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Petitioner: Dr. Khushnood Ali Baz VS Respondent: Govt of KPK etc
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan Title: Dr. Khushnood Ali Baz vs Govt of KPK etc Case No.: Writ Petition No.1685-P/2017 Date of Judgment:2017-05-11 Reported As: 2017 PHC 295 Result: Petition accepted
JUDGMENT
JUDGMENT ROOH-UL-AMIN KHAN, J:- Through this common judgment, we, propose to decide the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), filed by Dr. Khushnood Ali Baz and 111 others and connected Writ Petition No.1850-P/2017, filed by Muhammad Khursheed Khan, Advocate, (petitioners herein), as in both the petitions, the vires (legality and validity) of the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017 (herein after referred to, the impugned Act), whereby section 9 of the Khyber Pakhtunkhwa Local Government Act, 2013 was amended, has been challenged, inter alia, that the impugned Act, not only runs contrary to the concept of "independence of judiciary" and "supremacy of law", but also infringe the fundamental rights of the petitioners as provided in Part-II Chapter-I of the Constitution, as well as outrages the "system of administration of justice" and "redress", and is based on mala fide for ulterior motives with the prime object to nullify the considered judicial verdicts/judgments of this Court and the august Supreme Court. 2. The impugned Act, read as under:- "WHEREAS , it is expedient further to amend the Khyber Pakhtunkhwa Local Government Act, 2013 (Khyber Pakhtunkhwa Act No.XXVIII of 2013), for the purposes hereinafter appearing; It is hereby enacted as follow: 1. Short title and commencement.---(1) This Act may be called the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017. (2) It shall come into force at once. (3) The provisions of this Amendment Act shall remain in force for a period of five (05) years from the date of its commencement and shall stand repealed on the expiration of the said period.
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2. Amendment of section 9 of the Khyber Pakhtunkhwa Act No.XXVIII of 2013.--- In the Khyber Pakhtunkhwa Local Government Act, 2013 (Khyber Pakhtunkhwa Act No.XXVIII of 2013), hereinafter referred to as the said Act, in section 9, after sub-section (3) the following new sub-sections shall be added, namely: "(4) Notwithstanding anything contained in this Act or in any other law, rules, regulations, bye-laws, for the time being in force, in any master plans relating to use of land or in any judgment or order of the Supreme Court or High Court, as the case may be, after the commencement of the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017, any land or building in the University Town, Peshawar, shall be permissible for commercial, educational, Government or semi-Government Offices, diplomatic mission offices, financial institutions, guest houses, clinical and for mix use as residential and commercial activities for a period, not exceeding five (05) years, with such limitations and restrictions as prescribed in rules and on payment of such fees by the owner of the land or building as the Government may prescribe by rules: Provided that change in site plan shall be allowed as per building laws or rules: Provided further that any land or building in the University Town, Peshawar, which is already in use for commercial purposes mentioned in this sub-section but permission for which has not been obtained or not allowed for any reason, the owner of such land and building shall apply to Government within a period of three (03) months after the commencement of the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017, for conversion of his residential land or building for commercial purposes on payment of prescribed fees and in case he fails to do so, he shall be liable to pay penalty or fine in the prescribed manner. (5) Government shall, within thirty (30) days of the commencement of the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017, make rules for carrying out the purposes of this section, in accordance with the parameters specified in Eight Schedule." 3. Petitioners are the inhabitants of University Town, Peshawar. As per their assertion, initially, the issue of commercial activities in the residential areas of the University Town, Peshawar, cropped up before this Court in Writ Petition No.679 of 1999, decided on 30.10.2003, whereby any sort of commercial activities in any form, whatsoever, in the residential area within the limits of the University Town, was held to be illegal. The same issue was re-agitated before this Court in Writ Petitions No.2635-P of 2013, as well as W.P. Nos.3152-P, 3375- P, 3380-P, 3468-P, 3491-P, 3492-P, 4578-P, 3658-P, 3653-P of 2014 and W.P. No.47-P of 2015. This Court while dismissing the aforesaid writ petitions, through a common judgment dated 10.03.2015, issued the following directions to the respondents:- (i) That law/ bye laws/ regulations meant for the purpose be made applicable at par without any discrimination and even in some cases the conversion has been allowed, which is not permitted by the law, the same be revisited and proper action be initiated. (ii) The Schools/ Colleges and Hospitals excluding Medical Clinics, be given four months time for shifting of their businesses and exactly after four months law should be enforced, positively. (iii) Rest