' NASIR SAEED SHEIKH, J.- The appellant Noor ul Hassan Khan has preferred the instant. Intra-Court Appeal against the judgment dated 7-12-2010 passed by a learned single Judge of this Court dismissing the Writ Petition No, 12437 of 2010 instituted by the appellant.
2. Briefly stating the facts of the case are that the' appellant applied for a plot in a housing scheme known as Jubilee, Town Housing Scheme, Lahore floated by the respondents and vide allotment letter dated 7-4-1998 a Plot bearing No,000054 measuring 10 marlas in the said housing scheme was allotted to the appellant by the respondent in Block-D. In the year 2001 vide letter dated 9-6- 2001 by the Estate Officer LDA Lahore/respondent possession of the plot was handed over to the appellant. It was also observed that an extra area measuring 1 maria, 101 sq.Ft, was detected on survey as a part of the plot of the appellant. After about twelve years of his allotment and nine years of the delivery cjf the possession the respondents issued a demand notice dated 5-10-2010 calling upon the appellant to pay a sum of Rs,.l52,133/-as the price for the extra area of 1 maria, 101 sq.Ft, at the rate of land prevailing in the year 2010.
3. The appellant instituted a Writ Petition No, 12437 of 2010 to assail this demand letter dated 6-10- 2010 issued by the respondents. This writ petition came up for hearing before a learned single Judge of this Court. The respondents contested the writ petition. Parawise comments were submitted by the respondents and a plea was taken that as per policy notified by the respondents on 28-5-2001 the price of excess area up to 3 marlas is determinable @ 40% above the D.Cs. Rate of current evaluation table. Thus the respondents justified their demand of the amount as raised by them from the appellant. It was further contended that in the allotment letter dated 7-4-1998 price fixed at the time of the allotment of the plot was- described as provisional therefore the respondents were competent and entitled to claim the price of the excess area of the plot at the current rate as laid down in the policy of the respondents notified in the year 2001.
4. The learned single Judge of this Court through the judgment dated 7-12-2010 dismissed the writ petition of the appellant, hence this Intra-Court Appeal.
5. It is contended by the learned counsel for the appellant that the allotment of the plot was made in favour of the appellant through allotment letter dated 7-4-1998 and at that time the price of the plot was determined by the respondents the whole of which has been paid. The learned counsel further contended that if any extra land formed part of the plot of the appellant then the price on which the said extra land was to be charged by the respondents is the same which prevailed in the year 1998 at the time of original allotment and there is no law whereby the respondents could charge the price for the extra land in the year 2010 after about l2 years of the allotment at the escalated rate of property. It is further contended that the policy claimed by the respondent through the office order dated 28-5-2001 cannot be made applicable' to the cases in which the price was already determined and was recovered by the respondents a decade back. The learned counsel for the appellant further argued that even a policy which is contrary to law, fairplay, equity and justice cannot be enforced. The learned counsel contended that the learned single Judge of this Court simply relied upon the policy. Letter dated 28-5-2001 and dismissed the writ petition causing grave injustice to the appellant. The learned counsel contended that the policy decisions of a local body must satisfy the principles of justice, equity and fairplay and the policy introduced by the respondent dated 28-5-2001 is violative of the above concepts recognized by the superior courts and therefore the impugned judgment passed by the learned single Judge of this Court dismissing the Writ Petition No, 12437 of 2010 is liable to be set aside.
6. The learned counsel for the appellant contends that the appellant is ready to pay the price of the extra land of 1 maria, 101 sq.Ft, in accordance with and proportionate to the original price determined in the year 1998 for the main plot of the appellant.
7. The learned counsel representing the' respondents has however contended that the demand raised by the respondents/LDA is in accordance . With the policy which was enforced through letter dated 28-5-2001 and the demand notice was issued to the appellant after the said policy decision and therefore the appellant is liable to pay the price 40% above the current price as notified by the Deputy Commissioner as prevailing in the area and the judgment passed by the learned single Judge of this Court is perfectly in accordance with law and needs no interference. The instant Intra-Court Appeal is therefore prayed for to be dismissed.
