz ud Din and Mr. Suhail Afzal s/o Fazal ud Din and Mehmooda Begum were issued. The appearance of Muhammad Irsahd was found necessary but process server reported that these persons are not available at their given addresses except Malik Muammad Latif who appeared before the Commission and recorded his statement. The new address of Muhammad Irshad was located but his appearance could not be secured. Mehmuda Begum was reported to has died.

8. Malik Muhammad Latif on oath stated that Mr Shah Muhammad Shahi was a government servant probably a Deputy Director in the Agriculture Department. He purchased the plot No. 24 Block E, MA Johar Town for his daughter. The deal was done in the office of daily 'Nawai Waqat' where Mehmuda Begum the exemptee also appeared and payment was made there. But he did not remember how much amount was paid, probably it was between Rs. 8 to 10 lacs. He did not remember that he appeared before 'Ahle-Commission' for identification of the parties before sanctioning of registration of deed but he admitted his signature on the sale deed where he represented the purchaser Shah Muhammad Shahi. This sale deed did not bear the signatures of Shah Muhammad Shahi and sale deed was executed by Malik Muhammad Latif on behalf of Shah Muhammad Shahi. Malik Muhammad Latif admitted that he had no power of Attorney or Authority letter on behalf of Shah Muhammad Shahi. When questioned why he signed on behalf of Shah Muhammad Shahi he pleaded that he is illiterate person and was not aware of the implication of words along with his name over which he affixed his signature. He denied that he or his brother signed application of transfer of plot submitted by Shah Muhammad Shahi.

9. Malik Israr Ilahi Advocate in his statement before the Commission which he recorded voluntarily contended that he was involved in this case since 1996 when a writ petition was filed after the cancellation of the plot and he had meetings with Shah Muhammad Shahi. The writ petition was forwarded to LOA for a decision but LOA did not take any decision. The plot was purchased by Shah Muhammad Shahi for his daughter Tahir Khatoon because he had given other properties to his other children. He claimed that plot was purchased with the contribution of money by Shah Muhammad Shahi and husband of Tahira Khatoon. He admitted that he never met the original exemptee Mst. Mehmooda Begum.

6

(I ~ ~~()I £.-5/ C\. He had no knowledge that there was also any previous agreement to sell to Mr. Muhammad Irshad. Neither anybody brought any claim against this plot. He admitted that another agreement to sell was signed on 22.04.1989 which did not bear the signature of Shah Muhammad Shahi wherein the price of plot has been mentioned as Rs. 8,85,000/-

10. In Reference, LOA about handing over of the possession of plot, has observed that entry in Possession Register is vacant and possession is not handed over to anyone. However LOA has reported that a double storey house is constructed at site. To verify the contention of LOA, the Estate Officer LOA was asked to produce the relevant record. The Commission examined the Possession register and found that entry against plot no. 24 Block E, MA Johar Town is still vacant. The representative of office of Estate Office was therefore directed to submitted a written report about a document produced at Mark-IV (page 000063 plot file) according to which the possession of plot was given to M Nazir Chaudhary the GPA of exemptee. The Estate Officer in its report dated 13.06.2017 (Mark V) stated that "entry regarding delivery of physical possession of Plot No. 24 Block-E, MA Johar Town Scheme to any exemptee/allottee does not exist in the Possession Register. The copy of the possession letter available in the concerned property reveals that the said letter dated 19.07.1989 has no dispatch/diary number affixed on it." The Estate Office has further stated that the missing entries of such plots are entered in the possession register after the approval of concerned Director. However a report filed by Muhammad Zubair Assistant Director (Town Planning) confirmed that building plan in the name of Shah Muhammad Shahi was confirmed on 16.09,1991 vide letter no. 9JT/90/750 and completion certificate was issued vide letter no. BAl31 OJT/1774 dated 30.10.1991 (Mark VI). Later the completion certificate was cancelled by Town Planning wing on 12.08.1996 since the exemption was cancelled the Directorate Land Development. The completion certificate could have not been issued by the Town Planning wing if the physical possession of the plot would have not been with the Shah Muhammad Shahi. These facts removed the apprehensions that some unauthorized persons had encroached the land and later constructed bogus file.

