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Petitioner: MUHAMMAD HANIF KHAN thorugh Attorney and another VS Respondent: MALIR JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Syed Hassan Azhar Rizvi Title:MUHAMMAD HANIF KHAN thorugh Attorney and another vs MALIR
JUDGMENT
Reported As: 2016 YLR 1652 Result: Order accordingly Judgment JUDGMENT AZIZ-UR-REHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 27.09.2010, the Petitioner No,1 viz. 'Muhammad Hanif Khan son of Haji Noor Khan, who is also a sole proprietor of Petitioner No,2 through his duly authorized Attorney namely Mr. Muhammad Hanif son of Abdul Ghaffar has/have sought the following reliefs:-- i). Declare that the impugned letters of Respondent Nos.1 dated 7th April 2010, 25th May, 2010 and 9th September 2010 are illegal, have been issued without lawful authority and are of no legal effect or consequence and to set aside the same. Ii). Direct Respondent No,1 to accept the balance amount of outer development charges, being Rs, 435,600/- in respect of the said property at the rate of Rs,30 per square yard in accordance with its letter of no objection dated 4th April, 1998. iii) Restrain and prohibit the Respondents and / or their agents, officers, and subordinates, whether directly or indirectly, from interfering in any manner with the legal and lawful rights of the Petitioners in respect of the subject property.' iv). Restrain and prohibit the Respondents and / or their agents, officers, and subordinates, whether directly or indirectly, from cancelling the approval of the building plans granted to and obtained by the Petitioners in respect of the Raza City Centre Project, in pursuance of the issuance of the impugned letters, ' That in addition to above, it is respectfully prayed that in exercise of its jurisdiction and powers under Article 199 of the Constitution, this Hon'ble Court be pleased to pass such further orders as it
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may deem fit, proper, appropriate, just and equitable so as to do complete justice in the us. Vi). Costs of the Petition. 2. Briefly the relevant facts in the background are as follows:-- 3. The Petitioner No,1, per assertion, is the owner of all the piece and parcel of land bearing Survey Nos. 160, 161, 162 and 163 admeasuring 6-00 acres in Deh Khanto, National Highway, District Malir (now Bin Qasim Town), Kara-chi [hereinafter referred to as the said property] and is also in possession of the said property. Mr. Muhammad Hanif son of Abdul Ghaffar per averments, is duly authorized attorney of the Petitioner No,1 to sign, verify, institute and prosecute this petition, as such, he is fully conversant with the facts of the case. The 'said property', it appears, was initially leased out to one Abdul Rasheed who upon payment of valuable consideration by Petitioner No,1, a General Power of Attorney bearing registration number 1047 was executed in favour of Petitioner No,1 in the year, 1998. 4. Accordingly, on 26th June, 1998, the Petitioner No,1 moved an application to Respondent No,1 viz. Malir Development Authority [In short MDA] for an approval of a 'layout plan of the said property. In response, on 4th August, 1998, the Additional Director (Town Planning) of Respondent No,1, wrote a letter to Petitioner No,1 whereby, the Additional Director [Town Planning], was pleased to issue an NOC for the approval of the 'layout plan however, subject to certain 'terms' and 'conditions'. Per Condition [x], the 'layout plan' for the said property was to be approved by Respondent No,1 only upon payment of 50% 'Outer Development Charges' [In short ODC] @ Rs,30 per square yard [tentative] and the 50% was to be charged after a period of 'Six months'. The Petitioner No,1 while, complying with the 'terms' and 'conditions', of letter No,MDA/MPD/SLT203/97/373 dated 4th August 1998 of MDA, paid an amount of Rs,435,600/- to Respondent No,1 as being 50% of the total amount of 'Outer Development Charges' at the rate of Rs,30 per square yard through challan No,37 dated 4th August, 1998. 