Chaudhary Khurshid Ahmad slo Chaudhary Ghulam Ahmad House No. 563-F, Block-F, Muhammad Ali Johar Town, Lahore. Vs.

Transcription

1 BEFORE LAHORE DEVELOPMENT AUTHORITY COMMISSION, Reference No. 19/2016 PRESENT: LAHORE Mr. Najam Saeed, Chairman. Mr. Javaid Akhtar, Member. Chaudhary Khurshid Ahmad slo Chaudhary Ghulam Ahmad House No. 563-F, Block-F, Muhammad Ali Johar Town, Lahore. 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. Order Chaudhary Khurshid Ahmad slo Chaudhary Ghulam Ahmad submitted an application at One Window on vide receipt No for filing of 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 Rule 7 of the Lahore Development Authority Commission Rules, 2014, referred the case to the Commission which was received on It was entered in the Institution Register at Serial No.19 of Notices were issued to the applicant and the Revenue Officer, Mouza Niaz Baig for production of Revenue record related to the land owned by Mst Ramzan Bibi, the original exemptee. Statement of the applicant was recorded on oath and the documents produced by the applicant were examined and photo copies thereof were placed on the reference file. File No. JT.NB-1/147-A in respect of plot No. 563, Block-F, Muhammad Ali Johar Town Scheme, attached with the reference by the Land Directorate-I (hereinafter referred to as plot file) was examined and the relevant record of Land Acquisition Collector, LOA was summoned and consulted. The Commission itself visited the Patwar Khana of Mauza Niaz Baig and collected the copies of the relevant record available there. Notices were issued to District Coordination Officer Lahore for production of the record which was not available in Patwar Kana. But record was not produced. Therefore, the Commission finalized the recommendations on the basis of the record made available during the proc---~i

2 , recommendations on the basis of the record made available during the proceedings. 2. According to the LOA reference, one Mst. Ramzan Bibi dlo Jan Muhammad claimed ownership of land measuring 03-Kanal and 02-Marla falling in Khasra No of Mouza Niaz Baig, Lahore and requested for grant of exemption in the shape of developed plots in lieu of her land acquired by the Lahore Development Authority for its scheme namely M.A. Johar Town. She was granted exemption of plots No. 597, Block-G/1 (measuring 250 SaM) and 563-F, block-f (measuring 160 SaM) in M.A. Johar Town, Lahore against her claimed ownership, by the then Director Land Development on (para 23/N of the Plot file). Allocation letter of plot No. 563-F, Block-F (measuring 160 SaM) was issued in favour of Mst. Ramzan Bibi dlo Jan Muhammad vide letter No. JTNB-147-Al834 dated (page 03/C of plot file). Exemption letter was issued vide No. JTNB-147-Al2471 dated (Page 17/C of plot file). Possession order of the said plot was issued vide letter No. JTNB-147- Al2632 dated in favour of Mst. Ramzan Bibi through Mian Muhammad Waheed, holder of General Power of Attorney. The said plot was transferred by Mst. Ramzan Bibi through GPA Mian Muhammad Waheed in favour of Mst. Raheela Anjum wlo Shamshad Hussain vide sale deed registered by Sub-Registrar (Sadar), Lahore as document No. 8092, Book No. 01, Volume No dated The above said transfer was notified vide transfer letter No. JT/NB-1/147-Al3404 dated (Page 69/C of the plot file). Plot was further alienated in favour of Mr. Ch. Khurshid Ahmad Slo Ghulam Ahmad vide letter No. JTNB-147-Al1045 dated (Page 99/C of plot file). The plot was transferred on the same terms & conditions on which it was held by the original exemptee. Later on, the plots No. 597, Block-G/1 and plot No. 563-F, Block-F were cancelled vide cancellation letter No. JT/NB-1/147-Al6115 dated (Page121/C of the plot) due to the reason that the award of exemptee Mst. Ramzan Bibi had been cancelled in the light of the orders of the Commissioner Lahore Division, Lahore dated The reference further stated that in the light of reports obtained from different quarters, following are the facts regarding the instant case: 1) The award of exemptee Mst. Ramzan Bibi d/o Jan Muhammad stood cancelled and amended in favour of Muhammad Ali slo Ghulam Muhammad in light of orders of Executive District Officer (Revenue), Lahore dated (The order dated was made by the Commissioner Lahore Division, Lahore). It is pertinent to mention here that Mr. Muhammad Ali slo Ghulam Muhammad has also obtained exemption against said land in file No. JTNB-1/ ~~ ~\ \~~ {6