all the petitioners or premises against which the notices have been served and all the premises which are being used for any other purpose except residence be sealed, immediately. (iv) Action be initiated against all those, right from field officials till the head/controlling authority who remained in the office/ power after the judgment delivered in WP No.676/1999 decided on 30.10.2003 for committing criminal negligence, inefficiency amounting to misconduct and compliance report be submitted to the Additional Registrar (Judicial) of this Court within three months. The office of the Advocate General is put to alert in this respect and any non-compliance be brought to the notice of this Court through a reference. Copy of this judgment be sent to all Local Area Authorities of all Townships of the Province." The grievance of the petitioners is that the respondents intentionally remained unwilling and hesitant to comply with the aforementioned directions/judgments of this Court, therefore, they being the ultimate affectees, filed Petitions Nos.250-P and 520-P of 2016 before this Court for initiating contempt of Court proceedings against the delinquent, wherein, this Court repeatedly directed the respondents-Provincial
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Government as well as District/ Local Government to stop all illegal commercial activities going on inside the University Town, in response whereof, the respondents made hollow assurances and false commitments qua removal of the illegal commercial activities, but with no premium. On one of the date, the Principal Law Officer representing the Provincial Government in contempt proceedings, appeared before the Court and made a commitment to comply and obey the directions of this Court in its letter and spirit, however, in the meantime, the respondents promulgated/enacted the impugned Act, wherein sub-section 4 has been added to section 9 of the Khyber Pakhtunkhwa Local Government Act, 2013, whereby, all sorts of commercial activities in the residential area of the University Town, notwithstanding whatever is ruled and adjudged by this Court in its judgments has been permitted, hence, these petitions with the following prayer:- i. To declare the Khyber Pakhtunkhwa Local Government (Amendment) Act, 2017 as illegal, ultra vires, unconstitutional, void ab initio, based on mala fide, arbitrary , and ii. To quash and strike down the same. iii. Issue a writ of prohibition in perpetuity restraining the official respondents from sanctioning/ allowing and approving conversion of residential area of University Town Peshawar into Commercial one, and iv. Grant any other relief considered just and appropriate under the given circumstances of the case, but not specifically prayed for . 4. Notice of the petitions was given to the learned Advocate-General KPK, Peshawar. During hearing of the instant writ petitions, M/S Health Care Center , Sahibzada Abdul Qayyum Road University Town Peshawar , Muhammad Javed c/o Spinzar Plaza Peshawar, Dr. Shahnaz etc, filed C.M. Nos.061-P, 1028- P1062-P and 1054-P of 2017, respectively, for their impleadment in the panel of the respondents being necessary parties. In light of the grounds agitated in their respective applications, the applicants are necessary parties, therefore, it would be appropriate and in the interest of justice to provide them an opportunity of hearing. Accordingly, the applications are allowed and the applicants are impleadement in the panel of the respondents. Necessary entries in the memo of writ petition and relevant record be made in this regard. 5. Learned counsel for the petitioners argued that the impugned legislation is based on mala fide with the prime object to nullify the commands of judgments of this Court, in an unlawful manner, trampling the constitutional mandate, violating the law of the land, offending and adversely affecting the fundamental rights of the petitioners. The impugned Act is the worst example of negating the concept of independence of judiciary, supremacy of the rule of law and Constitution as well as to outrage the system of administration of justice and redress being enshrined in the Constitution; that the impugned Act is person/ class/ area specific and its aim is to reduce and render the judgments/writs of judicature into mere paper decrees and relegate the entire system of administration of justice impotent, which in turn, encourages nothing but anarchy which would destroy the confidence of the masses in the judicial system. Learned counsel while buttering his arguments emphasized that the impugned Act falls beyond the legislative competence of the Provincial Government as applicability of Khyber Pakhtunkhwa Local Government Act, 2013, is specifically ousted by Statutory dispensation i.e Notification No. AO (LG)-2(3)/80-II (B) dated 01.04.1989, which has duly protected and kept alive by the saving clauses of the successive Local Government Ordinances/Act promulgated in the KPK. In this view of the matter, the notification ibid still holds the field and the Provincial Assembly was not within its competence to introduce the impugned amendment in the Khyber Pakhtunkhwa Local Government Act, 2013, as the Act was not applicable to the University Town, Peshawar, for administration purposes. In this way, the impugned Act is not only ultra vires but also contradictory and violative of the Khyber Pakhtunkhwa Local Government Act, 2013. He also averred that the Provincial Government by introducing the impugned Act has not addressed the root cause identified by this Court in its earlier judgments; therefore, the impugned Act is violative of the judgment of the Apex Court, rendered in Contempt Proceedings against Chief Secretary Sindh and others in Criminal Original Petition No.89 of 2011 (2013 SCMR 1752). Learned counsel went on to say that the Master plan of a local area, like the University Town is published in the official Gazette and it can be termed as Statutory Local Area Plan, because by law, such plan is passed by the Provincial Assembly, followed by its publication in the official Gazette. Before promulgation, the
