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Civil Petition for Special Leave to Appeal No. 1457 of 1980, heard on 9th February, 1981.
(On petition against the judgment of the Lahore High Court dated 12th November, 1980 in Civil Revision No. 1440 of 1979).
-----S. 40--Removal/demolition of building-Notice,-Retrospectivity of statute-Punjab Act XXX of 1975 having come into being in 1975 and S. 40 of Act, like rest of Act, being prospective, notice under S. 40, held, would be relatable only if construction made after Act came into force.
---- O. XXXIX, rr. 1 & 2 and Lahore Development Authority Act (XXX of 1975), S. 40-Removal/demolition of building-Injunction, tem. porary-Petitioner having constructed disputed building long before coming into force of Lahore Development Authority Act, .1975 and Authority as such having no power to issue notice for removal of build ing, irreparable, damage, held, likely to be suffered by petitioner if shops in question demolished during pendency of suit filed by petitioner in such regard-Balance of convenience also, held further, lay in favour of issuance of temporary injunction--Respondent in circumstances directed not to demolish shops in question during pendency of suit.
Rana Muhammad Sarwar, Advocate Supreme Court and Muhammad Aslam Choudhery, Advocate-on-Record for Petitioner.
Farooq Zamanl Advocate Supreme Court and Abid Nawaz, Advocate-on- Record for Respondent.
Date of hearing : 9th February, 1981 (Lahore).
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.
Petition accepted.
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