BEFORE THE BONAFIDE COMMISSION LOA, LAHORE
REFERENCE NO. 158/2018
Muhammad Iftikhar Slo Fateh Din RIo House No. 11, Shahbaz Block, Mustafa Town, Lahore
Applicant
VS.
1. Lahore Development Authority through Director General, 467/0-11,Main Boulevard, M.A. Johar Town, Lahore.
2. Director, Land Development-II, 467/0-11, Main Boulevard, M.A. Johar Town, Lahore. Respondents
Regarding Plot No. 16 Shahbaz Block Mustafa Town. Lahore (File No. MST-739)
CHAIRMAN The scrutiny committee in its meeting held on 13.10.2018 considered the
request of applicant Mr. Muhammad Iftikhar S/o Fateh Din for deciding the issue of
bonafide purchaser/transfer of plot No. 16 Shahbaz Block, Mustafa Town Scheme,
Lahore.
2. The brief facts of the case as narrated in this reference are that one Mst.
Shaista Aslam W/o Muhammad Aslam claimed ownership of land measuring OK-18M-
OSqftcomprising Khasra No. 5144 (old), 7029 (new) Mouza Niaz Baig, Lahore for which her entitlement was worked out to be OK-05M-90Sqft, she requested for the grant of exemption in shape of developed plots in lieu of her land acquired by Lahore Development
Authority in Scheme Mustafa Town. She was granted exemption in shape of plot No.16,
Shahbaz, measuring 05M-23Sqft. Allocation letter for plot No. 16 Shahbaz was issued in favour of Mst. Shaista Aslam W/o Muhammad Aslam vide letter No. MST-739/613 dated
24.07.1995. Exemption letter for plot No. 16 was issued in favour of 739/613 dated
24.07.1995 vide letter No. MST-739/5230 dated 23.06.2001. Possession order for plot
No. 16 was issued in favour of Shaista Aslam W/o Muhammad Aslam through GPA -Muhammad Saleem Slo Hayyat Muhammad vide letter No. DLD/LDAIMST-739-6349
dated 13.08.2001. Physical Possession was handed over to exemptee through GPA
Muhammad Saleem Sio Hayat Muhammad vide EO No. 221 dated 01.09.2001. The said
plot was lastly transferred to Mr. Muhammad Iftikhar Sio Fateh Din vide transfer letter No.
1553157 dated 16.01.2012.
3. The applicant in the light of above circumstances prayed that the applicant
be declared as Bonafide Purchaser and his plot be regularized.
4. Conversely, the representative on behalf of LDA resisted the contents of the application and the arguments of applicant and contended that the sifting team after due
scrutiny found that the file plot is bogus and fabricated. The exemptee's ownership is also
not verified by the Revenue Department. He further added that Khasra number 7029 is
encroached at site by the Education Town whereupon a number of houses have already
constructed.
5. Learned Law officer also referred to para 17 of the exemption letter and
contended that the defect in the ownership of the original Exemptee's land or plea of fraud or irregularities committed by the LDA or the Revenue Department functionaries
does not absolve the Applicant from abiding by the terms and conditions of the transfer
of exemption accepted by him, even if the entire transaction of proceedings before
transfer of exemption are proved to be fraudulent he cannot raise the plea of protection
on the principle of section 41 of the Transfer of Property Act, 1882. In case he fulfills the
terms and conditions accepted by him at the time of transfer of exemption, LDA shall be
bound to transfer to him the proprietary rights, notwithstanding the fraud or collusion
committed by the LDA officerslofficials to which the applicant was not a party. The
Applicant did not pay the price of the plot. The vendor has not paid any price of the land
of plot nor transferred land to the LDA, therefore, the price paid by the Applicant to the
vendor does not include the price of the land which was to be transferred to LDA. The
Applicant is liable to transfer the above mentioned land to the LDA. Further prayed that
the reference be dismissed.
6. Arguments heard record perused. 7. In corroboration of contents of application, Muhammad Iftikhar applicant
contended that in 2012 the applicant purchased the suit plot bearing No. 16, Shahbaz
Block, Mustafa Town, Lahore for a total consideration price of Rs. 45,50,0001-. He further contended that the applicant paid Rs. 5 lacs on account of earnest money through cross cheque drawn on Habib Bank Limited, Ichhra Branch, Lahore. An agreement to sell was also reduced in writing which bear the signatures of applicant, the transferor and the witnesses. Thereafter, the applicant paid the remaining amount of Rs. 35,50,0001- through pay order number 5862893 issued by Habib Bank Limited Ichhra Branch, Lahore and an acknowledgment deed was executed. The applicant further contended that on
23.12.2011, he paid the last installment of Rs. 5 lacs to the transferor through a pay order.
8. The applicant contended that after fulfilment of all procedural and codal formalities, he constructed a double storey building but the applicant was surprised when he received an office order of cancellation of above said plot dated 30.01.2018.
9. This Commission has minutely scanned the record of the file and observed that the applicant entered into an agreement to sell in 2011. Thereafter, taking over possession of the plot, the applicant applied for the approval of building plan. The Town
Planning Directorate of LDA after due satisfaction sanctioned the building plan of applicant on 09.10.2001. The applicant constructed a double storey house in line with the approved building plan, installed electricity, gas connections etc. As per record on
23.06.2001, Mst. Shaista Aslam Wlo MuhammadAslam acquired the exemption land and till 30.01.2018 when the cancellation letter was issued no one from LDA interfered in the possession of allottee and the applicant completed construction of house.
10. In support of his contention, the applicant produced Muhammad Sajid Iqbal
S/o Muhammad Iqbal, Muhammad Shahzad Iqbal S/o Muhammad Iqbal as his witnesses.