3 2) Verification of dues was sought from Directorate of Revenue which is available at para //N. As per report, all dues including first & final demand notices for development charges and first and second transfer fee have been verified. 3) The status of plots No. 563-F, Block-F in possession register and at site was sought from Directorate of Estate Management-I, LOA. The Estate Branch has reported at para /N that possession of plot No.563-F, Block-F was handed over to exemptee Mst. Ramzan Bibi through GPA Mian Muhammad Waheed and a double storey building is constructed at site. Later on, the entry in possession register stood cancelled in light of cancellation order ) Report of Town Planning Wing is available at para 137/N which shows that building plan was sanctioned vide No. BA. 105/JT/95/1279 dated in the name of Ch. Khurshid Ahmad (2nd Transferee), which was later on cancelled in light of cancellation order Completion certificate was not issued regarding said plot. 5) The scrutiny list was consulted and the instant file is not included in those files which are under scrutiny. 6) Instant file is not included in the list of missing files which was published in ) It is pertinent to mention here that a legal case title "Khurshid Ahmad VIs LOA etc" is pending in civil court regarding the subject plot." 4. Perusal of the record revealed that Mst. Ramzan Bibi was owner of land in Mouza Niaz Baig in Khatooni No. 690 (new No. 1139) comprising Khasra number measuring 07K-07M and in Khatooni No (new No 2789) measuring 26K-14M comprising Khasra numbers 2751 (03K13M), 1529 (03K-01M), (01K-09M), (01K-19M), (05K-17M) and (10K-15M). She sold vide sale deed No. 873 dated her total land in Khatooni No. 690 comprising Khasra No measuring 07K-07M and 264/400 share measuring 13K-04M from Khatooni No out of Khasra No , 13259, and to Muhammad Sarwar slo Abdul Ghafoor. Muhammad Ali slo Ghulam Muhammad filed a pre-emption suit against sale of land to Muhammad Sarwar, which was decided in his favour by the court of Ch. Muhammad Hussain and the land was mutated in his favour vide Mutation No dated She was left with only 06K-16M land in the above mentioned four Khasra numbers, but she sold 10 Kanal land out of these Khasra numbers to Mst. Bilqees Barkat wdlo Barkat Ali on No sale deed or mutation in favour of Mst. Bilqees Bibi could be traced out. But subsequently this land was also transferred to Muhammad Ali slo Ghulam Muhammad vide mutation No Thus prima faci Mst. Ramzan Bibi

4 had sold her entire ownership in these four Khasra numbers. As per available Revenue record she was left with no ownership in Khasra No in respect of which she claimed exemption and got allocated plots No. 597,Block-G/1 (measuring 250 SQM) and 563-F, Block-F (measuring 160 SQM) in M.A. Johar Town. 5. But there is another aspect of the case that Mr. Muhammad Sarwar and Mst. Silqees Barkat did not get the sale in their favour implemented in the Revenue Record and no mutation was sanctioned till In the Register Haqdaran Zameen , the entire land is recorded in the name of Mst. Ramzan Bibi in Khewats No.1139/690 and 2789/2013. Mutation No was sanctioned on whereby land sold vide sale deed dated was transferred from Mst. Ramzan Bibi to Muhammad Sarwar slo Abdul Ghafoor. Subsequently the land was returned to Muhammad Ali through a pre-emption decree vide Mutation No dated Then in pursuance of a pre-emption decree of the court of Rao Fahim Hashim Khan ADC (G) dated , the land sold by Mst. Ramzan Bibi to Mst. Bilqees Sarkat was also transferred in favour of Muhammad Ali directly from Ramzan Bibi. But no record regarding sale to Mst. Bilqees Barkat could be found except that it is mentioned in the order of the Commissioner Lahore Division dated But instead of 10 Kanals only 06K-16M land i.e. 136/400 share in Khasra Nos , and was transferred vide mutation No dated Thus no land in these Khasra numbers was left with Mst. Ramzan Bibi. Amazingly Mst. Ramzan Bibi even after 1976 continued selling land out of the above mentioned four Khasra numbers. She also sold vide mutation No , 42/400 share out of the above Khasra numbers but the mutation was sanctioned for 01K-13M only in Khasra No in favour of MIs Deep Well Corporation. However, the above mentioned 42/400 share was allotted to Mst. Naseem Irshad in consolidation. Subsequently, she was given 01K-13M in Khasra No vide Executive District Officer (Revenue), Lahore order dated The present applicant challenged the said order which was reviewed by the Executive District Officer (Revenue), Lahore order dated But this order has not been implemented in the Revenue record. In view of the above either both the transactions made in 1976 are bogus or the sale made thereafter, are fraudulent being over and above the land actually owned by her. 6. As mentioned above allocation letter of plot No. 563-F, Block-F (measuring 160 SQM) was issued in favour of Mst. Ramzan Bibi 0/0 Jan Muhammad vide letter No. JTNB-147-A/834 dated (page 03/C). Exemption letter was issued vide letter No. JTNB-147-A/2471 dated