11. Perusal of plot file and record revealed that the plot no. 24 Block E in MA Johar Town was allocated to Mst. Mehmuda Begum 0/0 Naseer-ud-din through her attorney Ch. Nazir Ahmed s/o Umer Din rIo 37- B Lahore vide letter No. JT/BWI-193/B-137 dated 05-01-1989 in lieu of her 'claimed ownership of land' in Khasra No. 86 measuring 06K- 00M-129 sft in Mouza Mian Mir Lahore. The exemption letter was issued vide no. JT/BWL-193-B/801 dated 21-02-1989. Mahmooda Begum through 7 a sale deed registered on 24-05-1989 sold the plot against a sum of Rs. 1,50,0001- as per registered deed to Shah Muhammad Shahi slo Mian Ali Muhammad which was transferred to him on 04-04-1990 vide LOA letter no. JT/BWL-193-B/1949. He subsequently alienated the plot in favour of the applicant through a gift deed registered on 30-06-1992.

12. The applicant filed a civil suit in the court of Senior Civil Judge on 27-04-2005 claiming that her husband Mian Muhammad Sahrif purchased the plot No.24, Block E, MA Johar Town in the name of her father only to console her father. Her husband constructed a house over the plot. Later her father gifted the house in her name through a registered gift deed but the respondent No.5, Sabira Khatoon dlo Shah Muhammad Shahi was claiming her share in the house. The civil court proceeded ex• parte against respondent No.5 after issuance of notices, while one sister, one brother and mother of the applicant appeared through special attorney and made conceding statement in fovour of the plaintiff. The suit was therefore decreed in favour of the plaintiff, the present applicant. In the plaint there was no claim against LOA neither it was made a party. But the LOA transferred the plot in favour of the applicant vide letter No. JT-BWL- 193-B/739 dated 24-01-2011, issued under the signature of Deputy Director LD-I, (page 137 plot file) showing the compliance of the court's order, although the plot was cancelled in 1996 and the Court had not passed any order regarding restoration of the plot in favour of the applicant.

13. The perusal of Revenue Record produced by the Patwari halqa revealed that Khasra No. 86 measuring 06K-00M-123sft was transferred to Qamar ud din Bazida by the Central Government through Mutation No. 424 sanctioned on 20.12.1972. This mutation was sanctioned in pursuance of Deputy Settlement Commissioner's order dated 15.03.1961. After getting ownership the Qamar-ud-din Bazida transferred the land measuring 02K- 18M-28sft in favour of Mushtaq Ahmad slo Muhammad Hussain vide mutation no. 480 and land measuring 03K-02M-102sft in the name of Mst. Tahira Bashir wlo Bashir Ahmad vide mutation no. 481. Tahira Bashir transferred land measuring 02K-18M-18sft to Inyatullah slo Qutab Din vide mutation no. 525 dated 25-02-1979 which was inherited by Azhar Ali and others. The land owned by Inayatullah and Mushtaq Ahmed has been transferred to LOA vide mutation no. 1461 dated 13-01-2003. Therefore as per land revenue record Mahmooda Begum was never owner of the land in khasra no. 86 Mouza Mian Mir Lahore.

The entries in the revenue record are further authenticated by a statement of Mr. Bashir Ahmad Ward Incharge in office of Deputy Settlement Commissioner before Syed Muhammad Zafar Babar President Lahore

8 Development Authority Tribunal in a case titled Lt. Col. Ch. Anyat Ullah vs LOA and others. In that case Mr. Bashir Ahmad on 11-04-1979 stated that no PTD was issued in favour of Mahmooda Begum and number of PTD is fictitious. On the basis of that statement the Tribunal declared the petitioners the owner of the Khasa No. 86. (Pages 000205-000212 File No. JT-BWL-193). As back as in 1979 it was settled that Mehmooda Begum has no land in khasa no. 86 mouza Mian Mir Lahore therefore it is an established fact that Mehmooda Begum got the exemption fraudulently with the connivance of LOA officers and officials.

