'ANWAR ZAHEER JAMALI, J.---By this civil appeal on behalf of Lahore. Development Authority, with leave of the Court in termss-of the order dated 5-7-2012, judgment dated 6-10-2011 passed by the Lahore High Court,. Lahore, in I.C.A. No.15 of 20i0 (Re: LDA v. Bashir A. Malik) has been challenged by the appellant. Through this judgment, while dismissing the appeal of the appellant under section 3 of the Law Reforms Ordinance, 1972, the earlier judgment dated 14-12-2009, passed learned single Judge in chambers of the Lahore High Court, Lahore, in Writ Petition. No.19251 of 2009, granting requisite relief to the respondents, was maintained.
2.Briefly stated, the relevant facts forming background of this litigation are that on 2-10-2009, respondents Nos.1 to 2, filed a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the appellant, before the ahore High Court, with the following prayer:-- "... The impugned action of the respondent is declared to be illegal, unlawful, without jurisdiction and of no legal effect and it be declared that the petitioners are entitled to the granting of the Completion Certificate in respect of Plot No.6 Commercial, Allama Iqbal Town, Lahore subject to payment of Rs.33,992 as penalty. The respondent further be directed to issue the Completion Certificate on receipt of the said amount of Rs.33,992 as penalty."
3.The grievance of respondents, as unfolded in their memo of petition, was that after construction of building over their commercial plot No.6, Allama Iqbal Town, Lahore, as per approved building plans sanctioned on 4-5-1981, on 24-5-1983, they had applied/requested the appellant for grant of completion certificate in respect of construction carried out by them on the ground and the first floor of the building. For this purpose, survey of the building was conducted by the Inspector Survey from the appellant's office, who, keeping in view some minor violations, which were compoundable, calculated the penalty at Rs.33,992, which were respondents were liable and willing to pay, but on one or the other pretext, despite prolonged correspondence between the parties as detailed in paragraph 5 of the petition, and final decision at the highest level of Director-General L.D.A., their grievance was not redressed as the challan for payment of penalty was not issued, with the result that for the last 26 years, they were at the mercy of the appellant for the purpose of obtaining completion certificate of the building constructed by them.
4.This petition was contested by the appellant, who stated that indeed, the petitioner had applied for the completion certificate, but due to certain internal deviations made by them in the construction of building, they were required to submit revised building plans, which they failed and, thus, the matter regarding issuance of completion certificate could not be processed further. They, however, did not dispute the request of respondents for grant of completion certificate, survey of building carried out by their Inspector Survey, calculation of payable penalty in the sum of Rs.33,992 and the decision of Director General L.D.A, in favour of respondents.
5.The learned single Judge in the Lahore High Court, taking note of all these relevant and material aspects of the case, came to the conclusion that for all intent and purposes, the case of the respondents for issuance of completion certificate had attained finality in terms of the order passed by the Director General LDA, requiring the respondents to pay an amount of Rs.33,992. Thus, upon payment of such penalty, the completion certificate should be issued to them. The writ petition was accordingly allowed in these terms.
6. Aggrieved by this order, the appellant herein preferred ICA before the learned Division Bench of the Lahore High Court, which was dismissed vide impugned judgment dated 6-10-2011, with the observation that the minor deviations objected to by the appellant/LDA were admittedly compoundable by imposition of penalty and for this purpose decision was already taken at the highest level of Director General LDA, which was never withdrawn. In such circumstances, denial of challan to the respondents for payment of penalty was neither legally nor factually tenable. Thus, the judgment of the learned single Judge in favour of the respondents required no interference.
7. Mr. Ali Akbar Qureshi, learned Advocate Supreme Court for the appellant at the out set of his submissions did not dispute that the minor internal deviations in the construction of first floor and its change of use from flats to shops, as per report of the inspector survey of appellant were regularizable upon payment of penalty as the plot was commercial in nature. However, at the same time, he contended that unless a revised plan was submitted by the respondents for this purpose, such exercise could not have been undertaken by the officials of L.D.A. As regards payable sum of penalty, he again did not dispute that an amount of Rs.33,992 was calculated looking to the nature of regularizeable illegal internal violations in the construction, but according to him non- payment of this sum has vitiated earlier action and now the recoverable penalty is to be calculated afresh as per present rates and upon payment of such penalty and submission of revised plan the relief claimed by the respondents could be allowed.
