1. ABID AZIZ SHEIKH, J.--- Through this constitutional petition the petitioner has assailed the order dated 2-11-2013, whereby the shop of the petitioner was sealed by Enforcement Inspector, T.M.A Qila Didar Singh Town, District Gujranwala (respondent No.2).
2. 2.Brief facts of the case, as narrated in the petition are that vide registered Sale-deed No.9411 dated 14-3-2003 the petitioner purchased an old constructed Property bearing No.BXVI-15-155 measuring 12-152/272-marlas situated in Mohallah Noor Bawa Gali Shahzib Wakeel, Gujranwala. Soon after the purchase, the petitioner repaired the existing structure by replacing Wooden Gates with Iron Shutter etc. and since 2004 the petitioner and his brother are doing their business of Sanitary in the said shop. On 2-11-2013 the petitioner received the impugned order/notice under section 146-D (2)
(a) of the Punjab Local Government Ordinance, 2001 (Ordinance 2001), as amended in 2005 from the Enforcement Inspector/Building Qila Didar Singh Town, Gujranwala, whereby it is alleged that as per report the Building is being constructed without the approval of the TMA, therefore, it is dangerous and the petitioner was required to move application for approval of site plan.
3. Simultaneously in the same order/notice while exercising the power of section 146-D of the Ordinance 2001, the Building of the petitioner was also sealed.
4. 3.The learned counsel for the petitioner at the very out set argued that no notice or hearing was given to the petitioner before sealing of his shop/Building under section 146-D of the Ordinance, 2001. Submits that before taking such extreme measure of sealing of the shop and closing business of the petitioner, the respondents were bound to give hearing to the petitioner and was also required to ascertain whether at all the said shop was a danger to life in any manner, warranting sealing under section 146-D of the Ordinance 2001. Submits that the Rule of natural justice has to be read in every statute and violation of said Rule will render the decision nullity in the eye of law.
5. Reliance is placed on the cases reported as Shifa Laboratories (Pvt.) Limited through Chief Executive v. Lahore Development Authority through Director-General LDA Plaza and 3 others (2004 MLD 1377), M.D. The Bank of Punjab and others v. Syed Shahzad Hussain (2006 SCMR 1023), Mst.
6. Rehmat Bibi and others v. Punnu Khan and others (1986 SCMR 962). Further submits that the petitioner has not violated any Rule and he has already deposited the commercialization fee on 12- 1-2004, receipt of which is also appended with this petition. The fact that conversion fee is already paid and the petitioner is not at fault, as is evident from the facts that the earlier in F.I.R. No.103 dated 17-2-2007 lodged under section 141 of the Ordinance, 2001, vide order dated 24-11-2009 the petitioner was acquitted and the Enforcement Inspector while appearing before the learned Magistrate as P.W.-1 admitted that no new Building was being constructed but only renovation was taken place. The Town Nazim also admitted before the learned Magistrate that the petitioner has already deposited the fee of construction, therefore, TMA wants to withdraw its case. The learned counsel submits that after the withdrawal of the case and the order of the learned Magistrate on 24-11-2009 there was no occasion for the respondents to re-agitate the matter and harass the petitioner on behest of the private party. The learned counsel submits that this is not the first time that such harassm ent has been caused even earlier after acquittal order dated 24-11-2009. The Enforcement Inspector on 14-4-2011 issued a notice for demolition of the building, which was replied on 18-4-2011, however, despite reply, the shop of the petitioner was sealed on 7-6-2011. The petitioner being aggrieved earlier filed a Writ Petition No.14315 of 2011 challenging the said order and the respondents during pendency of the writ petition by admitting the contention of the petitioner de-sealed the shop and accordingly writ petition was withdrawn. Submits that notwithstanding the aforesaid background of the matter again the shop of the petitioner has been sealed vide impugned notice/order dated 2-11-2013 without even giving prior notice or hearing. The learned counsel contends that although the petitioner has already paid the conversion fee, however, if at all any irregularity in the alteration of building is found the petitioner is ready to pay the composition fee under Article 32 of the 6th Schedule of the Ordinance, 2001. Adds that the impugned notice/order whereby shop of the petitioner has been sealed is also in violation of petitioner's right of business and property as envisaged under Articles 4, 18 and 23 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance is placed on the case reported as Shifa Laboratories (Private) Limited through its Chief Executive v. Lahore Development Authority through its Director-General L.D.A Plaza, Lahore and 3 others (PLD 2004 Lahore 1274). Submits that the petitioner has no other alternative/efficacious remedy, as the appeal under section 190 of the Ordinance, 2001 is provided against a final order whereas in the present case only notice has been issued and petitioner's shop is sealed without any prior notice of sealing; that even otherwise the remedy of appeal is no bar in exercise of Constitutional jurisdiction of this Court, where the matter is of urgent nature and fundamental rights of the parties are being violated. Reliance is placed on the cases reported as Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another (2007 SCMR 1240), Messrs Ameer Khan and Co. v.