8. We have considered the arguments of the learned counsel for the parties.
9. The appellant was admittedly allotted plot measuring 10 marlas vide allotment letter dated 7-4- 1998 for a total price of Rs,300,000/- which price was to be paid in four instalments. And the process of payment of price was completed on 31-3-1999 as is reflected in the letter dated 7-4- 1998. There is no right 'reserved for the LDA/respondents to demand or to raise the price of the plot at any subsequent stage in any eventuality. The extra area measuring one marla, 101 sq.Ft. Was also demarcated, measured and confirmed in the name of the appellant in the year 2001 by the respondents. It is pointed out that the construction has also been raised by the appellant over the plot in question after getting the building plan sanctioned from the respondents/LDA. After about 12 years of the allotment of the plot to the appellant by the respondents and nine years of the delivery of possession, the respondents have suddenly raised the demand for the price of the excess land of 1 marla, 101 sq.Ft. From the appellant at the rate 40% above the current market price as determined by the Deputy Commissioner. This act of the respondents which is based upon the policy letter notified on 28-5-2001 needs to be analysed and considered by this Court. A copy of the office order dated 28-5-2011 has been annexed by the respondents along with their parawisecommentsandthispolicy / officeorderisreproduced below:--- LAHORE DEVELOPMENT AUTHORITY OFFICE OF THE ADDITIONAL D.G.
DEM OFFICE ORDER In order to review the existing policy/procedure for assessment of excess area prices, a Committee comprising Addl. Director-General, Chief Metropolitan Planner, Director Finance, Director Estate Management, Director Land Development, Director Estate Management
(QAT) and Director Legal, LDA was formed by the Director-General, LDA. The Committee submitted its recommendations to the Director-General. In view of the recommendations of the Committee approved by the Director-General, the following directions are issued:--- (i)In future cases of assessm ent of price for excess area up to three marlas will not be sent to the Price Committee by the Director Land Development, Director Estate Management and Director Estate Management (QAT). The concerned Director will himself work out the above the D.Cs.
Current evaluation table. In cases of commercial and residential plots sold in auction during the last ten years; auction rates will be charged in respect of excess area up to three marlas by the concerned Director.
(iii)The cases not covered under paras (i) and (ii) above will be referred to the Price Assessment Committee which will be disposed of according to the existing procedure.
(iv)Validity period of rates fixed by the Price Assessment Committee will one year from the date of approval.
' This policy will take effect from the date of its approval by the Director-General i,e, 23-5-2001 and will not be applicable to the cases approved by the Committee before the said date. No past and closed transaction will be allowed to be reopened.
' It is further clarified that the above conditions are related to the assessment of price of excess area and should not be construed to legitimise the excess area cases which do not fulfil the conditions prescribed for grant of excess area.
(sd/-)
(NAJAM SAEED), ' ADDITIONAL DIRECTOR-GENERAL ' LAHORE DEVELOPMENT, AUTHORITY ' LAHORE ' A bare reading of the office order dated 28-5-2001 points out that this policy is meant to be applied for future cases of assessm ent of price. The allotment case of the appellant was finalized in the year 1998 and instant policy based upon office order, dated 28-5-2001 cannot be given any retrospective effect so as to adversely affect the rights and interests of the appellant. Even otherwise such a policy of a statutory institution or a local body which is unilateral, violative of the principles of natural justice and is contrary to the accepted norms of justice, fairplay and equity cannot be given protection by this Court. We have an advantage of referring to a celebrated judgment passed by the honourable Supreme Court of Pakistan reported as FECTO BELARUS TRACTOR LTD. v. GOVERNMENT OF PAKISTAN THROUGH FINANCE ECONOMIC AFFAIRS AND OTHERS (PLD 2005 SC 605) where the honourable Supreme Court of Pakistan after relying upon a judgment pronounced by the Supreme Court of India and reported as Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536) wherein the doctrine of unjust enrichment was elaborated and was disapproved even in the matters of the tax recovering processes.Thefollowing paragraph from the above noted judgment of the Supreme Court of India was reproduced by the honourable Supreme Court of Pakistan at page 636:--- "The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collected the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person.
The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched."