14. Mst. Tahira Khatoon, the applicant has admitted in her statement and this fact is also evident from above discussion that she is not a purchaser of the Plot No. 24, Block E, MA Johar Town. Therefore her claim of bonafide purchaser asserted in the application form cannot be accepted. But considering this fact that land of MA Johar Town scheme was acquired in 1981 and after about 25 years many of exemptees or transferees will not be in this world, the claim of their heirs have to be considered on merit on the basis of available documents and evidence produced. The Commission therefore decided to consider the application to determine whether Ch. Shah Muhammad Shahi was a bonafide purchaser on the basis of available documents and statements recorded.

15. In view of above discussion it is quite clear that Mahmooda Begum obtained the exemption against the land measuring 06K-00M- 129sft through fraud with the collusion of LOA officers and staff. The LOA Tribunal in 1979 had declared that Mahmooda Begum was not owner in Khasra No. 86 of Mouza Mian Mir. The note portion of the file starts from para 64 which means that previous noting in the file was not included when the office started processing the application of Mahmooda Begum which might have adverse comments against her claim. Despite the notices LOA did not provide the file No. UPM 349 to confirm this presumption. The application of Mehmooda Begum for exemption is also not available in the file which could indicate the date when the application for exemption was filed. However photocopies of note sheet in the plot file indicate that the process of exemption was initiated or reactivated in November 1988. The allocation letter and exemption letters were issued to Ch. Nazeer Ahmad slo Ch Umar Din rIo 37-8, Shad Bagh Lahore GPA of Mehmooda Begum although on the copy of identity card available in the file (page 000027 of plot file) address of Ch. Nazir Ahmad has been mentioned as Mohalla Railway Kwarpuri, Chinot District Jhang. In the file, copy of GPA if any issued, to Ch. Nazir Ahmed is not available. However a copy of 'Ibtal Nama' has been presented by the applicant according to which the power of attorney issued in the name of Ch. Nazir Ahmed was cancelled on

9 ~'_'rr 14.05.1989. Apparently the plot was therefore directly sold in the name of Shah Muhammad Shahi by Mahmooda Begum as per registered sale deed. Hence it was duty of Shah Mohammad Shahi himself to ascertain the ownership of Mehmooda Begum and should had not relied only the exemption letter. But this fact cannot be proved or disproved since Shah Muhammad Shahi and Mehmooda Begum both have died.

The Applicant claimed before the civil court that the plot was purchased by her husband Mohammad Sharif but nowhere in the sale deed his name was mentioned even as a witness. Shah Mohammad Shahi purchased the plot within three months of issuance of exemption letter. The exemption letter was issued on 21-02-1989 and sale deed in favour of Shah Mohammad Shahi was written on 04-05-1989. Ch. Shah Muhammad Shahi first brokered a deal with Muhammad Irshad S/o Muhammad Ali on 22.04.1989 who claimed that he had purchased the Plot No.24 Block E, Johar Town Scheme from Ch. Nazeer Ahmad S/o Umar Din, Attorney of Mehmooda Beguam. In this agreement to sell Muhammad Irsahd admitted that he had received Rs. 1,00,000 as bid money and he would get sale deed registered after the payment of remaining amount of Rs. 7,85,000/• (Mark I). The date of registration of sale deed was initially fixed for 15.05.1989 but later it was extended upto 20.05.1989.

16. Meanwhile on 04.5.1989 Mehmooda Begum wrote a document and claimed that she was sole owner of the plot No. 24, Block E MA Johar Town and had sold this plot to Ch. Shah Muhammad Shahi against a sum of Rs. 1,50,0001- The stamp paper of this document was purchased by Mr. Sardar Shah on 04.05.1989 and was presented to Ahl-Commission on 24.05.1989. This document was not signed by Ch. Shah Muhammad Shahi as purchaser himself but Malik Muhammad Latif slo Haji Aziz-ud-Din Rio 92/B Lahore on his behalf. This document was also signed by Ch. Nazeer Ahmad. There is no document on the file to suggest that in which capacity Malik Muhammad Latif signed the document because neither had he claimed himself as GPA of Shah Muhammad Shahi nor the applicant in her statement gave any such indication. However the argument of the counsel is accepted that in those days the presence of or signature of the buyer on registered sale deed were not necessary, therefore Malik Muhammad Latif signed the document on his behalf. It is pertinent to mention that Ch. Nazeer Ahmad Sio Umar Din GPA of Mehmooda Begum had entered into agreement to sell Plot No. 24 and 25, Block E, MA Johar Town to Muhammad Irshad Sio Muhammad Ali through her GPA against sale price of Rs. 8,25,000/- for each plot and admitted to have receive Rs. 5,00,0001- as bid money (Mark VII). The date of this agreement is not indicated but this document was purchased on 26.03.1989. A cording to