7. Government of the Punjab through Secretary, Local Government, Lahore (PLD 2010 Lahore 443), Muhammad Younus v. Secretary, Ministry of Communications and others (1993 SCMR 122), Messrs O.K. Agencies v. Chief Controller and others 2000 YLR 1867. The learned counsel adds that the entire area is already commercialized and therefore, sealing of the premises of the petitioner on the ground that it has been converted from residential to commercial is also discriminatory. Reliance in this regard is placed on the case of Zainab Garments (Private) Limited through Chief Executive and others v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and another (PLD 2010 Karachi 374). The learned counsel contends that action taken by the respondents, who are public functionaries, is not bona fide and the same is on the behest of the private parties, who are in litigation with the petitioner. Reliance is placed on the cases reported as Atta Muhammad v. Deputy District Officer (Revenue), Rohri, District Sukkur and 2 others (PLD 2003 Karachi 516) and Clifton and Defence Traders Welfare Association through General Secretary v.
8. President, Clifton Cantonment Board, Karachi and 4 others (PLD 2003 Karachi 495).
9. 5.Conversely the learned counsel for the respondents argued that the petitioner has an alternative remedy of appeal under section 190 read with section 128 of the Ordinance, 2001, read with the Punjab Local Government (Appeal) Rules, 2002, therefore, this writ petition is not maintainable.
10. Further submits that TMA is not impleaded as party, therefore, writ is not maintainable. Submits that the receipt of payment produced by the petitioner is regarding the approval of plan and not a commercialization fee, therefore, it cannot be said that the petitioner has lawfully changed the nature of property. Further contends that the petitioner has not come to this Court with clean hands and has violated various provisions of the Local Government Ordinance 2001 including Paras 24 to 39 of 6th Schedule and also failed to leave mandatory set back and converted residential building into commercial building and the title of the property is also disputed. Submits that in view of above, under section 146-D of the Ordinance, 2001, the Enforcement Inspector had lawful authority to seal the shop of the petitioner. Adds that there was no need for any fresh notice, as the petitioner was already aware of the irregularity committed by him in construction of building.
11. Submits that as the building is not in accordance with the rules, therefore, composition fee will not regularize the status of the building and the impugned order under section 146-D of the Ordinance 2001 is absolutely legal and valid.
12. 6.Mst. Atia Latif wife of Dr. Muhammad Latif also filed application C.M. No. 3475 of 2013 for being impleaded, as party in this writ petition. Although the application was contested by the petitioner by filing its reply, however, during the arguments, the learned counsel for the petitioner submitted that he has no objection if the said applicant is impleaded and be heard. Therefore, with the consent of the parties C.M. No.3475 of 2013 is allowed and Mst. Atia Latif is also being heard. The learned counsel for Mst. Atia Latif (newly-added respondent) submits that there is a civil litigation pending between her and the petitioner regarding the title of property for the last many years and the petitioner is in illegal occupation of the building. The learned counsel frankly concedes that it was on the application of Mst. Atia Latif in the year 2011 and finally in the year 2013 that the respondent authorities have passed the impugned order and the petitioner's premises was sealed.
13. Further contends that the impugned order is absolutely valid and therefore, the writ petition is liable to be dismissed.
14. 7.I have given my anxious consideration to the arguments of the learned counsel for the parties and have gone through the record, appended herewith.
15. 8.Through impugned order dated 2-11-2013 the building of the petitioner was sealed ender section 146-D of the Ordinance, 2001 (Ordinance). At this juncture, it is expedient to reproduce provisions of section 146-D of the Ordinance, 2001, which reads as under:--- "146-D. General Powers of Inspectors.--- (1) In case of any serious threat to the public health, safety or welfare or danger to life and property, the Inspector may, in his area of jurisdiction, in addition to imposition of fine or initiating prosecution under this Ordinance,--- (a)Suspend any work; (b)Seize the goods; (c)Seal the premises, (d)demolish or remove work; and (e)issue directions for taking corrective measures in the time specified by him: Provided that no Inspector shall enter any residential premises save with the permission of the occupier or owner or Court.