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publication of a Statutory Local Area Plan inviting public objections and opinion, are sine qua non under the law and once these objections and opinion are dealt with and decided, a Local Area Plan is placed before the Provincial Assembly for approval. In this view of the matter, if such Local Area Plan is sought to be amended, then before bringing such amendment, invitation of public objections and addressing their concerns, is imperative, this of course, has not been adopted by the respondents while enacting the impugned Act. He further contended that a final verdict of a Court of competent jurisdiction cannot be annulled, set aside, vacated, reversed, modified or impaired in any manner, whatsoever. The legislature is not only prohibited from re opening cases previously decided by the Courts, but is also banned from exercising the inherent attributes of writing judgments through legislation, because in the Constitution, such attributes are vested in the Courts alone; that though mala fide cannot be generally attributed to the Legislature, yet if in case deliberate and repeated attempt is ventured to nullify the considered judicial verdicts, and that too, in an unlawful manner, trampling the constitutional mandate and violating the law, then in such eventualities the worthy superior Courts are refrained from attributing bona fide to the Legislature. The ultimate object and goal of the Constitution is to maintain and establish 'Rule of Law', which connotes that it is the law which is supreme and predominant as opposed to the influence of the arbitrary powers. This concept also presupposes that everyone is equal before law and that law affords equal protection to all without a tinge of discrimination and favour. Similarly, the tracheotomy of powers provided in the Constitution aims to maintain a system of 'administration of justice' and 'redress' in the manner that whosoever complains a violation of legal right there is a mechanism for its redress and once redress is provided by judicial pronouncement, there is nobody including any organ of the State, be that Legislative or Executive, who could snatch or take away such redress flowing from a judicial pronouncement. Learned counsel lastly submitted that keeping in view the above facts and circumstances, the impugned legislation/ Act may be declared as ultra vires. 6. Conversely , learned Advocate General Khyber Pakhtunkhwa assisted by learned counsel for the private respondents contended that legislation of the law is the domain and prerogative of the Legislature, hence, the legislative Act cannot be struck down by this Court under its constitutional jurisdiction on the grounds of mala fides or lack of bona fides or non-application of mind in exercise of such power. They added that, function of the judiciary is not to legislate or question the wisdom of the legislature in making a particular law. The legislative enactment can only be struck down by the Court only on two grounds, firstly, where the appropriate legislature did not have competency to make the law, and secondly, where the enactment abridged any of the fundamental rights enumerated in the Constitution or any other Constitutional provisions. They contended that the impugned legislation is not against the fundamental rights of the petitioners because majority of the inhabitants of the University Town have appreciated the commercialization in as much as, the amendment Bill has been passed unanimously, after hot and heavy debate on the floor of Assembly. The commercial activities in University Town will make the lives of its inhabitants more easier by way of availability of basic civics facilities and allied necessities of life i.e. education, health care, commodities, etc. In support of their view, learned counsel submitted that Lahore Development Authority (LDA) introduced 'Land Use (Classification, Re-classification and Redevelopment) Rules, 2009, whereby commercial activities along the full stretch of 17 road (including M.M. Alama Road) situated in the controlled area, have been allowed besides permitting business ventures on specified segments of 12 thoroughfares in the heart of the city. With regard to the competency of the Provincial Government to enact and promulgate the impugned Act as well as its applicability to the University Town, they contended that under Article 140-A of the Constitution, the Provincial Legislature has exclusively been vested with the powers to make law for establishment and running the affairs of the Local Government System in the Province. In view of Article (ibid), the Provincial Government of Khyber Pakhtunkhwa legislated and published the Khyber Pakhtunkhwa Local Government Act, 2013, for constructing and regulating the Local Government Institutions, strictly in accordance with the requirement of Articles 32, 37 and 140-A of the Constitution in which the impugned legislation has been inserted through the