~ (/). 10 - ~ -vs-\o&.t»Ir- LfL agreement sale deed of the purchase was to be registered till 15.05.1989 after making final payment. After signing of agreement for purchase of plots, Muhammad Irshad s/o Muhammad Muhammad Ali prepared a document of agreement to sell the plot No. 24, Block E, MA Johar Town to Shah Muhammad Shahi against the price of Rs. 8, 85,000/- wherein as per document Rs. 1,00,000 was shown having been received as bid money. This agreement is not signed by Shah Muhammad Shahi but bear the signature of Malik Muhammad Latif. Therefore this fact cannot be denied from the perusal of these documents that the market price of the plot was around Rs. 8,50,000/- As such the seller Mehmooda Begum could not sell this plot against a sum of Rs. 1,50,000/- when her GPA Ch. Nazeer Ahmad who negotiated previous deal was also present at the time of Registration of sale deed. Malik Muhammad Latif the only witness available now has also stated that the deal was negotiated between Rs. 8 to 10 lacs. The fact of sale of plot against Rs. 1,50,000/- as mentioned in the Registered sale deed is rebutted from other documents e.g. agreement to sell where price of the plot is mentioned as Rs. 8,50,000/- The contention of the applicant is therefore accepted that the amount of Rs. 1,50,000/- was mentioned to save the stamp and duty charges.

17. This is clear from record and evidence recorded that the exemption of the plot was got allowed fraudulently when the exemptee was not the owner of the land. The applicant is not a purchaser but she is the sole inheritor of the plot under dispute as per order of the Civil Court dated 21.12.2006. The dismissal of application on technical grounds will not resolve the dispute between LOA and the applicant. LOA in its reference or anywhere else in the plot file has alleged that Shah Muhammad Shahi was in league with the exmeptee or was a party to fraud committed by Mehmooda Begum or his claim of purchase of plot is doubtul. He purchased the plot from Mehmooda Begum although price in the registered deed was mentioned less than actual price but it was transferred in his name after filing of application set of transfer by the exemptee and he signed the endorsement contained in the form.

18. The Commission despite the alleged fraud/collusion, in view of sub section (4) of section 32 of the LOA (Amendments) Act, 2013 read with sub-section (5) of Section 32 of the Act (ibid) has to consider the present reference to resolve the dispute. The above mentioned provisions of the Act are reproduced below:-

"(4) The Authority or any officer so authorized by the Authority, on its own moti n or on the application of any person, _mayrefer any matter

t 1'~' 11 ~Dy-r7'CII- ")...-::,.,- o

------to the Commission for consideration, resolution and decision if a prima facie case is made out."

"(5) The Commission shall consider and make appropriate recommendations on matters pertaining to;

(a) bona fide purchase for value owing to irregular or fraudulent transaction in respect of property, the extent of legality or illegality of the transaction, apportionment of responsibility in irregular or fraudulent transaction and translation of this responsibility into monetary terms and recommendation of such conditions, fines, rate or fix price, retrieval of property and demolition as deemed appropriate according to the nature of each case."

19. Tahira Khatoon is not a purchaser hence not a Bonafide purchaser. However she is inheritor of the rights of exemption which were transferred to her by LOA vide letter No. JT-BWL-193-B/739 dated 24.01.2011 and can claim the exemption on the same terms and condition on which it was held by the original allottee. Relevant portion of the said letter is reproduced below:

"In compliance with the court order dated 21.12.2006 passed by Ch. Farrukh Hussain, Civil Judge Lahore in civil suit titled Tahira Khatoon vs. Public at large etc. plot No. 24 Block-E. MA Johar Town Scheme is hereby transferred in your name on the same terms and conditions as it was held by the original exemptee."