16. (2)An Inspector authorized under section 142 shall have the powers in relation to the offences specified in the Fourth Schedule to--- (a)issue notices in writing on behalf of the respective local government served, either personally or through registered post with acknowledgement due or by any official of the local government, in order to restrain violations or commission of any offence forthwith.
17. (b)initiate legal proceedings in the competent Court where any person fails to comply with the directions contained in the notice issued under clause (a); and (c)assist in defending any legal proceedings initiated against the local government."
18. 9.The perusal of section 146-D of the Ordinance, 2001 shows that though under section l46-D (1) (c ), the Inspector has the power to seal the premises, however, such power can only be exercised in case of any serious threat to the public health, safety, welfare or danger to life and property. The power of Inspector to seal the premises is not to be exercised automatically where the construction is against the approved building plan but the Inspector regardless of the legal status of premises, should be satisfied that the sealing of premises is necessary to avoid any serious threats to the public health, safety, welfare or danger to life and property. In view of the fact that this power encroaches upon right of property and right to carry lawful business which is a fundamental right of every citizen enshrined in Articles 4, 9, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973 the Inspector is not only required to exercise this discretionary power sparingly but also ensure after inquiry and notice to the parties that there is a serious threat to the public health, safety, welfare or danger to life and property, which warrant sealing the premises.
19. 10.In the present case, admittedly the petitioner is in possession of the building since 2003. Though the respondents are claiming that construction is unauthorized and the ownership of building is also disputed, however, it is not denied that disputed construction took place in the year 2004 and since then the petitioner is carrying on his business in the said shop/building. Admittedly no prior notice under section 146-D of the Ordinance, 2001 and hearing was given to the petitioner before sealing of his premises under section 146-D of the Ordinance ibid. The notices referred to in reply are of year 2004 and 2011, which are not under section 146-D of the Ordinance, 2001. Though the impugned order/notice dated 2-11-2013 mentions that there is some spot report, to the effect that construction has started now without permission of TMA, however, no such spot report is placed on the record of this file, nor the same is even referred to in the report and parawise comments filed by the respondents. Even the contents of the impugned notice is contrary to admit the stance of the respondents that construction took place in 2004, whereas according to impugned notice as per report construction has started now. This makes it clear/obvious that no latest inspection was actually carried out to ascertain whether premises are serious threat to public health, safety, welfare or danger to life and property before sealing the premises of the petitioner.
20. 11.No doubt the Inspector has the power under section 146-D of the Ordinance, 2001 to seal the premises but the said discretionary power is not unbridled. The respondent No.2 being public functionary while exercising his discretionary power has to act justly and fairly especially where fundamental rights of the citizens are involved. It is repeatedly held by the august Supreme Court of Pakistan that discretionary decision should be made according to rational reasons, otherwise the decision will be arbitrary and may be considered misuse of powers. The august Supreme Court in the case reported as Abid Hassan and others v. P.LA.C. and others (2005 PLC (C.S.) 1117) while dealing with the discretionary power held as under:--- "In his Treatise 'Discretion6ry Powers' which is Legal Study of Official Discretion D.J. Galligan has acknowledged that "the general principles that discretionary decisions should be made according to rational reasons means; (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in any intelligible and reasonable manner". According to the celebrated author, the actions which do not meet these threshold requirements are arbitrary and may be considered a misuse of powers. (Emphasis provided).
21. In Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance Islamabad and others PLD 1991 SC 1092 Shafi-ur-Rahman, J. who was sitting in the Full Bench has very ably propounded by now well-known doctrine of Structuring the discretion in the report at page 1147 "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Tax by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure (Emphasis provided). Somehow in our context the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the .first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times. Government of N.-W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804.
22. The judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.
23. The august Supreme Court also placed reliance on the cases reported as Aman Ullah Khan and others v. Federal Government of Pakistan PLD 1990 SC 1092, Chairman R.T.A. v. Pakistan Mutul Insurance Company PLD 991 SC 14, Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 238, Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Recourses 1995 MLD 15, Ramana v. I.A. Authority of India AIR 1979 SC 1628, Dwarka Nath Prasad Atal v. Ram Rati Devi AIR 1980 SC 1992, Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCMR 67."
24. 12.Besides aforesaid parameters laid down by the august Supreme Court of Pakistan, now after introduction of Article 10-A in the Constitution, fair trial and due process is a fundamental right of every citizen. The respondent No.2 before sealing of the building was required to follow the requirement of due process and rule of natural justice by giving hearing to the petitioner. The arguments of the learned counsel for the respondents that as the petitioner was already aware that construction was not approved, therefore, there was no need to give notice and hearing to the petitioner is not only misconceived but also strange as public authorities, who are acting on behalf of the State are supposed to act justly and fairly and protect the rights of the citizens.
