' By this single order, Writ Petition No, 6619 of 2015 and Writ Petition No 6779 of 2015 are being decided for a simple reason that the both arise from verbal orders passed by the respondents in a similar fashion, sealing the premises in question. In both the petitions, a prayer has been made to order- the respondents to de-seal the respective piemises.
2. In Writ Petition No, 6619 of 2015 instituted by Ali Murad Siddiquee, it has been maintained that he constructed Pace. And Pace Mall Center, situated at Bosan Road, Multan after obtaining 'No Objection Certificates' from various Government Departments, including the Environment Protection Department, the Land Acquisition Collector, Provincial Highways Department, the District Officer Roads, Highways Division, Multan, Chief Traffic Officer, Multan. In the same way, the petitioner got sanctioned its building plan by the High Level Design Committee of City District Government, Multan on 14.10.2010. It is further asserted by the petitioner that he observed all the By- Laws, Rules and Regulations and was never guilty of the contravention of any Rules framed by the Multan Development Authority, Multan (MDA).
3. It is the stance of Ali Murad Siddiquee, the petitioner that his Shopping Centre, Pace and Pace has been sealed by the Multan Development Authority in sheer violation of the law of the land and without affording him an opportunity of being heard. Allegedly, no order in writing was passed by the respondents before sealing the Plaza in question.
4. In Writ Petition No, 6779 of 2015, the stance of the petitioners is that they are lessees under Ali Murad Siddiquee, the Proprietor of Pace and Pace Mall. Center. It is the assertion of Pioneer Amusement (Pvt.) Ltd. That it is providing amusement services to the general public at Multan. It has established a Play Land under the name and style of Chunky Monkey on the premises leased out to it. On the other hand, Sulman Bashir, co-petitioner in W.P. No, 6779 of 2015 claims to be the sole Proprietor of Chase Up -a Superstore- that offers a wide range of quality goods and services under one roof. The aforesaid petitioners have made the complaint that the premises in their occupation have been sealed by the officials of the Multan Development Authority in utter violation of the principles of natural justice. They have not even been told as to the offences committed by them or the rules and regulations of which they have committed breach.
5. The comments were called for from the respondents in Writ Petition No, 6619 of 2015, while their Legal Advisor, Mr. Muhammad Amin Malik Advocate accepted notice on their behalf in Writ Petition No, 6779 of 2015. Since the respondents have filed detailed reply to the averments made in Writ Petition No, 6619 of 2015, there appears to be no need to call upon them to undertake this exercise afresh in respect of Writ Petition No, 6779 of 2015.
6. In their reply, the respondents raised the preliminary objection that the Writ Petition No, 6619 of 2015 was not maintainable in that a civil suit titled "Muhammad Imran vs. Multan Development Authority" is pending adjudication regarding the very same action taken by the respondents.
Furthermore, a contempt petition has also been filed before the learned Civil Judge, Multan against the respondents. On facts, they have controverted the pleas of the petitioner, adding that a number of notices were issued to him over a period of seven years, requiring him to observe the rules and regulations framed by the Multan Development Authority. He was repeatedly warned that a punitive action would be taken against him for not complying with the demands made in the notices. It has also been stated in the comments that the petitioner has constructed a huge building in contravention of the original building plan sanctioned by the Authorities, endangering the lives of the passersby and the persons living in the neighborhood. Another issue has been raised that Ali Murad Siddiquee was required to set aside space measuring 26' x 6' for the widening of the road. It is the claim of the respondents that this space is to be utilized for parking cars.
Otherwise, it would create a huge traffic problem.
7. In support of the petitions, the learned counsel for the petitioners have reiterated the contentions raised by them in the writ petitions. The pith and substance of their arguments is that before taking the punitive action of sealing the premises in question, it was incumbent upon the Multan Development Authority to first issue them notices in writing, specifying the infraction of law of which they are guilty. It has been stressed by them that the principles of natural justice are ingrained in our jurisprudence and that wherever an adverse action is to be taken against a person or his property or such an action seeks to impose a liability upon a person, he is to be first provided an opportunity of being heard. To fortify their submissions, they read out Section 39 of the Punjab Development Cities Act, 1976. Extensive reference was also made to the Lahore Development Authority Building and Zoning Regulations, 2007, which were claimed to have been adopted by the Multan Development Authority as well.