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amendment by adopting the proper procedure. In support of his arguments, learned Advocate General produced a copy of minutes of meeting of the Provincial Cabinet dated 29.03.2017, wherein at Additional Item No.2 of the Agenda, the impugned amendment has been placed. He also referred to the decision of the Committee wherein it has been specifically mentioned that the Cabinet after thorough discussion related to height of buildings and date of effectiveness of the proposal, decided that the department should refine the item in consultation with the Law Department and ensure that the proposal is not in conflict with the decisions of the Peshawar High Court. They argued that the impugned enactment has been brought through proper legal procedure of legislation as well as in light of judgment of this Court, which in no way is violative of any fundamental right, hence, is intra vires. With regard to notification dated 01.04.1989 and referring to section 172 of the Local Government Ordinance, 1979, the saving clause under section 196(2) of the Local Government Ordinance, 2001 and saving clause 5 of the Local Government Act, 2012 and 120 of Local Government Act, 2013, contended that each saving clause specifically provides, "and not inconsistent with any of the provisions of this Ordinance/Act". Thus, if the aforesaid notification runs contrary to the main Act/Statute, the same being subservient to the former could not be given preference and weightage over the parent statute i.e. amended Act, 2013. Elaborating their view point, they contended that the amendment in the Act/ Parent Statute cannot be struck down for being ultra vires of the Rules/ Bye-law made thereunder as the same are subservient and subordinate to the Act. They further contended that the judgments of this Court, in W.P. No. 676 of 2003 and W.P. No.2635-P of 2013, speak about implementation of the law, as it was then, for the University Town. Both the judgments did not point out any defect in law which needed to be cured. The main theme of the judgments was that there was no law allowing commercialization of residential properties in the University Town and now the law has been enacted in this regard through the impugned Act. They added that even if there was any express law/ rule/ bye-law prohibiting commercialization of residentia l properties, the same have been expressly ousted by the non-obstinate clause inserted in the impugned Act, leaving no room of confusion and ambiguity . They lastly submitted that vires of law can only be challenged being violative of any provision of the Constitution but not on the ground that it nullifies the judgment of the superior Court, thus sought dismissal of both the petitions. 7. We have considered the exhaustive arguments advanced at the bar from either side, perused the available record and gone through the precedents produced during arguments. 8. Learned counsel for the petitioners has put a lot of emphasis and argued with vehemence that the root cause identified by this Court in its judgments, rendered in Writ Petition No.676 of 2003 and W.P. No.2635-P of 2013, have not been addressed in the impugned legislation. It appears from the record that, for the first time, the controversy/ issue of running commercial activities in the residential areas of the University Town, Peshawar, cropped up before this Court in Writ Petitions Nos.676, 192 of 1999, 1143 of 2001, 980 of 2002 and 101 of 2003, filed by Abasyn Institution of Medical Sciences, All Pakistan Private Schools Management Association, Bloomfield Hall Peshawar, and City School, Peshawar, respectively, whereby they had challenged the notices issued by the Provincial Government directing the Administrator University Town Committee, to shift the schools outside the premises of residential area of University Town, which were not permissible to runction under the N.W.F.P. (now Khyber Pakhtunkhwa) Local Government Ordinance, 1979 read with Building Regulation, 1985. These writ petitions were dismissed by this Court through its consolidated judgment dated 30.10.2003, the operative part of which read as under:- "As stated earlier some of the impugned notices have been issued on the basis of the decision of the Provincial Government directing the University Town Committee to shift the school out of the University Town. Argument has also been raised before us that the said decision did not relate to local Schools but was confined to schools run for Afghan Refugees. Whether the notices have been issued by the Administrator University Town Committee on its own on the direction of the Provincial Government, is not relevant to the issue as to whether the petitioners can under the law be allowed to run their schools. As held above, the establishment of the schools by the petitioners in premises constructed for residential purposes without proper sanction of the competent authority is in violation of the law. Even otherwise, the equitable relief cannot be granted to those who violate the law."
