Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has challenged the act of sealing the premises by respondents.
2. The report and parawise comments have been filed by the respondents. The learned counsel for the petitioner contends that the premises of the petitioner has been sealed by the respondents on the ground of non-payment of commercialization fee while exercising powers under Section 146-D of the Punjab Local Government Ordinance, 2001. Learned counsel contends that Section 146-D of the Ordinance does not empower the Inspector to seal the premises on the ground of nonpayment of the commercialization fee. It was further contended that notice by virtue of which premises were sealed under clause 8.2.2.(b) of the building Zoning Bye Laws, 2007 was never served on the petitioner nor was there any endorsement to that effect by the petitioner or by the tenant/employees in occupation of the premises, the exercise was surreptitious and on account of same flourishing business of 'Bundu Khan' restaurant has come to a grinding halt resulting into huge financial losses, moreover labour employed has become jobless.
3. Conversely, learned counsel for the respondents has argued that the Inspector (Commercialization) has rightly sealed the premises on the basis of non-payment of commercialization fee while exercising powers conferred upon him under Clause 8.2.2(b) of the Building Zoning Bye Laws, 2007 read with Section 141(1) of the Punjab Local Government Ordinance, 2001. It was further contended that constructed building was converted to commercial usage without seeking permission from the relevant authority.
4. I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.
5. Admittedly, the petitioner is owner of the property in question and the building plan was duly sanctioned vide Letter No, 413 dated 22.11.1993. Thereafter revised building plan was also approved on 14.6.1999 for Bar-B-Q. Subsequently the respondents issued various notices to the effect that the petitioner should get the site in dispute commercialized after payment of commercialization fee.
The petitioner apprehending that the respondents were not withdrawing notice' hereinabove mentioned instituted a civil suit for declaration and permanent injunction for restraining the respondents from interfering into the building and business being run. An injunctive order was issued by the trial Court which still holds the field. I am afraid that the stand taken by the respondents is not in accordance with law. Section 146-D of the Punjab Local Government Ordinance, 2001 and clause 8.2.2..(b) of the Building Zoning Bye Laws, 2001 read with Section 141(1) of the Punjab Local government Ordinance, 2001 does not empower the Inspector (Commercialization) to seal the premises due to non-payment of commercialization fee. Moreover clause 8.2.2(b) of the Building Zoning Bye Laws, 2001 binds the competent authority that only after completion of codal formalities, may seal building on the ground "if the building is in the process of illegal construction or has been illegally constructed". Be that as it may, the 'property in question was approved under the law prevalent in the year 1993, thereafter, its revised plan was also sanctioned on 14.6.1999 in accordance with law. Thus clause 8.2.2(b) ibid is not applicable. Statutes which create new liabilities in connection with the past transaction should not be given a retrospective operation. Reliance is placed on Abdul Karim us. State (PLD 1959 W.P. Lahore 883)
Furthermore when the lis is sub-judice before the trial Court and injunctive order is still operative, therefore, the impugned act of sealing of the premises of the petitioner by the respondents is malafide, illegal and without lawful authority. Reliance is placed on Collector of Customs, Customs House, Lahore and 3 others us. Messrs S.M. Ahmad & Company (Put.) Limited Islamabad (1999 SCM R 138) and Ghulam Abbas Niazi us. Federation of Pakistan and others (PLD 2009 SC 866). Resultantly, instant writ petition is allowed and the respondents are directed to de-seal the premises of the petitioner forthwith. Respondents are at liberty to initiate proceedings for recovery of commercialization fee from the petitioner in accordance with law. However, the trial Court shall decide the lis pending before it expeditiously.