8. Malik Muhammad Tariq Rajwana Advocate, the learned counsel appearing for Pioneer Amusement (Pvt.) Ltd. In. Writ Petition No, 6779 of 2015 also relied upon the judgments reported as "Muhammad Saleem v. Province of Punjab through Administrator Town Municipal Administration, District Gujranwala and 2 others" (2014 CLC 1259), "Shafa Laboratories (PVT) Ltd. Through Chief Executive v. Lahore Development Authority, through Director-General, LDA Plaza and 3 others" (2004 MLD 1377), "Syed Mustafa Hussain v. District Coordination Officer, Multan and 3 others" (2013 CLC 1580) and "Muhammad Younus. v. Secretary, Ministry of Communications and others" (1993 SCMR 122) to prop up his arguments.
9. Conversely, Mr. Muhammad Amin Malik Advocate, the learned counsel for the respondents took the Court through the notices dated 6.7.2007, 12.7.2007 and the order dated 12.11.2014 passed by the Deputy Director (Town Planning), MDA, Multan, Respondent No, 2 to urge that despite repeated notices, Ali Murad Siddiquee did not take heed of the warning issued to him. He was required under those notices to demolish the illegal, constructions made by him. At the same time, his application relating to Parking Area adjacent to the Pace and Pace Shopping Center was rejected and he was asked to first respond to the Show-Cause Notice No, 1470/DD/TP. MDA dated 2.10.2014 and meet its requirements.
10. In order to buttress his arguments, he also made reference to Multan Development Authority Building and Zoning Regulations, 2007, which as stated above, are the ditto copy of Lahore Development Authority Building and Zoning Regulations, 2007. Much emphasis was laid by him on the power of the Multan Development Authority to seal the premises spelt out in Regulation 8.2.2. It was rhetorically asked by him what more was to be done by the Multan Development Authority to stop Ali Murad Siddiqui from continuing with the illegal constructions and for removing the structures raised by him in violation of the building plan approved by the High Level Design Committee of City Government, Multan on.14.10.2010.
11. I have heard the learned counsel for the parties at considerable length and perused the documents annexed to the writ petition as well as the comments furnished by the respondents, in addition to acquainting myself with the relevant provisions of law governing the action taken by the respondents in sealing Pace and Pace Shopping Mall.
12. It is not in dispute that the High Level Design Committee of City District Government Multan approved the building plan of Pace and Pace Shopping Mall Center on 14.10.2010. Annex R-8 annexed to the comments furnished by the respondents establishes this fact beyond a doubt. The aforesaid Committee concluded its deliberations in the following words: "The Committee hereafter unanimously cleared the plan with the observation that the MDA will approve the building plan after observing all codal and legal formalities and will ensure its implementation at site."
13. Now coming to the notices dated 6.7.2007 and 12.7.2007 issued by the Multan Development Authority (MDA) to Ali Murad Siddiqui under Section 39 of the Punjab Development of Cities Act, 1976, suffice it to say that Multan Development Authority cannot fall back upon them for a simple reason that at the time, building plan of Pace and Pace was yet to be approved. Secondly, the very fact that Multan Development Authority digl not follow through these notices and took no action against Ali Murad Siddiquee constitutes estopple against it. Thirdly, it was not particularized in those notices as to which structural works or the particular portions of the building were erected in contravention of the provisions of the Punjab Development of Cities Act, 1976. Likewise, the rejection of his application relating to Parking Area adjacent to Pace and Pace Shopping Center, Multan was not to lead to the automatic conclusion that the Shopping Center was going to be sealed. With utmost respect to the learned counsel for the respondents, these flimsy pretexts are of no avail to the respondents.
14. Since it is the stance of the respondents that Multan Development Authority Building and Zoning.
Regulations, 2007 authorized it to seal the premises of the delinquent petitioners; it is expedient to reproduce Regulation 8.2.2. Hereunder: "8.2.2 Power to Seal The Competent Authority after completing the codal formalities may seal the building or part thereof on any of the following grounds:
(a) If the building has become structurally dangerous;
(b) If the building in the process of illegal construction or has been illegally constructed;
(c) If adequate fire fighting arrangements have not been provided to the satisfaction of the fire- fighting department;
(d) If the electricity network has become dangerous; and
(e) If the facade of the building has deteriorated."
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15. From a bare perusal of the above-mentioned Regulation, it is obvious that before sealing a building or a part thereof, the Competent Authority is to first complete all the codal formalities. No doubt, the expression "Codal Formalities" has not been defined in the Multan Development Authority Building and Zoning Regulations, 2007, but it does not take a genius to comprehend its meaning. It simply means that the Competent Authority would observe each and every formality spelt out in the. Code/Law before embarking upon the punitive action of sealing the particular premises. In point of fact, nothing has been left at the discretion of the Competent Authority. If at all the competent authority is to seal the particular premises, it can do so on the grounds specified in the afore-quoted Regulation. In the instant case, an attempt was made to make the argument that due to structural changes brought about in the Pace and Pace Building Mall Centre, the building has become dangerous for the residents living nearby or the passersby. Supposing that the case of the respondents is predicated on this ground, they could have issued a fresh notice to the writ petitioners, specifying therein that given the fact that the building in question has become structurally dangerous, a punitive action was going to be taken to safeguard the lives of all concerned. I am not prepared to buy the argument that the clock was ticking and that there was no time left to go through the motions and spell out the reasons for their imminent action of sealing the premises. It is not the case of the respondents that God forbid, the war had broken out or the building was rocking due to an earthquake.