5 (Page 17/C). Possession order of the said plot was issued in favour of Mst. Ramzan Bibi through GPA Mian Muhammad Waheed vide letter No. JTNB-147-A12632 dated Thus the entire process was completed within three months. Just after taking over possession, the plot was transferred by Mst. Ramzan Bibi through GPA Mian Muhammad Waheed in favour of Mst. Raheela Anjum w/o Shamshad Hussain vide sale deed registered by Sub-Registrar (Sadar), Lahore vide document No. 8092, book No. 01, volume No dated The above said transfer was notified vide transfer letter No. JT/NB-1/147-A13404dated (Page 69/C of the plot file). Simultaneously, plot No. 597, Block-G/1plot was also transferred to Mst. Raheela Anjum. This fact does create a strong presumption that Mst. Ramzan Bibi and her Attorney Mr. Muhammad Waheed had full knowledge of the fact that they had got the exemption fraudulently and therefore, disposed of the plots immediately. Prima facie it was a collusive transfer. 7. Upshot of the above discussion is that Mst. Ramzan Bibi got the exemption of plot No. 563, Block-F, Muhammad Ali Johar Town Scheme without any entitlement as she was not owner in Khasra No against which she got exemption. Prima facie she or her Attorney or both of them committed fraud and are liable to criminal action unless it is proved that fraud was committed by Mr. Muhammad Sarwar, Mst. Bilqis Bibi and Mr. Muhammad Ali who did not come up with his claim against he said land till exemption had already been granted to the other vendees of Mst. Ramzan Bibi. The Commission cannot amend or review the Revenue record or the decisions made by the Revenue Officers. Presently genuinely or fraudulently all the above mentioned Khasra numbers owned by Mst. Ramzan Bibi stand mutated in favour of Mr. Muhammad Ali and no ownership stands in the name of Mst. Ramzan Bibi in the Revenue record. Certainly there is some land mafia behind this case, which maneuvered to get exemption of 50K-19M as is indicated in Paras No of noting part of the plot file No. JT/NB-1/480,against the total acquired area of 27K- 07M out or Khatooni NO.690 and Khatooni No A detailed inquiry is required to be made by the LOA to find out the facts and fix responsibility. 8. However, despite the fraud/collusion, the Commission 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 motion or on the application of any erson, may refer ~~.(7~J) ~ 5 "-.J~ os: 2.0 u:

6 any matter 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." 9. Ch. Khurshid Ahmad, the applicant contended that he purchased plot from Mst. Raheela Anjum wlo Shamshad Hussain for a consideration of Rs.3,10, He produced agreement to sell with the vendor in support of his claim. He contended that he paid Rs.75, as advance and the balance amount was paid at the time of transfer of the plot to Mst. Raheela Anjum in the presence of her husband and the LOA staff. He claimed that he satisfied himself about the ownership of Mst. Raheela Anjum and produced sale deed executed by the original exemptee Mst. Ramzan Bibi dlo Jan Muhammad through her Attorney Muhammad Waheed in favour of Mst. Raheela Anjum. According to him he got the building plan approved from LOA in 1995 and completed its construction. He stated that present whereabouts of Mst. Raheela Anjum are not known to him. 10. Although LOA in view of the above discussed facts has rightly cancelled plot No. 563, Block-F, M. A. Johar Town Scheme, yet it has not challenged the transfer proceedings of the exemption of the plot in favour of the present applicant. The exemption of the plot was transferred to the applicant by LOA itself but on the same terms and conditions on which it was held by the original allottee. The allocation and exemption letter were issued under certain terms and conditions. Clause 07 of allocation letter No. JTNB-147-A/834 dated (page 03/C of the plot file) and clause 17 of exemption letter No. JTNB-147-A/2471 dated (Page 17/C of the plot file) are reproduced below: "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.