Since she accepted the terms and conditions of the exemption, she is now bound with the terms and conditions on which the plot was transferred to her father (Shah Muhammad Shahi) who also accepted the terms and conditions of the transfer. He himself signed the endorsement on the transfer application on page 0033 of plot file No. JT/BWLl193-B) which reads;

"I endorse the above application and if the property is transferred to me, I as successor in interest or (assignee) shall be subject to all the conditions and terms contained in the Agreement/Exemption letter between the transferor and the Lahore Department Authority."

Therefore, whatever rights have come to vest in the applicant, those did not constitute full and absolute title in the plot. The applicant is bound to fulfill the conditions laid down in the Exemption letter No. JT/BWLl193/B/810 dated 21.02.1989 issued to the original exemptee. The applicant, therefore, must have been aware of the fact that transfer of plot to her was subject to

12 ~DIl.2Plr the incident of those conditions which are contained in the exemption letter issued by the Authority. The LOA had a right to cancel the allocation/exemption of plot under clause 17 of the Exemption Letter No. No. JT/BWLl193/B/810 dated 21.02.1989 which reads;

"That if at any stage your title is proved to be defective, the exemption of the plot shall stand automatically withdrawn and LOA will be entitled to take over the land along with structure standing thereon without payment of any damages or compensation. (E & 0 are to be taken up at any stage.)"

20. Although the exemption was transferred by LOA i.e. the real owner of the plot, yet the fact remains that the transfer was made conditionally and the father of the applicant accepted those conditions without any objection. Every purchaser of exemption rights is supposed to have knowledge that the transaction of purchase is subject to those conditions which are contained in the agreement for exemption or in the exemption letter. At this stage the contention of the applicant that she was not aware of the terms and conditions cannot be accepted. This being so, the vendee despite being innocent buyer cannot raise the plea of protection on the principle of section 41 of the Transfer of Property Act, 1882 which relates to the transfer of property by an ostensible owner. In the present case it was a conditional sale and the applicant is bound to fulfill the conditions accepted by her when she accepted the transfer letter issued by LOA dated 04.04.1990 to her father and has relied upon her whole claim against this plot on the basis of that letter. The applicant's rights being vendee of exemption rights cannot exceed the rights vested in the vendor who was not full owner of the plot and did not had proprietary rights of the plot. Therefore, for acquiring proprietary rights the applicant is subject to the conditions of the sale as per terms and conditions of exemption.

21. Land for M.A. Johar Town Scheme was acquired on the basis of exemption which means that 30% of the land of owners was exempted from compulsory acquisition and they, on certain specific terms and conditions, were allocated developed plot equal to their right of exemption i.e. 30% of their total holding acquired/surrendered. Title of the exempted plot is, however, transferred on fulfillment of the terms and conditions of exemption. However the so called exemptee Mehmooda Begum was also adjusted though fraudulently in the MA Johar Town and plots were allocated to her in lieu of land claimed by her measuring 06K-OM-129sft in Mouza Mian Mir. Under condition 2 of the Allocation letter dated JT/BWL- 1993/8-137 dated 21.02.1989 she was bound to surrender all rights and interests in the balance 70% land of her claimed.. holding in Mouza Mian 13 Mir. Therefore, the exemptee was not a full owner of the plot and exemption letter did not constitute absolute title in the plot. The title of the plot remains vested in the LOA till exchange deed is executed. The applicant was transferred exemption rights subject to the terms and conditions contained in the exemption letter and was bound to transfer the land against which the exemption was granted, in favour of LOA by executing an exchange deed after completion of building. Clause 16 of the exemption letter No. JT/SWLl193/S/810 dated 21.02.1989 (page 000019- 21) which reads;

"That you shall be required to execute an Exchange Deed, after the completion of the building, in accordance with the sanctioned plan. All expenditures i.e. cost of stamps, Registration fee and other fees, taxes for the execution of this deed shall be borne by you."