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The same controversy was re-agitated before this Court in Writ Petitions Nos. 2635 of 2012, 3152-P of 2014, 3375-P, 3380-P, 3468, 3491-P, 3492-P, 3548-P, 3653-P of 2014 and 47-P of 2015. These petitions were also dismissed through a common judgment dated 11.03.2015, however, the following directions were given to the respondents by this Court:- (i) That law/ bye laws/ regulations meant for the purpose be made applicable at par without any discrimination and even in some cases the conversion has been allowed, which is not permitted by the law, the same be revisited and proper action be initiated. (ii) The Schools/ Colleges and Hospitals excluding Medical Clinics, be given four months time for shifting of their businesses and exactly after four months law should be enforced, positively. (iii) Rest all the petitioners or premises against which the notices have been served and all the premises which are being used for any other purpose except residence be sealed, immediately. (iv) Action be initiated against all those, right from field officials till the head/controlling authority who remained in the office/ power after the judgment delivered in WP No.676/1999 decided on 30.10.2003 for committing criminal negligence, inefficiency amounting to misconduct and compliance report be submitted to the Additional Registrar (Judicial) of this Court within three months. The office of the Advocate General is put to alert in this respect and any non-compliance be brought to the notice of this Court through a reference. Copy of this judgment be sent to all Local Area Authorities of all Townships of the Province." 9. Perusal of the judgments of this Court in the Writ petitions mentioned above, depict that this Court ordered implementation of the relevant law governing the residential and commercial activities in University Town, Peshawar, as it then was. Nowhere in these judgments any defect in the law has pointed out which need cure. The only point determined by this Court in the judgments (supra) was that there was no law on the statute book, allowing commercialization of the residential properties of the University Town. This Court in its judgment dated 11.03.2015, rendered in W.P. No.2635-P/2013, underline the provision of Ordinance, 1979, Ordinance, 2000 and Act, 2012, where under the use of residential building for any other purpose, was prohibited unless the requisite permission sanction was formally obtained. This Court accentuated the law/bye-law/regulation meant for the purpose be made applicable and all illegal constructed buildings for commercial use be sealed, while the delinquent officials be dealt with departmentally. In the judgment referred to above, we could not see any flaw or shortcoming has pointed out addressable or remediable. At the time of hearing the WP No.2635-P/2013, conversion of residential houses were not permissible, while, by now through the impugned legislation a law about the commercialization of the residential area has been introduced. A look over the impugned Act reveals that it does not run contrary with the judgments of this Court nor does it infringe the fundamental rights of the petitioners. 10. Adverting to the allegation with regard to vires of the impugned Act, we would refer to the guidelines and principles laid down in case titled, "Lahore Development Authority through DG and others Vs Ms. Imrana Tiwana and others" (2015 SCMR 1739), wherein it has been held by the Hon'ble Supreme Court:- "That power to…
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