5. Later on, by virtue of Section 3 of the Sindh Government Lands [Cancellation of Allotments, Conversions and Exchanges] Ordinance, 2000 [In short 'Ordinance III of 2001'], the Petitioner No,1 was informed that the 'said property' has cancelled, however, subject to payment of 'differential amount' being claimed by the Land Utilization Department Government of Sindh. Under the Land Utilization Department Government of Sindh's Letter No,02-65-02-DS-1/1499 dated 13.10.2004, addressed to the Executive District Officer [Revenue] of Respondent No,2, the payment of 'differential amount' demanded by the Land Utilization Department Government of Sindh from the Petitioners was also acknowledged. Accordingly, in pursuance of Section 5 of Ordinance III of 2001, the said property' thus besides stood regularized/restored, absolutely free from the ban imposed by the Government of Sindh. 6. By virtue of a Registered Indenture of Lease bearing No,3501 dated 1st December, 2004 [Annexure 'A-4' to the MoP] and a Registered Deed of Relinquishment bearing No,4321 dated 3rd October, 2005 [Annexure 'A-5' to the MoP], the Petitioner No,1 became the absolute owner, of the 'said property' with 'possession'. The Petitioners thus commenced a 'building project' under the name of 'Raza City Centre' on the 'said property' and consequently incurred heavy expenditures regarding developing and constructing the 'said property' as well as on obtaining necessary 'permissions' and 'approvals' from Respondents Nos.1 and No,3 and all other concerned authorities. A revised 'No Objection Certificate' for the 'sale' and 'advertisement' of 'flats' and 'shops' of the Petitioners' project' viz. 'Raza City Centre' was also granted by Respondent No,3 on 151 April, 2009 i,e, ground [shops, flats, parking and area] plus 'four [4] upper floors' [for the purposes of flats only]. The target date for completion of the subject project is/was 31st May, 2012. Per assertions, the Petitioners have effectively launched project, which is a 'residential'/'commercial project. Moreover, the Petitioners apart from other expenses, have also spent a huge amount on advertising of the project and as a result thereof 254 bookings have already been made.
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7. The Petitioners, nevertheless, were astonished and shocked upon receipt of a letter dated 7th April, 2010 whereby, the Deputy Director Incharge [ODC Cell] of Respondent No,1, demanded an amount of Rs .5,953,200/- towards' the 'Outer Development Charges' for the said property within a period of 7 days otherwise, cancellation of the 'Lay Out Plan' dated 4th August, 1998 was threatened. On 13th April, 2010, the petitioner No,2 under the aforesaid scenario, wrote a letter to Respondent No,1 regarding the highly exorbitant amount in the sum of Rs,5,953,200/- having been illegally and unlawfully demanded, by pin-pointing that as per 'clauses 3-3. 5.4' of the 'Karachi Building and Town Planning Regulations, 2002' [In short 'KBTPR'], the amount so demanded is not payable as in the case in hand 50% 'Outer Development Charges' have already been paid. No 'new' or 'revised' imaginary, illegal and unlawful rate except Rs,30 per square yard is applicable. The unlawful demand of Respondent No,1 was thus rejected outright by Petitioner No,2. The Petitioners also called upon the Respondent No,1 to withdraw its' illegal notice dated 7th April 2010. Nevertheless, on 2th May, 2010 again Respondent No,1 in its' own wisdom issued notice to Petitioner No,2 whereby, the same illegal and exorbitant amount i,e, Rs,5,953,200/- was demanded towards' the 'Outer Development Charges' for the said property within 14 days failing which Respondent No,1 expressly threatened for cancelling, the 'Layout Plan' dated 4th August, 1998. In response, the Petitioner No,2 again wrote a letter to Respondent No,1 and called upon it to withdraw the illegal notice dated 25th May, 2010, failing which the Petitioner[s] would be constrained to invoke the constitutional jurisdiction of this Hon'ble Court for redressal of its' grievance viz-a-viz the illegal demand of Respondents. 