8. Conversely, Khawaj a Saeed-uz-Zafar, learned Advocate Supreme Court for the respondents vehemently contended that the case in hand is a classic example of red-tapism and corruption in.
Government departments and the statutory bodies like LDA, as the respondents, for grant of legitimate relief of obtaining completion certificate upon payment of determined penalty, are running pillar to post for more than thirty years, but their grievance could not be redressed at the level of appellant and ultimately they had to approach the High Court for this purpose. He contended that the revised plan, as required by the appellant, was submitted to them (LDA) and it was on that basis and visit of survey inspector LDA that keeping in view the internal violations of minor nature an amount of Rs. 33,992 was calculated as payable penalty by the respondents, but for such payment, despite several applications and reminders till this date no challan has been issued to them. As regards the quantum of payable of penalty he contended that it is well settled law that such sum is to be calculated as per applicable rates on the date when the aggrieved party has approached the concerned department for this purpose and not at the whims of the department as per subsequent changed schedule of payment.
9. We have carefully considered the submissions of both the learned ASCs and perused the material placed on record before us. The only short controversy forming basis for this litigation, which is now pending for over thirty years is that in the year 1983 respondents had applied in the office of LDA for issuance of completion certificate, upon which survey was carried out by the concerned officer of LDA; on 11-1-1984 payable penalty in the sum of Rs.33,992 was calculated for the purpose of regularization of such violations, and in this regard final decision for issuance of completion certificate was given by the Director General LDA. However, the same did not materialize due to non-issuance of challan for payment of penalty to the respondents on one pretext or the other, with the result that the matter is still sub judice for over three decades. From the parawise comments submitted by the appellant before the High Court, it is evident that the deviation highlighted therein were of minor nature as the height of arcade was kept 9 feet, 6 inches instead of 10 feet; while the first story of the building, which was as per approved building plans meant for flats, was converted into shops and it was for this reason that penalty was calculated and imposed upon the respondents. It is an admitted position from the record that plot No.6 owned by respondents is commercial in character and situated in the commercial block of Allama Iqbal Town Scheme, Lahore, thus it can be lawfully utilized for construction of commercial building over it.
In such circumstances the construction of shops or conversion of residential flats over Ist floor into shops is not a change of use of the building in violation of building bye-laws, rules and regulations, but simply.Violation of construction plan, which, as conceded by the learned Advocate Supreme Court for the appellant, was compoundable. One fails to understand that when the survey of respondents building was carried out by officers of LDA in the year 1983, the payable sum of penalty was determined for this purpose on 11-1-1984; no other payment was due or ever asked for, and the Director General, LDA has also accorded approval for regularization of such violations of the approved building plan made by the respondents, then what was the hurdle in the way of issuance of challan to the respondents for payment of penalty, resulting in the filing of several miscellaneous applications by the respondents forthis purpose, as- detailed in paragraph No.5 of their petition and supported with the documents annexures D to K attached with the memo of petition before the High Court. Even during his submissions before us, learned Advocate Supreme Court for the appellant has not been able to convince us that there was any real or genuine reason, which justified the appellant authority to drag this petty issue at their level from the year 1983 till 2009, when finally a writ petition was filed by the respondents before the Lahore High Court as a last recourse.
10. The learned Single Judge in the Lahore High Court has discussed all these facts in his judgment in a lucid manner, for granting requisite relief to the respondents, upon payment of penalty, already determined by the appellant. But it is surprising that even by this judgment the appellants were not satisfied and instead of realizing their own mistake they unsuccessfully challenged it before the Lahore High Court through I.C.A and thereafter before this Court. In our opinion, the appellant has no valid reason for non-implementation of judgments of the two Courts below. Even in the memo of appeal, the appellants have not come out with any genuine objection against the respondents, which may justify their stance for non-issuance of challan for payment of penalty or the completion certificate. It can be reasonably concluded from the perusal of available record that it was at the instance of some powerful lower staff members of the appellant that respondents were made to suffer for three decades over a small issue and even today pretexts are being invented to drag the respondents into further litigation. In case, for the sake of arguments, the revised building plan, which the respondents claim to have submitted with the appellant was not traceable or available with them they could have called upon the respondents to submit the same afresh so as to complete the process of payment of penalty as already determined and issue the completion certificate, but it was not done for the reasons best known to the appellant which has caused serious damage to the credibility of LDA as an authority.
