'Intend to decide the following criminal originals by one consolidated order having similar facts and law:--
(i) Criminal Original No,243/W of 2003 and (ii) Criminal Original No,450/W of 2003.
2. The brief facts out of which aforesaid contempt petitions arise are that the petitioner filed Constitutional Petition No,6971 of 1994, which was disposed of by this Court vide judgment, dated 16-5-2002 with specific direction to the respondents to decide the representation of the petitioner in terms of requisite policy read with letter dated 13-4-1995, but the respondents failed to comply with the direction of this Court. The petitioner being aggrieved filed Contempt Petition No,243/W of 2003. The respondents were directed to file reply of the petition. The respondents filed reply of the petition. During the pendency of this petition, the petitioner also filed another Contempt Petition No,450/W of 2003, wherein the respondents were directed to file reply of the petition.
3. The learned legal advisor of the respondents has placed on record order passed by the respondents in obedience of direction of this Court dated 19-10-2004. Copy of the same has been supplied to the learned counsel of the petitioner.
4. The learned counsel of the petitioner after perusing the aforesaid order passed by the respondents submits that the respondents passed the order, dated 19-10-2004 without application of mind in derogation of direction of this Court; therefore, the respondents have committed contempt of this Court. He further submits that the action of the respondents in contemptuous, therefore, proceedings under Contempt Act and under Article 204 of the Constitution, may be initiated against them.
5. The learned legal advisor of the respondents submits that the respondents have considered the view points of the petitioner in terms of letter, dated 13-4-1995 as is evident from paragraph No,2 of order dated 19-10-2004. He further submits that the respondents have complied with the order, therefore, contempt proceedings may not be initiated against the respondents.
7. I have given my anxious consideration to the contentions of learned counsel of the parties and perused the record.
8. It is better and appropriate to reproduce the operative of judgment, dated 16-5-2002 passed in W.P. No,6971 of 1994 and operative part of order, dated 19-10-2004 to resolve the controversy between the parties:-- ' Operative part of judgment, dated 16-5-2002 "In view of the aforesaid discussion,' writ petition is accepted to the extent that respondents shall consider the case of the petitioner in terms of aforesaid policy read with letter, dated 13-4-1995 and pass an appropriate order strictly in accordance with law within one month after receiving the order of this Court."
' Operative part of letter dated 19-10-2004 "I have gone through the record. Heard the contention of the party as well as L.D.A. The Circular Letter No,SO(D-II)2-3/92 dated 13-3-2000 in which it has been clarified that instructions conveyed vide letter, dated 18-5-1999 are applicable to the housing schemes sponsored by H&PP Department. In this circular various Development Authorities/Improvement Trusts (including L.D.A.) have been allowed to recover surcharges/ penalty on account of extension in building construction period according to rates prescribed in the Policy bearing No,SO(D11)2-3/92, dated 19-10-1993 (copy enclosed). The L.D.A. Has already given a demand notice to the petitioners for deposit of building period w,e,f, 4-1-1990 to 31-12-2003, for deposit of Rs,1,39,918 which he has not paid and moved contempt petition against the L.D.A.
' In view of the letter of HUD & PHE Department letter, dated 13-3-2000, the building surcharge circulated by the Government dated 19-10-1993 are applicable on L.D.A. And L.D.A. Has rightly issued demand notice for deposit of building period surcharge w,e,f, 4-1-1990 to 31-12-2003, amounting to Rs,1,39,918. It is, therefore, held that the petitioner is bound to pay building surcharge according to circular dated 19-10-1993 amounting to Rs,1,39,819."
' In case, the compliance order of respondents dated 19-10-2004 and judgment, dated 16-5-2002 are put in juxtaposition, then it is crystal clear that the respondents passed the order, dated 19-10- 2004 without adverting to the operative part of judgment, dated 16-5-2002 passed by this Court in W.P. No,6971 of 1994. It is pertinent to mention here that the respondents did not challenge the judgment of this Court, dated 16-5-2002 passed in the aforesaid W.P. No,6971 of 1994 before any higher forum; therefore, it is binding upon the parties as per law laid down by the Honourable Supreme Court in Pir Bakhsh v. The Chairman Allotment Committee and others PLD 1987 SC 145. It is also settled principle of law that nobody should be penalized by inaction of the public functionaries, as per principle laid down by this Court in Ahmad Latif Qureshi v. Controller of Examiner, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah.