8. According to the Petitioners stand all the letters of Respondent No,1 dated 7th April, 2010, 25th May, 2010 and 9th September, 2010 [hereinafter referred to as 'the impugned letters] beside, illegal unlawful, mala fide, are tainted with 'ulterior motives'. Per Petitioners' version they are at a loss to understand the illegal demand in the sum of Rs,5,593,200/- as per NOC dated 4th April, 1998, the 'Outer Development Charges' for the 'said property' is @ Rs,30 per square yard only. Moreover, Clauses 3-3. 5.4 of the KBTPR clearly mentions that the 'Outer Development Charges' payable shall be based on the old rate as in the case in hand the Petitioner No,1 has already/admittedly paid 50% of the 'Outer Development Charges' to Respondent No,1 in the year, 1998. Not only this, per Petitioners' version, by virtue of a 'Notification' dated August 4th, 2006 also old rates of 'Outer Development Charges' [ODC] applicable in all those cases where 50% or more ODC' s amount has been paid as the case in hand is. 9. Upon filing of the above Constitution Petition when the above petition, came-up before this Court on 28.09.2010, then while, issuing notice to Respondents, the cancellation of the 'layout plan' was also suspended. Order dated 28.09.2010 reads as follows:-- 1. Urgency application is granted. 2. Deferred. 3. Exemption is granted subject to all just exceptions. It is, inter-alia contended that approval of the layout plan for the land ad measuring 6-00 acres which was regularized under the Ordinance III of 2001 was approved on 04.08.1998. It is contended that in terms of clause 10 thereof the layout plan was approved on payment of 50% outer development charges at Rs, 30/- per square yards (tentative) and balance 50 and will be charged after six months. It is urged that 50% charges as claimed was paid on the very next day as per Challan No,37 dated 07.08.1998. It is further urged that impugned demand of exorbitant amount was raised on 07.04.2010 in the sum of Rs, 59,53,200/- and on failure the cancellation of layout plan has been ordered through impugned order dated 07.09.2010. Learned counsel has drawn out attention to Regulation 3.5.54 which provides inter-alia that old rates would be applicable where 50% or more ODC has already paid and new rates would apply where less than 50% has been paid. It is urged that Since the petitioner
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case pertains to old case, therefore, new rates as claimed through impugned demand would not be attracted [Underlining is ours] ' According to the learned counsel, if at all Court comes to a conclusion that the amount is payable, he undertakes to pay the same. ' Let notice be issued to the respondents as well as Principal Law Officer of CDGK To come-up after two weeks. In the meantime, the impugned cancellation of layout plan dated 07-09-2010 is suspended. 10. On service, the Respondent No,1 through Syed Nishat Ali son of Syed Irtiza Ali filed a 'common counter affidavit' in response to 'Main Petition' as well as Injunction Application under Order XXXIX Rules 1 and 2 R/W Section 151, C.P.C. Bearing CMA No,1142 of 2010, wherein it was specifically averred that 50% payment of ODC at the rate of Rs,30 per square yard, was, no doubt, charged but it was as 'tentative rate' and also subject to the condition that the Petitioner [s] has to pay the remaining amount within 6 months after payment of 50% amount as per letter dated 04.8.2008 [Annexure All to the MoP]. Per version of the Respondents, the six months' period stands expired in the month of March, 1999 but the Petitioner failed to pay the remaining 50% amount until the rates of ODC were enhanced by the competent Authority of Respondent No,1 in year, 2006. In view of this position, the demand of Respondent No,1 in the sum of Rs,5,953,200/- instead of 50% balance amount in the sum of Rs,43,500/- towards 'Outer Development Charges' is not only correct but also lawful. 11. In the 'counter affidavit', it was however, admitted that the Petitioner has already paid Rs,435,600/- i,e, 50% of 'Outer Development Charges' at the rate of Rs,30/- per square yard. The stand taken by the Respondent No,1 was to the effect that the amount was of the 'tentative nature' as by that time, the rates for 'Outer Development Charges' were not decided/fixed. Moreover, the Petitioners have also failed to pay remaining amount of 50% within 6 months. And in the meantime on 23.06.2006, the competent authority of Respondent No,1 enhanced/revised the 'Outer Development Charges [In short ODC] at the rate of Rs,220 per square yard. The Petitioner under such scenario has rightly and legally demanded the amount of Rs,5,953,200/- after deducting 50% of ODC's amount having already paid by the Petitioner to Respondent No,1. 