AQEEL AHMED ABBAS!, J. --- The petitioner, a private limited company has assailed the notice dated 24.11.2007 and 1.2.2008 issued by the respondent No. 1 i.e. M.D.A. Towards recovery of outstanding outer development charges in respect of approved layout plan of Survey Nos: 261, 262, 263, 264, 265, 266, 332, 333 & 335 admeasuring 31 acres and 27 ghuntas, located at Scheme No. 25-A, Shah Latif. Town, Deh Landhi, Bin Qasim, Karachi.
2. Brief facts of the case are that the petitioner acquired subject plots of land by way of conveyance deed dated 23.5.2005. According to the petitioner they had paid Rs. 155,375/- and. Rs.
15,330,700/- to the respondent vide challan Nos. 270 and 271 both dated 30.1.2006 aggregating to a total amount of Rs. 15,486,075/- for the approval of layout plan in respect of subject property. On 24.11.2007 the respondent No. 1/MDA issued a demand letter intimating enhanced, rates of outer development charges @ Rs. 220/-per square yard for Shah Latif Town Scheme No. 25-A. Said demand has seriously been objected by the petitioner for being arbitrary and without legal sanction. According to the learned counsel for the petitioner once the amount towards the outer development has been charged by issuing challans to the petitioner, and after approval of layout plan in respect of subject property at the agreed rate i.e. Rs. 100/- per square yard, the respondent No. 1 cannot enhance the said charges retrospectively. In this regard, he has placed reliance on following judgments:-
(1) Messrs Nemat Flour Mills (Pvt.) Ltd. Through Director and 6 others v. Government of Punjab through Secretary, Local Government and Rural Development Department, Lahore and 3 others, 2001 YLR Lahore 835.
(2) Messrs Zafar Enterprise v. Karachi Port Trust,' 2003 YLR Kar. 205.
(3) Tehsil Municipal Administration and others v. Noman Azam and others, 2009 SCMR 1070.
3. The respondent No. 1/MDA who opposed the petition for being not maintainable and misconceived in law and facts. It has been argued by the learned counsel for respondent that on the basis of the documents relied by the petitioner itself, the petition is not maintainable. In this regard he has referred to the impugned notice i.e. Annexure 'C' at page 61 which is letter for recovery of outstanding amount in which reference is made to condition No. 1 of approval letter No. MDAMPD/SLP/250/2005/519, dated 6.2.2006, which is available at page 63 of this petition as Annexure C-1. Learned counsel for the respondent No_ 1 had drawn our attention to condition No. 7 which is as follows:- "The O.D.C. Realized @ Rs. 100/- per square yard, is a tentative. The sponsor/owner/attorney is bound to pay the balance amount of O.D.C. Within three months time as and when enhanced/revised by the competent authority."
4. He further referred to the challans both dated 31.1.2006 i.e. Annexures "B" and "B-1" at pages 57 & 59 of this petition respectively on which the word (PROVISIONAL) is clearly printed. He also referred to Annexure R-3 filed alongwith comments of the respondent No. 1 which is a undertaking dated 31.1.2006 submitted by the petitioner before, the respondent, the same is reproduced for the sake of reference:--- "Sub: Payment of Outer Development Charges in respect of Land Measuring 31-27 Acres of S.Nos.
261, 262, 263, 264, 265, 266, 332, 333 & 335, Deh Landhi @ Rs. 100/- Sa.Yds. As a ten applicable rate.
It is submitted that I undersigned is the owner of subject land and pay the outer Development charges as per order of the project director M.D.P @ Rs. 100/- per Sq.Yd. And submitting a pay order of Rs. 15,330,700/- pay order No. 0014614 which may kindly be accepted further I undertake that if the same rate will enhanced in your department I shall bound to pay the same in due time without prejudice. As well as N.O.C. For environment control agency concern I have applied for the same which is expected within a month time as soon as I received the same I will submit your department." sd/- Shahid Rashid Soorty (Director) M/s. Soorty Enterprises (Pvt.) Ltd.
5. According to the learned counsel for respondent No 1 once the petitioner company has voluntarily made the provisional payment and has also specifically undertaken to make the payment of the enhanced /revised outer development charges now at later stage cannot fall back upon the said commitment. He further submitted that the petitioner is precluded from raising such objection on account of estoppel as well as in terms of Article 115 of Qanoon-e-Shahadat Order, 1984. In this regard he placed reliance on the following case-laws:---
(1) Sunderabai who Devrao Deshpande and another v. Devaji Shankar Deshpande, AIR 1954 SC 82.
(2) Haji Ghulam Rasool and others v. Chief Administrator Auqaf, West Pakistan, PLD 1971 SC 376.
(3) Gulfam and another v. A.I Muhammad & others, PLD 1989 Karachi 499.
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-1 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 petitioners. 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 voluntary 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 31.1.2006. 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 31.1.2006 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.
7. In view of the facts, we are of the opinion that the instant petition is misconceived on the ground agitated by the petitioner, the same was dismissed alongwith listed application with no order as to cost vide our short order dated 14.10.2009, these are the detailed reasons for the sam .