7 ,., <, 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 be 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)." The above terms and conditions were accepted by the present applicant as is evident from the transfer application dated (page No of plot file No. JT/NB-1/147-A) which contains the following endorsement duly verified by the applicant; "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 had come to vest in the applicant, those did not constitute full and absolute title in the plot. In the present case it is undisputed that the title in the plot vested in LOA. The exemptee was not full owner and exemption letter does not constitute absolute title of the plot. The applicant was bound to fulfill the conditions laid down in the exemption letter No. JTNB-147-A12471 dated read with the transfer letter No. JTNB-147-A11045 dated (Page 99/C of the plot file). The applicant, therefore, was well aware of the fact that his purchase was subject to the incident of those conditions which are contained in the above mentioned allocation/exemption letters and which have been accepted by him. According to the terms and conditions of exemption, the LOA had a right to cancel the allocation/exemption of plot under clause 17 of the Exemption Letter reproduced herein before. 11. 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 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 he 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 him at the time of transfer of exemption favour. Moreover, " 7 ~,o~.2.>1k

8 ,, (, 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 have 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. The applicant claimed that he has purchased the plot on payment of its price to the applicant and as such he is not liable to pay any further amount to the LOA. This plea is not plausible as the applicant accepted the terms and conditions of transfer of exemption in his favour and he was supposed to pay to the vendor the price keeping in view the terms and conditions of exemption/transfer. 12. 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. The LOA has not transferred proprietary rights of the plot even to the original exemptee nor can the subsequent purchaser of exemption claim proprietary rights just because the transfer has been made by the LOA. At the best he is purchaser of the conditional rights which despite the fraud can be protected. Title of the exempted plot, even after transfer of exemption, remains vested in the LOA till fulfillment of the terms and conditions of exemption. The defect in the ownership of the original exemptee's land or plea of fraud or irregularities committed by the LOA or by the Revenue Department functionaries does not absolve the applicant from abiding by the terms and conditions of the transfer of exemption accepted by him. Unless the terms and conditions accepted by him at the time of transfer of exemption are fulfilled, the LOA would not be bound to transfer title of the plot to him. 13. The original exemptee paid development charges only and in lieu of the price of land of the plot, she was supposed to valid title of 01Kanal-06 Marla land for its transfer to LOA. The present applicant also did not pay the price of the land of the plot to the LOA. Now neither the original exemptee not the present applicant is in a position to transfer 01Kanal-06-Marla land to the LOA. At this stage the applicant cannot deny the right of the LOA to cancel the plot in terms of clause 17 of the Exemption Letter reproduced above as the title of the land acquired has been proved to be defective, But at the same time the applicant is a bonafide purchaser of exemption rights which were transferred to him by the LOA. Therefore, in order to resolve the dispute, the applicant should pay for transfer of title of the plot in his favour, in lieu of the 01Kana-06 Marla land against which the exemption was gran n amount work d