12. Respondent No,3 KBCA also filed its' counter affidavit, wherein inter-alia it has been asserted that the 'Architectural Concept Plan', indeed, was approved vide No,KBCA/KDA/DCB- XXX/952/182/98/93 dated 25.8.1998 but the same was later-on withdrawn due to withdrawal of 'layout plan' by concerned authority. Nevertheless, upon restoration of 'Architectural Concept Plan' vide letter No,KBCA/DCB(BQT)/ 2009/44 dated 15.4.2009, and after getting , 'necessary approval' from competent Authority, the 'Revised Proposed Plan' of Ground (Shops +Parking+Recreation+ Flat+04 upper floors (Flat) approved vide No,KBCA/DCB(BQT) Proposed/2010/1159/ 760/10/10 dated 31.5.2010 has been approved with the usual 'terms' and 'conditions' including the condition that 'Revised NOC' for Sale and Advertisement shall be obtained from Design Section. 13. In response to the 'counter affidavits', the petitioners also filed detailed affidavit-in-rejoinder(s) wherein, the allegations and averments made by the Respondents were not only specifically controverted but also vehemently denied. 14. Lastly, on 15.12.2015, when the Petition came-up before us, then we heard Mr. Shabbir Shah, learned counsel for the Petitioners, Mr. Iqbal Khurram, learned counsel for Respondent No,1 [MDA] and Sartaj Malkani for Respondent No,3 and with _their assistance also gone through available record. 15. Mr. Shabbir Shah, learned counsel for the Petitioners forcefully contended that the impugned letters dated 7th April 2010, 25th May, 2010 and 9th September, 2010 [Annexure 'A-8', 'A-10' & 'A-12' to the MoP respectively] issued by Respondent No,1 [MDA] are illegal, without lawful authority and of no legal affect. The Respondent No,1, per learned counsel, cannot deviate and derogate from the
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rate provided for 'Outer Development Charges' i,e, Rs,30 per square yards in respect of the 'said property' as mentioned/stated in its' letter of 'no objection' slated 4th August, 1998. [Annexure 'A-1' to the MoP]. Besides, MDA cannot deviate from Clauses 3-3. 5.4 of the Karachi Building and Town Planning Regulations 2002 having been inserted via the KBTPR Amendment 2006 wherein, it was clearly stated that the 'rate applicable' of the 'Outer Development Charges' would be at the old rate, as the Petitioner No,1 herein has already paid 50% of 'Outer Development Charges' in the sum of Rs,4,35,600/- before the KBPTR Amendment 2006 and this factum of payment has also been acknowledged by the MDA. Apart from above, the Respondent No,1, per learned Counsel for the Petitioners, is also bound by the Notifications dated 4th August, 2006 and 16th April 2010. 16. According -to Mr. Shabbir Shah, learned counsel for the Petitioners inter alia all the 'impugned letters' issued by the Respondent No,1 are also in violation of the Petitioners fundamental rights enshrined under Articles 9, 18, 23 and 24 of the Constitution of the Islamic Republic of Pakistan 1973 because on the face of it, they are laced with Mala fide intention' and 'ulterior motives' as the same are aimed only to delay, stifle and obstruct the development of the Petitioners' housing project viz. Raza City Centre. Per learned, the Respondent No,1 in any event is bound to act in accordance with the law and not otherwise. Moreover, in terms of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is the inalienable right of every citizen including the Petitioners to enjoy the protection of law and obviously to this extent Respondents Nos.1 to 3, cannot be permitted to take any action which is/seems detrimental to the 'project'/ 'subject property' of the Petitioners and/or their vested rights. The impugned letters of the Respondent No,1, per Mr. Shabbir Shah, also tantamount to compel the Petitioners herein to do that which the law otherwise, does not require them to do. Likewise, the 'impugned letters' and the 'acts' are also in clear violation of the Petitioners' fundamental right guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, where-under not only all the citizens are equal before law but also entitled to have equal protection of law. In the case in hand, the Petitioners despite having already fulfilled all its obligations are being discriminated by the Respondent No,1 in its' own wisdom. 