16. I am of the considered opinion that before taking the extreme, punitive action of sealing the premises, the person to be affected must be put on notice that if he failed to comply with the demands made in the notice in writing and if his answer was not found satisfactory, the Competent Authority would be, left with no option but to seal the premises. This would be quite in accord with the principles of natural justice. After the insertion of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973, "due process" has been guaranteed as a fundamental right. Even otherwise, under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is the inalienable right of every citizen to be treated in accordance with the law.
17. It has been the consistent view of the superior Courts that principles of natural justice are to be read in every Statute, unless they are excluded by an express provision therein. In this behalf, reference may well be made to the Judgments reported as "Commissioner of Income-Tax, East Pakistan v. Fazlur Rahman" (PLD 1964 SC 410), "The University of Dacca through its Vice Chancellor, The Registrar, University of Dacca v. Zakir Ahmed" (PLD 1965 S.C.90), "Messrs East-End Exports, Karachi ,v. The Chief Controller of Imports and Exports, Rawalpindi", "The Assistant Controller of Imports and Exports, Karachi" (PLD 1965 SC 605), "Abdus Saboor Khan v. Karachi University", "Controller of Examinations, Karachi University" (PLD 1966 SC 536), "Collector, Sahiwal and 2 others v.
Muhammad Akhtar" (1971 SCMR 681), "Asghari Begum v. Additional Settlement Commissioner (Industries) Lahore and 2 others" (PLD 1977 S.C. 147), "Fateh Muhammad v. Mushtaq Ahmad and 9 others" (1981 SCMR 1061), "Bashir and others v. Member, Board of Revenue, Punjab and others" (PLD 2004 S.C. 411), "Pakistan and others v. Public at Large and others" (PLD 1987 S.C.304), "Secretary to the Government of Pakistan Ministry of Finance and others v. Muhammad Hussain Shah and others" (2005 SCMR 675), "Faqir Ullah v. Khalil-uz-Zaman and others" (1999 SCMR 2203), "Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Sheikh Abdul Aziz"
(1998 SCMR 91), "Union of India and another v. W. N. Chadha" (1993 SCMR 285 ), "Rees and others v.
Crane" (1994 SCMR 1682), "Makerwal Collieries Ltd. And 2 others v. Government of N.-W.F.P. And 11 others" (1993 SCMR 1140), "Sultan Muhammad and others v. Chairman, Federal Land Commission Islamabad and others" (1990 SCMR1364), "Pir Sarfraz Ahmad v. Government of Pakistan through the Secretary, Home Department, Lahore and 2 others" (1971 SCMR 557), "Mullah Syed Ali v. Mullah Asmi"
(1985 SCMR 1516) and "The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others" (1987 SCMR 1189).
18. In order to bring the point home it would be useful to reproduce an excerpt from the judgment of "The University of Dacca through its Vice-Chancellor, The Registrar, University of Dacca v. Zakir Ahmed" (PLD 1965 S.C. 90), which reads as under: "This Court has already had occasion to point out in at least three cases, namely, in the cases of "The Chief Commissioner, Karachi v. Mrs. Dina Sohirab Katrak" (PLD 1959 S.C. (Pak.) 45), "Faridsons Limited v. Government of Pakistan" (PLD 1961 S.C. 537) and "Abdur Rahman v. Collector and Deputy Commissioner, Bahawalnagar and others" (PLD 1964 S.C. 461) that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned." This rule applies even though there may be no positive words in the Statute or legal document; whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness."
19. In the case of "Pakistan and others v. Public at Large and others" (PLD 1987 S.C. 304) it was held that: "One of the above-cited cases is within the administrative justice and the other in the criminal justice. It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and or deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity. This by itself has to be recognised as a basic right."
' At another place, it was observed that: "Next instance is that of Iblees. He was scolded for having misled Hzt. Adam (P.B.U.H.) into disobedience of Allah's Command. Although, it had all happened in the presence of the Judge (Almighty Allah), the accused (Iblees) and Hzt. Adam (P.B.U.H.); and, may be, upon the now prevailing judicial norms, it could be said that there was no need for an inquiry yet Allah Almighty called upon Iblees to explain his conduct. It was after hearing the explanation from him which was not found tenable, that he was condemned and punished for all times to come."
