RAUF AHMAD SHEIKH, J. - The petitioners have assailed the vires of order No. SO(D-l 1)6-7/97, dated 27.03.2004 and notice No. 2366, dated 09.07.2005 creating a demand' of Rs. +,37,66,850/- against them and have prayed that the same be declared as illegal, without jurisdiction and lawful authority.
2. It is contended that the petitioners purchased property No. 62-A, Satellite Town Scheme, Rawalpindi, in equal shares 30 years back. A large number of properties situated at Murree Road including the Sports Club of the Government of the Punjab were converted into commercial buildings so it became impossible for the petitioners to live peacefully in their residence and keep its original nature intact so they submitted an application like other owners for commercialization of the property in the year 1995. The Government allowed commercialization in relaxation of the policy to the petitioners and many others at the rate of Rs. 3,0, 000/- per Kanal and ordered that on realization of the commercialization fee, the building plan be approved so they deposited a sum of Rs. 26,81,875/- (Rupees twenty six lac eighty one thousand eight hundred and seventy five only) as per schedule. The building is situated on the main road, which is a link between Rawalpindi and Islamabad so the Government involved many Departments in issuance of the approval for the building plans. The NOCs were obtained from Traffic Police, WASA & RDA and the site plan was accordingly approved but due to paucity of funds and financial hardships the building could not be raised. In the meanwhile the Municipal Corporation was merged in Tehsil Municipal Administration so the petitioners again completed the exercise of obtaining clearance and NOCs from various Government Departments and thereafter respondent No. 3 also issued NOC for approval of the plan by TMA in ter r orders of commercialization passed on 14.06.199o. . \ clearance certificate regarding no demand was also issued and the plan was approved by TMA on 11.06.2004.
The substantial portion of the building had been constructed at the site, when letter dated 09.07.2006 was received where- under a sum of Rs. 1,37,66,850/- was demanded as commercialization charges with the plea that . The Government had withdrawn order dated 27.04.1995. It is urged that the order dated 27.04.1995 was duly communicated and was acted upon in good faith so valuable rights were created in favour of the petitioners, which could have not been withdrawn unilaterally without affording an opportunity of showing cause or hearing. It is further contended that the building plan was approved on 14.06.2004 on issuance of NOC by respondent No. 3 and clearance certificate indicating that nothing was due from the petitioners.
According to them an amount of Rs. 26,81,875/- was utilized by the respondents for 10 years and they could have not withdrawn the sanction for commercialization of the building unilaterally and without notice so the impugned order and notice are illegal, without lawful authority and without jurisdiction.
3. The respondents contested the petition. It was urged that plot No. 62-A, Satellite Town, was allotted to Muhammad Afeal for residential purposes and was transferred in favour of the petitioners on 26.4.1975. The petitioners submitted an application to the Chief Minister, Punjab, for approval of commercialization of the plot and obtained approval at the rate of Rs. 300,000/- per Kanal in relaxation of the commercialization policy vide letter dated 4.5.1995. However, the Chief Minister withdrew this approval on 29.5.1995 but subsequently the same was conveyed vide letter dated 13.06.1995 and the petitioners accordingly deposited the commercialization fee. The allottee of plot No. 71-A filed writ petition to the effect that he be granted commercialization at the same rate on which it was granted to the owners of plots Nos. 60-A and 62-A. This writ petition was disposed of and the order passed in ICA was assailed before the Hon'ble Supreme Court of Pakistan and the Civil Petition is still pending. It was further stated that the Chief Minister withdrew the approval in favour of the allottees of plots Nos. 60-A and 62-A so they were directed to deposit an amount of Rs. 1,37i66,845/-each.
4. Learned counsel for the petitioners has contended that the commercialization was approved vide letter dated 14.06.1995 and thereafter the petitioners deposited a sum of Rs. 26,81,875/- according to the schedule given by the Government and thereafter also deposited a sum of Rs.