17. Moreover, the impugned letters and actions of Respondent No,1 besides tarnishing the reputation of the Petitioners, has also delayed, stifled and obstructed its' aforesaid 'housing project'. The action, decision and demands taken/raised by the Respondent No,1 are not only illegal but also irrational, lacking propriety, failure of duty to act fairly and against the principles of natural justice as well as against . Petitioners' legitimate expectations. 18. Mr. Shabbir Shah, learned counsel for the Petitioners next contended in vehemence, that 'approval' of the 'layout plan' for the land ad measuring 6-00 acres regularized under the Ordinance III of 2001, was approved on 04.08.1998 and as per 'clause-x' of the Approval Letter No, MDA/MPD/SLT-203/97/373 dated 4.8.2008, the approval of the 'layout plan' was subject to payment of 50% Outer Development Charges at rate of Rs,30/- per square yards and balance 50% ODC was to be charged 'after six (06) months' and not within six (06) months as alleged on behalf of Respondent No,1. It is next urged by the learned counsel for the Petitioners that 50% 'Outer Development Charges' as was claimed has been paid on the very next day as per Challan No,37 dated 07.08.1998. The demand of the 'exorbitant amount allegedly raised on 07.04.2010 i,e, in the sum of Rs,59,53,200/- is not only illegal but unlawful. On failure, the cancellation of 'layout plan' has been ordered through 'impugned order dated 07.09.2010. According to learned counsel for the Petitioners Regulation 3-3.5.4 also provides inter alia that old rates are applicable where 50% or more ODC has paid. Per Regulation 3-3.5.4 new rates are only applicable to those cases where less than 50% has been paid. In view of this position as well, per learned counsel, since, the Petitioners case pertains to old category of cases, as such, the new rates as claimed in the sum of Rs,5,953,200/- besides, absolutely irrelevant are not attracted under the facts and circumstances
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of the present case. Lastly, learned counsel for the Petitioners prayed for granting of the petition otherwise, the Petitioners would be suffered seriously. 19. Adversely, Mr. Iqbal Khurram, learned counsel for the Respondent No,1 vehemently argued that the instant petition as 'framed' and 'filed' is not maintainable under law as such, is liable to be dismissed with cost. No doubt, 50% payment of 'Outer Development Charges'e Rs,30/- per square yard has already been paid by the Petitioners but it was 'tentative rate' and subject to the payment of the remaining 50% amount within six (06) months. Per learned counsel, despite lapse of six (06) months time w,e,f, 4.8.1998, the Petitioners however, have failed to pay the same as such now they are liable to pay ODC at enhanced rate/revised rate. 20. According to Mr. Iqbal Khurram, learned counsel for the Respondent No,1, the demanded amount in the sum of Rs,59,53,200/- on account of 'Outer Development Charges is quite legal and lawful as now the competent authority of Respondent No,1 w,e,f, 23.6.2006, has enhanced/revised the 'Outer Development Charges' at the rate of 220/- pa sq. Yard. Per learned counsel for the Respondent No,1 [MDA] since, the payment of 50% 'Outer Development Charges' paid by the Petitioners was 'tentative in nature' as such the Petitioners are liable to pay the 'Outer Development Charges' at 'new rates' having been later-on fixed by the Competent Authority of Respondent No,1. In support of his contention, Mr. Iqbal Khurram, learned counsel for the Respondent No,1 placed reliance on the unreported order/judgment passed on 14.10.2009 in C. P. No, D-973 of 2008 by this Court in the case of Soorty