3. It is also settled principle of law that everybody is bound to obey the command of the Constitution in view of Article 5(2) of the Constitution as per law laid down by the Honourable Supreme Court in Ch. Zahoor Elahi's case PLD 1975 SC A 383. The public functionaries are also duty bound to act in accordance with law in view of Article 4 read with Articles 189, 190 and 201 of the Constitution. Meaning thereby to act within the framework of Law and Constitution, Laws are made not to make them merely on the Statute Book, which is framed to act upon them, which is in consonance with Holy Qur'an as enshrined in Surah Baqra. The question of law has been examined by this Court in Messrs Nishat Mills Limited v. Government of Pakistan and others 1989 CLC 1692, wherein the principle has been laid down by this Court, that the respondents' have no lawful authority to criticize the judgment of this Court or to decide the case without adverting to the direction of this Court. The aforesaid proposition of law was examined by the Honourable Supreme Court in Works Cooperative Housing Society and another v. The Karachi Development Authority PLD 1969 SC 430 and laid down the following principle:-- "In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart from the direction contained in the notification of the 9th of June, 1964, "so long as it stands in fact". Did it contemplate that the withdrawal of the notification by the Provincial Government at a subsequent stage would defeat the right of the appellant-Society? Was this Court thereby only declaring a right contingently? I think not."
9. Subsequently, the Honourable Supreme Court considered this question of law and approved the same in Capt. (R.) Abdul Qayyum Executive Engineer v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184. Non-observance of orders of the Superior Courts, the judgment of this Court cannot be modified as and when the respondents had interpreted the judgment of this Court according to their own wishes, which is not in consonance of law laid down by the Honourable Supreme Court in N.E.D. University of Engineering and Technology v. Imtiaz Ali 2001 SCM R 832. It is also settled principle of law that our Constitution is based on Trichotomy. In case, the public functionaries are allowed to bye-pass the direction of this Court, then it will create chaos, which brings a situation to minimize the State concept of Sovereign Islamic State minus a strong and independent judiciary is unimaginable. If the judiciary of the country is stripped off, its power, the country would cease to exist as free nation as the law laid down by the Honourable Supreme Court in State v. Tariq Aziz and 6 others 2000 SCM R 751. The public- functionaries did not perform their duties in accordance with law. The Legislature in its wisdom added section 24-A in the General Clauses Act, wherein the public functionaries are bound to decide the controversy after application of mind. Mere reading of the order, reveals that the officer who has passed the order, did not even advert to the direction of this Court, which fact brings the case in the area that he has passed the order without application of mind. It is pertinent to mention here that in case, we want to live as independent nation, then everybody has to work within the command of the Constitution and law and should not hesitate to discharge his duties in accordance with law and Constitution, otherwise the rule of Jungle will prevail, which is not in the interest of country and nation. People of Pakistan must provide justice by all the organ of the State. Everybody has to work honestly, fairly and justly as held in Messrs Airport Support Service v. The Airport Manager, Karachi 1998 SCM R 2268 for the purpose of building of national character as is highlighted by Lord Wavel about Founder of Pakistan, which is reproduced hereunder:-- "He (Founder of Pakistan) is not only honest but he is also intellectually honest."
' The Honourable Supreme Court has laid down the principle in Shaukat Ali and others v.
Government of Pakistan Ministry of Railways and others PLD 1997 SC 342, that public functionaries have to work within the framework of Constitution and law.
10. Keeping in view the stand taken by the legal advisor of the respondents as mentioned above, I have taken lenient view not to proceed under contempt proceedings, as per principle laid down by the Honourable Supreme Court in Supreme Court Bar Association of Pakistan v. Federation of Pakistan and others PLD 2003 SC 82. It is also settled principle of law that this Court has discretion to proceed against the respondents or not. In view of the aforesaid circumstances, I am not inclined to proceed against the respondents as per law laid down by the Honourable Supreme Court in Mst. Safia Bibi v. Mst. Aisha Bibi 1992 SCMR 494. The question of law has also been considered by the Calcutta High Court in Tarit Kanti Biswas's case reported in AIR 1918 Cal.
988. The relevant observation is as follows:-- "The Court has in respect of a contempt of Court should be exercised with great care and it should only be exercised when the case is beyond all reasonable doubt, and this should especially be the case when the proceedings are at the instance of Court itself."
11. In view of what as been discussed above, the impugned order passed by the respondents, under the direction of this Court on 19-10-2004, is without lawful authority and this Court has ample jurisdiction to look into the- subsequent events at the time of deciding the cases, as per. Principle laid down by the Honourable Supreme Court in Mst. Amina Begum and others v. Mehr Ghulam Dastgir PLD 1978 SC 220. This Court has ample jurisdiction to convert the proceedings of one nature into another nature. In view of the aforesaid circumstances the aforesaid contempt petitions are converted into Constitutional petitions, therefore, the impugned order passed by the respondents during the pendency of aforesaid contempt petitions, is set aside.
12. In this view of the matter, the petitioner is directed to appear before respondent Land Director of Development, L.D.A. In his office at 11-00 a.m. On 27-10-2004 who is directed to pass a fresh order in terms of direction of this Court vide order, dated 16-5-2002, preferably within one month. He is further directed to submit his report to the Deputy Registrar (J) within the prescribed period.
' With these observations, the aforesaid petitions are disposed of. Copy Dasti on payment of usual charges.