They are the sons of original transferor who died and the civil court declared Muhammad
Sajid Iqbal and Muhammad Shahzad Iqbal, the legal heirs of deceased Muhammad Iqbal.
Both the sons of transferor fully supported the statement of the applicant. To further
strengthen his case, the applicant also annexed copies of cross cheque, pay orders and
the agreement to sell executed between the transferor and the transferee. 11. Evidence produced by the applicant remained unrebutted because it was not challenged from the respondent site. Relied on law, laid down by the Supreme Court of Pakistan, in case Sikandar Hayat and another Vs Sughran Bibi and six others reported as:
2020 SCMR 214
Which is reproduced as under:
"Cross-examination-Presumption-Material portion of a
statement of a witness, if not cross-examined, it was
presumed that the other party had accepted such part/portion
of statement."
12. This Commission minutely scanned the file of the reference and arguments of both side at length and observed the following material facts necessary for the disposal of this reference:-
i. The respondents allocated plot No. 16 Shahbaz Mustafa Town Scheme,
Lahore measuring 5-Marla 90Sqft on 26.07.1995.
ii. Exemption letter for plot No. 16, Shahbaz Block, Mustfa Town, Lahore
favour of Mst. Shaista S/o, Wlo Muhammad Aslam was issued on
23.06.2001.
iii. Order of possession was issued on 13.08.2001.
iv. Physical Possession was handed over on 31.08.2001.
v. Building Plan submitted by the exemptee was approved on 09.10.2001.
vi. At the site, at present, the owner has constructed a double storey building.
vii. Completion letter so far not issued.
viii. Since the date of exemption till 24.07.1995, when the suit plot was
cancelled, none of the respondents, ever pointed out any illegality in the file,
nor interfered in the possession of any of the occupant. 7-1
ix. The applicant is 2nd transferee of the plot.
x. In case of each transfer, the respondents allowed the transfer of plot after
due scrutiny of record. The transfer of plot was completed in presence of
officials of LOA, who not only signed the transfer letter but also appeared in
the photograph alongwith vendor and the transferee.
xi. That the original exemptee and subsequent transferee received the price of
plot who have till today not questioned about the alleged accusation.
xii. The payment of price of plot to the transferor is establish without any
shadow of doubt.
13. The statement of applicant in this reference remained unrebutted. The LOA authorities did not produce convincing evidence to rebut the applicant's contention.
14. All these facts establish the applicant as bonafide purchaser for consideration and without notice.
15. Section 41 of transfer of Property Act Protects the right of a bonafide purchaser.The language of section 41 transfer of property Act 1882 has been reproduced as under:-
"Where with the consent express or implied, of the persons interested in
immovable property, a person is the ostensible owner of such property and
transfers the same for consideration, the transfer shall not be voidable on
the ground that the transferor was not authorized to make it:
Provided that the transferee, after taking reasonable care to ascertain that
the transferor had power to make the transfer, has acted in good faith.
16. In the instant case, the applicant examined all the documents mentioned here in above and thereafter made the payment of plot and received possession of the plot and built a house.
17. In view of the above circumstances, this commission unanimously hold that under the Doctrine of Locus-Poenitentiae, a legal right of ownership of plot No. 16
Shahbaz Block, Mustafa Town, has accrued in favour of the applicant, which shall be l l
protected under section 41 of the transfer of property Act 1882. Relied on law laid down
by the Honourable Supreme Court of Pakistan in case,
"Government of Punjab Vs Muhammad Imran and others"
reported as 2019 SCMR 643
and 2015 CLC 577
18. Notice of cancellation of plot on such belated stage is also hit by the
principle of estoppel and waiver:
a) That notice of cancellation of 16, Shahbaz Block, Mustafa Town
Lahore is a nullity in the eye of law based on ulterior motive
ineffective on the right of applicant.
b) The applicant is a bonafide purchaser for consideration and without
notice.
RECOMMENDATIONS OF COMMISSION
i) The applicant is a lawful owner of Plot No. 16, Shahbaz Block,
Mustafa Town and the respondents are permanently restrained from
interfering in his lawful possession.
ii) This Commission also observed that the LOA was not only deprived
of land but also suffered financial loss. The plot was transferred to
the applicant by LOA on the same terms and conditions on which it
was held by the original exemptee including cancellation of plot. In
order to resolve the dispute and avoid cancellation of plot, the
applicant shall pay to LOA the price of plot. Therefore, to compensate
LOA, the applicant is directed to deposit price of land to the LOA,
according to Deputy Commissioner Lahore valuation table for the
year 2012 alongwith simple interest for delayed payment @ 17.5%
per annum w.e.f. 16.01.2012, the date of transfer of the plot within a
period of six months from the date of announcement of order (challan
shall be prepared and delivered to the applicant within a month). In ,,
case of none compliance, on the expiry of six months the plot No. 16
Shahbaz Block, Mustafa Town, Lahore shall stand cancelled and the
super structure raised on the suit plot shall be demolished by the
LOA on the expense of applicant.
iii) The LOA shall reconstruct the file of plot with the assistance of
applicant, LAC office and Revenue department.
iv) The Director General, Lahore Development Authority is advised to
initiate criminal proceedings against all the LOA official/employees
and the revenue staff involved in the fraud of this case after due
inquiry.
19. In the above terms, this reference is disposed of.
V.,..D ...,....q ... ~~~~~ Sohail Shahzad Jus ice Ch. Muhammad Tariq Member, LOA Commission Former Judge Lahore High Court Lahore. Chairman, LOA Commission Lahore. ~ 7 .a 'f .)..oLb
DATED: 07-09-2020
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