22. The defect in the ownership of the original exemptee's land or plea of fraud or irregularities committed by the LOA or the Revenue Department functionaries does not absolve the applicant from abiding by the terms and conditions of the transfer of exemption accepted by her, even if the entire transaction and proceedings before transfer of exemption are proved to be fraudulent nor can she raise the plea of protection on the principle of section 41 of the Transfer of Property Act, 1882. In case she fulfills the terms and conditions accepted by her at the time of transfer of exemption, LOA shall be bound to transfer to her the proprietary rights, notwithstanding the fraud or collusion committed by the LOA officers/officials to which the applicant was not a party. The original exemptee paid the development charges only. The applicant paid transfer fee but the price of the plot was not paid by him or his predecessors to the LOA and instead the applicant took upon herself to transfer land to LOA by execution of an exchange deed. The vendor has not paid any price of the land of plot nor transferred land to the LOA, therefore, the price paid by the applicant to the vendor does not include the price of the land which was to be transferred to LOA in exchange of the subject plot. The applicant is liable either to transfer the above mentioned land to the LOA or alternatively in order to resolve the dispute, to pay the price of the land of the plot for transfer of title of the plot in her favour.

23. In view of the position, as has been noticed by the Commission from the Revenue record, the applicant cannot now get the above land transferred to the LOA, therefore, she has to acquire proprietary rights on payment of the price of the plot (minus development charges already paid by her). In case the plot had been in the name, of the original exemptee t 14 ~_,,'i<;. t..o l'T

~------. ------who got it allocated allegedly on the basis of fraud and collusion, the plot would have been certainly cancelled and she could have not any right for its regularization. But when the plot was transferred to Mr. Shah Muhammad Shahi he would have been entitled to retain the plot under these proceedings on establishing that he was a bona fide purchaser. Therefore, the same right can be claimed by the present applicant. The right of exemption i.e. to get the title of the plot by transferring ownership of above mentioned land, was conferred by the LOA when the LOA transferred exemption to the Mr. Shah Muhammad Shahi on receipt of transfer fee, therefore, price of the plot as on 04.04.1990 as per ~C's Valuation Table along with charges for delayed payment, should be charged from applicant in order to resolve the dispute as envisaged in sub section (4) of section 32 of the LOA (Amendments) Act, 2013 which reads:

"(4) The Authority or any officer so authorized by the Authority, on its own motion or on the application of any person, may refer any matter to the Commission for consideration, resolution and decision if a prima facie case is made out."

24. According to the ~C's valuation table notified on 29.09.1993 the price of land in Mouza Niaz Baig was Rs.30, 000/- up t010 Marias and Rs.25,000/- for every Marla exceeding 10 Marias. Since DC rate for the year 1990 are not available 1993 prices have been deflated for year 1990

using CPI to work out prices prevailing at the time of 1st transfer i.e. 04.04.1990. The deflated prices are Rs.24, 867/- for up t010 Marias and Rs.20,714/- for every Marla exceeding 10 Marias. Thus price of 420 sq.m. plot comes to Rs.4,55,810/- The applicant's predecessor paid to the LOA Rs.50,400/- on 19-02-1989 as development charges. Sui gas charges paid are not the part of the price of the plot and similarly the amount paid subsequently for building period extensions or any additional amount recovered on account delayed payments cannot be considered part of the cost of the plot. However, the amount of Rs.50, 400/- paid as development charges can only be considered a part of the price of the plot. It was the responsibility of the applicant as successor in interest of transferee Shah Muhammad Shahi as discussed above, to get transferred the land to be surrendered to the LOA and it is the applicant who failed to abide by the terms and conditions of the exemption, therefore, she is liable to pay mark up at the rate of 17.50/0per annum for delayed payment as specified in clause 2 of the allocation letter dated 05-01-1989 and clause 3 of the exemption letter dated 21-02-1989 On account of her failure to fulfill the terms and conditions of exemption, she will have to pay to the LOA an amount of Rs. 21,28,044/- worked out below:- , t~ 15 - Sr. No. Statement Rupees

1) Price of the 420 sq.m. plot as calculated 4,55,810/- above

2) Dev. Charges paid on 19-02-1989 50,400/-

3) Mark up On Development Charges from 9883/- 19.02.1989 to 04.04.1990

4) Total Development charges with markup 60,283/-

5) Cost of plot land (Total plot value - Dev. Rs.3,95,527/- Charges paid)

6) Add mark up for the period from the 17,32,517/- date of 1st. transfer of exemption to the date of filing of application (20-04-2015)

7) Total cost of plot to be paid by the 21,28,044/- applicant to resolve the dispute

-

In case of any patent error or omission apparent from the face of the record, is subsequently discovered in the above computation, the Commission may rectify the same on an application by either party.