10. The alleged claim by the respondents is not a tax recoverable by the respondents/Lahore Development Authority. It was a price for. An excess land which formed part of the plot in the year 1998 when the allotment in the name of the appellant was made. Nothing prevented the respondents from the measurement of the plot at that time in the year 1998 and charge the price of the excess area at the spot in the year 1998. Had this process been undertaken by the respondent in the year 1998, the price chargeable for the excess area should not have been more than the price at the rate mentioned in the allotment letter. Merely because the respondents themselves delayed the process of measurement of the extra land forming part of the plot of the appellant and took twelve years in raising the demand that too after issuing an office order dated 28-5-2001 embodying a policy for assessing the prices of the future cases by the respondents does not clothe the respondents-Lahore Development Authority with any lawful authority to raise demand against the appellant for the recovery of price at 40% above the current rate determined by the Deputy Commissioner in the locality of the property. This act of the respondents is totally unjust, unfair and violative of the principles of equity and justice and amounts to applying the doctrine of unjust enrichment in favour of the respondents. No action of any statutory authority or a local body simply based upon a policy/office order can be justified with approval if in its very purpose, it purportedly defeats the well-known principles and norms touching the sphere of Rule of Law. Any order or action of such a public authority which thus glitters so colourful that the glimpses of arbitrariness cannot be shed away therefrom cannot be given protection by the Courts of law which are relentlessly functioning to administer justice only and solely, in accordance with the Constitution and the law. This Court cannot approve this course of action adopted by the respondents.
11. The learned single Judge of this Court while dismissing the writ petition of the appellant has made the following observations:- "Similarly the respondents are not bound to charge the same price for the excess area, which they recovered from the present petitioner for a plot of 10-marlas. As mentioned above, the price of the plot was provisional as evident from Allotment Letter dated 7-4-1998. In case, the petitioner is not interested in having the additional area of 1-maria and 101-sq.Ft., at a cost of Rs,1,52,133/-, he may not deposit the cost and surrender the excess area of the plot, which was allotted to him, vide letter dated 7-4-1998. However, the respondents/LDA cannot be forced to give excess land, measuring 1- marla and 101-sq.Ft,, to the petitioner at the cost, which was provisionally determined for the remaining 10-marlas in the year 1998. The respondents had notified a Policy Decision on 28-5-2001 for working out the price of the excess area of the allotted/exempted residential plots @ 40% above the D.C's current evaluation table. Hence, the demand of the respondents for deposit of Rs, 1,52,133/- from the petitioner in respect, of the excess area of 1-marla and 101-sq. Ft., is in accordance with the Policy Decision, notified on 5-2001, and the same cannot be declared illegal or without jurisdiction."
' This observation of the learned single Judge, with all humbleness and utmost respect at our command, cannot be approved to be fair in the peculiar circumstance of the instant case. Merely because the respondents mentioned in the allotment letter that the price then determined in the allotment letter dated 7-4-1998 is provisional cannot authorise the respondents to charge the price at the enhanced rate after twelve years for the excess area of 1 maria and 101 sq.Ft. It is to be noted that the provisionally of the ppce as mentioned in the original letter may have been argued with respect to the price of the plot allotted as measuring 10 marlas mentioned in the allotment letter but not in respect of the excess area measuring 1 maria and 101 sq.Ft. l2. In view of the above we have no hesitation to hold that the demand raised by the respondents from the appellant through the demand letter dated 27-5-2010 of Rs, 152,133/- for excess area of 1 maria and 101 sq.Ft. @ 40% above the current price of land is illegal, unjust, unfair and violative of principles of equity and justice and therefore not sustainable in the eye of law. The impugned judgment dated 5-12-2010 passed by the learned single Judge of this Court dismissing the Writ Petition Nq. 12437 of 20I0 is therefore set aside. The writ petition instituted by the appellant is directed to be accepted and the respondents are directed to charge the price from the appellant of the excess area measuring 1 maria and 101 sq.Ft, at the price proportionate to one on which the plot in question was allotted to the appellant in the year 1998 as mentioned in the allotment letter dated 7-4-1998. This Intra-Court Appeal therefore is allowed with no orders as to costs.