11. As regards the claim of the appellant for payment of penalty by the respondents as per present rates, again the submission of the learned Advocate Supreme Court for the appellant is misconceived and devoid of any legal force; firstly, for the reason that no such plea was ever raised by the appellants in their parawise comments to the petition filed before the Lahore High Court or even during the arguments before the learned single Judge or the learned Division Bench of the High Court. Moreover, both the Courts below in thier respective judgments have rightly held the appellant responsible for present litigation and consequent delay in finalization of the case of the respondents due to non-issuance of challan for payment of penalty. Admittedly, the respondents had approached the appellant for grant of completion certificate on 24-5-1983 and the payable sum of penalty was accordingly calculated by the staff appellant on 11-1-1984, but payment challan was withheld by the appellant for no valid reason and all these facts are manifest from the correspondence between the parties available at Pages 28 to 47 of the Court File. It is, thus, evident that it was due to the mischief of some staff members of the appellant that the respondents were made to suffer for so long for no fault on their part. In such circumstances, under the principles of equity and fair play, they cannot be burdened with any additional liability by calling, upon them for payment of penalty at the present rate. Rather, such loss to the appellant, if any, should be recovered from those members of their staff, who are found responsible for delaying this process for almost 30 years. This view of the matter on legal plane gains support from the following extract from the judgment passed by a learned Division Bench of the Lahore High Court in the case of Noor-ul-Hassan Khan v. Lahore Development Authority (2013 CLC 100), which reads thus:-- "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."
12. As a result of above discussion, this appeal, being devoid of merit, is dismissed.
'Sd/- 'Anwar Zaheer Jamali, 'J 'I have appended my separate dissenting note. Sd/- 'Ejaz Afzal Khan, J I agree with my learned brother Ijaz Afzal, J.
'Sd/- Ijaz Ahmed Chaudhry, 'EJAZ AFZAL KHAN, J.---I have gone through the judgment authored by my brother Mr. Justice, Anwar Zaheer Jamali. I, with all respect and reverence for my brother, do not find myself in agreement with the judgment for the reasons as follows:-- 'Respondents in this case averred certain facts in their writ petition and built up the edifice of their case on the premises that a survey was conducted by the building Inspector who calculated a sum of Rs.33,992 as penalty to be paid by the respondents. But the averments made by the respondents in paras 4 and 5 of their petition have been seriously disputed by the appellant in its comments. For the facility of reference Paras 4 and 5 of the comments are reproduced which read as under:-- "(4) Record indicate that after receiving the application from petitioner for issuance of Completion Certificate the lower staff inspected the site and workout penalty of Rs. 33,992 on 114-1984.
However, there exist certain objections due to which the penalty amount was not approved by the Competent Authority. Therefore, the petitioner cannot claim to deposit the said penalty.
(5) Not admitted. Neither the Competent Authority has approved any amount of penalty nor the petitioner has cleared any objections. Therefore, no question for issuance of demand notice/challan amounting to Rs.33,992 is arise."
'When the averments made by the respondents have been seriouslydisputed by the appellant in the paras reproduced above, the controversy thus emerging for the adjudication of the High Court was essentially factual in nature. Such controversy could have been decided only by a Court of plenary jurisdiction that too after recording evidence. Question of issuance of challan for deposit of the amount could not have been made a basis for interference in the Constitutional jurisdiction when the order imposing penalty was disputed to have been passed or approved by the competent authority. When according to the comments, such penalty was never imposed or approved by the competent authority, the matter could not have been decided on the basis of presumption without scanning the record and without giving the appellant a chance to substantiate its stance. I, therefore, allow this appeal, set aside the impugned judgments, treat the writ petition filed by the respondents as a suit before a Civil Court and send it to the learned Senior Civil Judge, Lahore for decision in accordance with law after evidence. The parties would not only be at liberty to amend their petition and comments so as to bring their format in conformity with the pleadings before the Court of plenary jurisdiction but would also be at liberty to raise all legal and factual objections available in the matrix of the case. As the matter old, it be decided within a period of six months.
'Sd/- 'Ejaz Afzal Khan, J.
ORDER OF THE BENCH 'By majority of two to one (Justice Anwar Zaheer Jamali dissenting), this appeal is allowed in terms of majority view. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.