20. In the case of "Hazara (Hill Tract) Improvement Trust through Chairman and others versus Mst.
Qaisra Elahi and others" (2005 SCMR 678), it was observed that: "We have heard learned counsel for the parties and gone through the impugned judgment as well as available record carefully. The principle of natural justice enshrined in the maxim "audi alteram partem" is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Reference in this behalf may be made to the case of "Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others" (2001 SCMR 934). In this judgment it has been held that where adverse action is contemplated to be taken against the person/persons, he/they has/have a right to defend such action, notwithstanding the fact that the Statute governing their rights does not contain provision of the principle of natural justice and even in absence thereof it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principle of natural justice is now made inbuilt part of civil contracts like the one under discussion. This principle originates from Islamic System of Justice as evident from historical episode when "Iblees was scolded for having misled Hazrat Adam (P.B.U.H.) into disobedience of Allah's command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him which was found untenable, he was condemned and punished for all times to come". Thus, it is held that the principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law."
21. As is evident from the afore-quoted case law, even the satan was provided with an opportunity to be heard before his being condemned by Allah Almighty. As stated above, the observance of '
"Due Process" for the determination of the civil rights and imposing of obligations has been recognized as one of the fundamental rights. The expression "Due Process" occurring in Article 10-A of Islamic Republic of Pakistan, 1973, has come up for consideration before the Supreme Court of Pakistan in a string of cases. Suffice it to make reference to the judgments reported as "Muhammad Nadeem Arif and others v. Inspector-General of Police, Punjab, Lahore and others"
(2011 SCMR 408) and "Sarfraz Saleem v. Federation of Pakistan and others" (PLD 2014 S.C. 232).
22. Since MDA has itself framed Multan Development Authority Building and Zoning Regulations, 2007 and spelt out a procedure to be followed by it, it cannot be allowed to make a departure therefrom. It is well-established law that when law specifies a thing to be done in a particular manner, it must be done in that manner or not at all. All other methods to do it would necessarily be forbidden. In this regard, it would be advantageous to make reference to the case law reported as "Khyber Tractors (Pvt.) Ltd. Through Manager v. Pakistan 'through Ministry of Finance, Revenue and Economic Affairs, Islamabad" (PLD 2005 S.C. 842), "Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others" (PLD 1971 S.C. 61), "Jamshaid Ali and 2 others v.
Ghulam Hassan" (1995 CLC 957), "Salahuddin and 7 others v. Bibi Zubaida and 9 others" (1994 MLD 2464), "Messrs Muhammad Ali and Brothers and another v. Director-General, L.D.A. And 3 others"
(2005 MLD 768), "Qamar Javed v. Gul Jahan" (2005 MLD 1329), "Haji Ch. Masood Akhtar v. Election Commission of Pakistan through Chief Election Commissioner and 7 others" (2005 CLC 172), "Haji Khuda Bukhsh and 9 others v. Deputy Registrar, Cooperative Societies,''Punjab, Lahore and 2 others"
(PLD 2007 Lahore 341), "Mehreen Zaidi v. University of Health Sciences, Lahore through Vice- Chancellor and 5 others" (2005 CLC 1787), "Muhammad Rafiq v. The State" (2005 YLR 3247), "Tariq Khan v. Station House Officer and 3 others" (2005 YLR 1041), "Taj Wali and 6 others v. The State" (PLD 2005 Karachi 128), "Raja Hamayun Sarfraz Khan and others v. Noor Muhammad" (2007 SCMR 307), "Muhammad Akram. v. Mst. Zainab Bibi" (2007 SCMR 1086).
23. As for the case of petitioners in Writ Petition No, 6779 of 2015, it has not been alleged against them that they have done anything either contrary to the law or that they have violated any bylaws or regulations framed by the Multan Development Authority. They are lessees under Ali Murad Siddiquee, the owner of Pace and Pace Shopping Mall. They appear to have invested huge money.
Under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, they have got every right to enter upon a lawful business. The sealing of the premises have virtually restrained them from carrying on their respective businesses, depriving them of the right to earn their livelihood.
24. For what has been stated above, the action of the respondents to seal Pace and Pace Shopping Mall Center, situated at Bosan Road, Multan is declared illegal, void ab initio and without lawful authority. Consequently, both the writ petitions are allowed, and the respondents are directed to de-seal Pace and Pace Shopping Mall Centre and all the shops and buildings attached with it forthwith, without any loss of time.
25. Both the writ petitions are allowed in the above terms.