9 , ', out on the basis of a uniform formula devised and applied by the Commission in all other similar case. 14. The plot has been cancelled in terms of clause 17 of the exemption letter and LOA could have sold it at its present market price in the open auction. But considering that the applicant was not involved in the fraud committed by his predecessor in interest and he has purchased exemption rights in good faith, it will be appropriate if the benefit of the difference of the present market price and the price as per DC's valuation table is given to him. In order to restore the exemption of the plot and resolve the dispute, the Commission considers that the applicant should pay to the LOA, in lieu of the 01Kana-06 Marla land against which the exemption was granted, an amount worked out on the basis of two DC's valuation tables; the valuation table in vogue when the exemption was transferred to the applicant as calculated upto the date of application and the valuation table applicable on the date of filing present application. The applicant will be required, by allowing him further benefit being a bona fide purchaser of the exemption rights, to pay the amount whichever is lower of the two amounts so calculated. The first transfer in this case is prima facie a collusive transfer as pointed out above and as such it cannot be taken into consideration. 15. According to the DC's valuation table notified on which was applicable on the date of transfer of exemption by the LOA i.e , the price per Marla in M.A. Johar Town, is Rs.25,0001- Thus price of 160 sq.m. plot comes to Rs. 1,90,476/-. The applicant's predecessor paid to the LOA Rs. RS.7670on and Rs on as development charges which only can be considered a part of the price of the plot. Sui gas charges paid are not the part of the price of the plot and similarly the amounts 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. The first amount which is the aggregate of the price based on the basis DC's valuation table mentioned above and mark up at the rate of 17.5% per annum upto the date of application, as it was provided in clause 3 of the exemption letter for delayed payments, on account of the applicant's failure to fulfill the terms and conditions of exemption, is worked out as under: Price of the plot as per District Collector's Valuation in Rs.1,90,476 vogue on the date of transfer of exemption i.e Dev. Charges paid on Rs. 7,670

10 , ' Mark 17.5% for the period to Rs. 6, Dev. Charges paid on Rs. 8,668 Mark 17.5% for the period to Rs. 7, Total amount of development charges + mark 17.5% Cost of plot land (Total value - Dev. Charges paid) Add mark up at the same rate for the period from the date of transfer of exemption to the date of application Total amount Rs. 30,673 Rs.1,59,803 Rs.5,67,431 Rs.7,27, The value of the plot worked out at rate of the DC's Valuation Table relevant on the date of the present reference application i.e. Rs. 3,30,000 per Marla, comes to Rs. 25,14,285. By subtracting estimated development charges of Rs. 4,04,800, the amount is reduced to Rs.21,09,485. (Development charges have been determined at the same ratio of the price of the plots and development charges as on of the then value of the plot). Although the development charges paid against the plot constitute only 16.1% of the price of the plot as per DC's valuation table in vogue on , when the exemption transferred by LOA to the applicant and the price of land was 83.9% of the total value of the plot, yet it would be fair if the applicant's liability is restricted to 50% of the price of the plot as per DC valuation table in vogue on the date of his filing of reference application i.e. Rs.10,54,742. According to the formula devised by the Commission, the lower of the above worked out two amounts is to paid. 17. As the amount worked out in para 15 is lower than the amount worked out in para 16, the applicant will be required to pay Rs. 7,27,234 for resolving the dispute and restoration of the cancelled plot. In case 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 after affording the other party an opportunity of being heard. 18. 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 has cancelled exemption of plot No.563, Block, M.A. Johar Town, ~ 10 '3, los-: 26ft.

11 I r 1, Lahore, it is recommended to resolve the dispute that on payment to the LOA by the applicant an amount of Rs. 7,27,234, as worked out above as price of the land of the plot, in lieu of the above discussed 01 Kanal 06 Marla land, the plot should be restored in favour of the applicant and proprietary rights of the plot will also be transferred in favour of the applicant. II. However, if at any stage it is proved that the above discussed sale deeds in favour of Mst. Bilqees Barkat and Mr. Muhammad Sarwar were not genuine and exemption granted to the Mst. Ramzan Bibi was valid, then the amount paid by the present applicant will be refunded to him even if the plot had been transferred by him. iii. In case no appeal is filed by the applicant or by the LOA against this order, the LOA shall issue to the applicant four Challans for the payment of the above amount in four equal quarterly installments. iv. Subsequent to the payment of the above determined amount by the applicant, the title of the applicant or his 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. v. In case the applicant fails to pay the above amount within one year from the date of the issuance of the Challans, the LOA may, take over possession of the cancelled plot but not without compensation as envisaged in the clause 17 of the Exemption Letter read with the transfer letter. On retrieval of the plot LOA will refund the development charges received with 17.5% from the date of the payment of development charges to the LOA up to the date of the LOA'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. vi. If the applicant has raised construction on the plot after approval of the building plan, he will be entitled, in case of retrieval of plot by LOA, to receive compensation for the construction or any other development made by him as determined by the Chief Engineer, UO Wi OA. However, no

12 'J, c. f' compensation for the structure will be payable in case the building plan was not approved by the comqetentauthority. Announced (Javaid a Member, LDAC 12