25. From the record and the evidence produced by the applicant it appears that:

I. The applicant is not a bonafide purchaser as she is not a purchaser of the plot. However her father Shah Muhammad Shahi was a bonafide purchaser as per record. II. There is no evidence on the record that could establish that Mr. Shah Muhammad Shahi was involved in the fraud committed by Mehmooda Begum. Although he concealed the actual price of the plot and showed as Rs. 1,85,000 in the registered sale deed but the statement of witness to sale Malik Muhammad Latif and other documents of agreement to sell the price was aro Rs. 8,50,000/-.

16 III. There is ample evidence that Mr Shah Muhammad Shahi paid the full price of the plot to the vendor for transfer of exemption rights and possession of the plot. The vendor Mehmooda Begum herself filed the application for transfer to the LOA and had not claimed that any outstanding amount was due. IV. LOA has already transferred the plot in the name of the applicant as a giftee despite the fact that it was already cancelled and all the relevant documents regarding cancellation were available on file. Now on the basis of this transfer letter the applicant has genuine claim of bonafide purchaser.

26. In view of the above discussed facts, the record perused and the evidence examined, recommendations of the Commission are as under:-

i. Notwithstanding the fact that under clause 17 ibid, the LOA is authorized to cancel exemption of plot No.24, Block E, M.A. Johar Town, Lahore, it is recommended to resolve the dispute, that on payment to the LOA by the applicant an amount of Rs. 21,28, 044 as worked out above as price of the land of the plot, in lieu of the land to be surrendered, the applicant will be allowed to retain the plot and proprietary right of the plot will be transferred in favour of the applicant.

II. In case no appeal is filed by the applicant or by the LOA against this order, the LOA shall issue, within 30 days after the expiry of the time prescribed for the appeal or from the date of the application made by the applicant, whichever is earlier, one or two Challans at the option of the applicant for the payment of the above amount in lump sum or in two quarterly installments.

iii. Subsequent to the payment of the above determined amount by the applicant or after final orders of the court of competent jurisdiction, the title of the applicant or her successor in interest at no stage, shall be called in question by the LOA and the cases for sanction of the building plan, commercialization, issuance of NOC, further transfer etc. in respect of the above plot shall be processed by the LOA as per relevant rules/policy in vogue.

iv. In case the applicant fails to pay the above amount within six months from the date of the issuance of the Challan(s), the LOA may, retrieve the plot but not without compensation as envisaged in the clause 17 of the Exemption Letter read with 17 the transfer. On retrieval of the plot LDA will refund the development charges received with markup @ 17.5% from the date of the payment of development charges to the LDA up to the date of the LDA's cheque for the refund amount payable to the applicant. The amount so calculated shall be refunded within one month of the retrieval of the plot.

v. If the applicant has raised construction on the plot after approval of the building plan, she will be entitled, in case of retrieval of plot by LDA, to receive compensation for the construction or any other development made by her as determined by the Chief Engineer, UD Wing, LDA. However, no compensation for the structure will be payable in case the building plan was not approved by the competent authority.

vi. Director General may hold an enquiry to determine that why the said order of Tribunal passed in 1979 was not communicated to Directorate of Land Development which allowed exemption in 1989. If it was communicated to DLD then the responsibility shall be fixed upon officers and staff who allowed exemption. The findings of such an enquiry will help to improve the coordination among Directorates of LDA so that Directorates and different r nches do not work in isolation.

'v")~O ~ - j"O I" t• (Muhammad Yousaf)

Member, LDAC Chairman, LDAC Announced

25.08.2017

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