25. 13.Although there is no specific provision of notice provided under section 146-D of the Ordinance, 2001 but it is un-imaginary that a running business and the building premises of a person can be sealed without any notice or hearing. It is settled law that where the statute effecting fundamental rights does not provide for hearing or notice, the principle of rule of natural justice requiring such notice or hearing is to be read into such statute. In this regard reliance is placed in the case reported as (1993 SCMR 122) Shifa Laboratories (Private) Limited through Chief Executive v. Lahore Development Authority through Director-General LDA, Plaza and 3 others (2004 MLD 1377) and 1986 SCMR 962, 2000 YLR 1867 and M.D. The Bank of Punjab and another v. Syed Shahzad Hussain (2006 SCMR 1032).
26. 14.Although the respondents are claiming that construction is without approval and conversion was also unauthorized and for this reason petitioner was served with notice dated 28-2-2004, 5-4- 2011 and 14-4-2011 under sections 195, 144 and 145 and section 54-A of the Ordinance, 2001, respectively, however, this fact is not denied by the respondent that on 24-11-2009 the petitioner was acquitted in the F.I.R. lodged in 2007, on the statement of Enforcement Inspector that no unauthorized building is being constructed but only alteration took place and the case has been withdrawn. It is also not denied that subsequent notice of sealing of building on 7-6-2011 was withdrawn after filing of Writ Petition No.14315 of 2011. Without touching further the merits of the case lest it may prejudice the case of either party before the other forums, the above facts itself proved that the petitioner at least had a defence and a point of view to present before the respondent- Authority if an opportunity of hearing was given to the petitioner before taking such drastic step of sealing of the petitioner business and building.
27. 15.Another aspect which further taint the impugned notice/order with illegality is that the learned counsel for Mst. Atia Latif himself admitted that litigation between the parties regarding the ownership of the property is pending before the Civil Court as well as Revenue Authorities and it is on her application that the respondents have taken action for sealing the premises of the petitioner. It is settled law that the public functionaries must act justly, fairly and indiscriminately and must desist scrupulously from all acts beyond their jurisdiction. In this behalf reliance is palace on the case reported as Atta Muhammad v. Deputy District Officer (Revenue), Rohri District Sukkur and 2 others (PLD 2003 Karachi 516), Clifton and Defence Traders Welfare Association through General Secretary v. President Clifton Cantonment Board, Karachi and 4 others (PLD 2003 Karachi 495).
28. 16.The arguments of the learned counsel for the respondents that as there is alternative remedy available therefore Constitutional petition is not maintainable is misconceived, the impugned order, whereby the building of the petitioner is sealed, is passed without any prior inquiry to determine whether there is any serious threat and danger to public life and property and secondly the impugned order being without any notice of sealing and hearing is violative of fundamental rights, and therefore without jurisdiction, and wholly without authority, hence, the constitutional petition is maintainable. In this regard reliance is placed on the cases reported as Sargodha Textile Mills Limited through General Manager v. Habib Bank Limited through Manager and another (2007 SCMR 1240), Messrs Ameer Khan & Co. v. Government of the Puniab through Secretary Local Government Lahore (PLD 2010 Lahore 443). Further it is settled law that mere fact that the alternative remedy of appeal is available to the parties does not bar the jurisdiction of this Court especially if the remedy is not adequate and efficacious. The Rule of alternative remedy is to regulate the constitutional jurisdiction and exception to the Rule is where the impugned order is patently illegal and without jurisdiction as in the present case where no notice for hearing was given by public functionaries to the petitioner before sealing of his business premises. In any case, the matter is still pending before respondent No.2 and has not been finally decided for filing of appeal under section 190 of the Ordinance, 2001. Further the argument of the respondent that as TMA has not impleaded as party, the writ is not maintainable is also unfounded, as the respondent No.2 who passed the impugned order has been impleaded as party. Further the Government of the Punjab, the Administrative and Tehsil Municipal Officer are also impleaded as party, therefore, the writ petition is not fit for non-joinder of parties.
29. 17.In view of the above discussion, the impugned notice/order dated 2-11-2013 to the extent of sealing the building of the petitioner under section 146-D is set aside being violative of rule of natural justice. The respondents however, may proceed in the matter after hearing the petitioner strictly in accordance with law.
30. 18.In view of the above discussion, this writ petition is allowed in the terms stipulated above.