Enterprises (Private) Limited v. Malir Development Authority and others - 'Para 6' therefrom, being relevant is reproduced as under:-- "6. We have heard both the learned counsel and perused the record with the assistance of both the parties. It appears that the Petitioner admittedly made the payment of outer development charges which were provisional in nature and subject to enhancement by the respondent. The two paid challans available at pages 57 and 59 annexures B & B-I respectively to this petition, towards town planning security fee and outer development charges contained the words provisional on the top of those challans and same were paid without any objection by the Petition Rs, The undertaking given by the Petitioner which is available at page 167 as Annexure R-3 to the counter affidavit on behalf of the Respondent No,1 also demonstrate voluntarily provisional payment towards outer development charges by the Petitioners and further undertaking that "If the same rate will be enhanced in your department I shall bound to pay in due time without prejudice." The said undertaking was signed by Director of the Petitioner Mr. Shahid Rasheed Soorty on 31.01.2006. We are of the view that the outer development charges are charged on the basis of prevailing market rate and the provisional charges, though once communicated to the petitioner, cannot be considered final, more particularly in instant case where such charges were collected/paid provisionally subject to enhancement. In the instant case the said charges were claimed/paid on 31.01.2006 provisionally and not as final settlement towards outer development charges. The Petitioner once having accepted the same without any objection cannot be allowed to deviate from already agreed and acted upon terms and conditions in this regard" [Emphasis supplied]. 21. Likewise, Mr. Iqbal Khurram, learned counsel for MDA, Mr. Sartaj Malkani, learned counsel for the Respondent No,3 while, reiterating the pleas raised on behalf of the Respondent No,3 in its 'counter- affidavit' prayed for dismissal of the petition with cost. 22. Heard. 23. Before proceeding further and with a view to properly understand/appreciate the arguments of the learned counsel for the parties it would be advantageous to refer to and reproduce herein Regulation 3-3.5.4 of Karachi Building and Town Planning Regulation, 2002 inserted via Karachi Building and Town Planning Amendment, 2006 and the relevant part of the Gazette Notification dated August, 4, 2006 herein respectively as below:-- A.
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"3-3.5.4 Old rates of Outer Development Charges shall be applicable on those old cases where 50% or more ODC has already been paid. New rates shall apply to those old cases where less than 50% ODC has been paid" [Underlining is ours] B. than 50% ODC has been paid" EXTRA ORDINARY Registered No,M-324 [Underlining is ours] 'THE SINDH GOVERNMENT GAZETTE Published by Authority KARACHI, FRIDAY, AUGUST 4, 2006 PART! - A BY THE ' EXECUTIVE DISTRICT OFFICER (LAW) CITY DISTRICT GOVERNMENT KARACHI ' KARACHI BUILDING AND TOWN PLANNING REGULATIONS (AMENDMENT) 2006 ' CITY DISTRICT GOVERNMENT KARACHI MASTER PLAN GROUP OF OFFICES No: Nazim/City/Secy/1367/2006 - In exercise of the powers conferred under Section 21-A of Sindh Building Control Ordinance 1979 the Authority is pleased to make the following Amendments under provision 3A-1 of KB&TP Regulations-2002. Amendments for the town planning Projects/ Development permits and other matters performed by the Master Plan Group of Offices, CDGK. 3-3.5.3 After full stop following shall be added: ' Such permission shall be issued on payment of Outer Development Charges @ Rs, 234/- per sq. Yd. ' After the Clause 3-3.5.3 the following new Clause is added: "3-3.5.4 Old rates of Outer Development Charges shall be applicable on those old cases where 50% or more ODC has already been paid. New rates shall apply to those old cases where less. 24. Like-wise, another Notification No, DCO/CDGK/MPG0/2010/25 dated 16 . 04 . 2010 having been issued by Respondent No,2 is also reproduced herein for ready reference which…
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