21,62,250/- as building fee and thereafter the site plan was approved so the letter dated 9.7.2005 is patently illegal as the approval could have not been withdrawn unilaterally. It is urged that the valuable rights had come into being in favour of the petitioners as the order was acted upon so the same could have not been withdrawn. In support of the contentions raised, reliance is placed on Pakistan, through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Raja Muhammad Nawaz v. Government of the Punjab (1981 SCM R 523), Messrs Army Welfare Sugar Mills Ltd., and others v. Federation of Pakistan and others (1992 SCM R 1652) and Pakistan International Airlines Corporation through Chairman v. Inayat Rasool (2003 SCM R 1128).
5. On the other hand, learned AAG has contended that the Chief Minister on a summary had withdrawn the permission and directed that the matter be disposed of as per Rules/Policy, It is also contended that an authority, which has the power to pass an order can, amend, vary or rescind the same under Section 20 of the General Clauses Act, 1956 so the order does not suffer from any illegality or infirmity.
6. The minute perusal of the record vividly reveals that the Department itself asked the petitioners to deposit a sum of Rs. 26,81,875/- and informed that NOC for commercialization would be issued on deposit of the first instalment. This amount of Rs. 26,81,875/- was deposited as is clear from the photostat copies of the Challan forms and the certificate (Annexure-C) appended with letter dated 16.12.2003 wherein the permission for commercialization in relaxation of the policy was reiterated.
This letter was issued by the District Officer, Housing and Town Planning, Rawalpindi, to the Tehsil Officer (P&C) in pursuance of their letter dated 22 i 1.2003. In view of this aspect of the matter, the impugned letter dated 9.7.2005 loses its legal foundation because the same was admittedly issued without notice and affording an opportunity of hearing. The Government has been using a sum of Rs. 26,81,875/- for a period of 9/10 years and as such could have not unilaterally raised the demand. Even otherwise the demand could have been raised on the basis of the rate prescribed in 1995. However, there is another important aspect of the matter. The Chief Minister of the Punjab after allowing the relaxation in the commercialization policy withdrew the same and passed order dated 25.6.1995 to the effect that the matter of commercialization of house No. 62-A alongwith other properties be decided as per Rules and Policy. This order was withheld and was not conveyed to the petitioners and suddenly the impugned letter was issued. No minutes of the meeting of the Committee are put-forth. In fact the Commercialization Policy did not admit relaxation and no order in this regard could have been passed. The relaxation policy had opened gateway of nepotism, favouritism and corruption. The Government functionaries should have immediately acted upon the subsequent letter and decided the matter as per Rules but they ignored the same and issued letter dated 16.12.2003, wherein the withdrawal of the relaxation was again concealed and approval was reiterated alongwith the No Demand Certificate. After this letter the impugned letter dated 09.07.2005 could have not been issued without affording an opportunity of hearing to the petitioners, which admittedly has not been extended. The demand made for payment of Rs.
1,37,66,845/- on the basis of rates of 2005 could have not lawfully been made and the proper course was that after affording the opportunity of hearing, the commercialization fee should have been assessed according to the rules prescribed for the year 1995. The sum of Rs. 26,81,875/- with mark-up at the Bank rate should have been deducted from the fee so assessed and the notice should have been issued for the deposit of the remaining amount only. The contention of the learned counsel for the petitioners that the order was acted upon so under the rule of locus poenitentiae could have not been withdrawn is without force because a void and without jurisdiction order does not operate to create any right and even if acted upon can be rescinded.
The commercialization policy does not admit the relaxation. The relaxation gives a chance of malpractices and deprives the other owners of the vicinity, making the same requests, of their right of equal treatment as guaranteed under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. No lawful excuse is available to charge full commercialization fee from one group of citizens and receive nominal or less amount from the other in the name of relaxation. This Court while exercising its Constitutional jurisdiction under Article 199 of the Constitution1 of Islamic Republic of Pakistan, 1973 cannot ignore such patently illegal acts. The persons, who have obtained property worth billions should .Pay the commercialization charges and other taxes like other citizens.
7. For the reasons supra, the impugned notice and demand are not sustainable. The writ petition is accepted and the impugned letter dated 09.07.2005 is declared illegal, without lawful authority and jurisdiction. The respondents are directed to afford an opportunity of hearing to the petitioners, assess the commercialization fee according to the rates of 1995, deduct the sum of Rs. 26,81,875/- alongwith mark-up at the Bank rate and then given then sufficient time to deposit the remaining amount.