' IBAD-UR-REHMAN LODHI, J.---The action by the respondents, whereby, the Guest House of the petitioner, on a land measuring 2-kanals, and 4-marlas, situated at Mauza Charhan, Tehsil Murree, under the name of 'Valley View Guest House' near the Chair Lift New Murree, was sealed on 14-9- 2013, has been challenged through this writ petition, and the respondents were issued notices and, particularly, the Administrator, TMA Murree (respondent No,1) was ordered to appear in person alongwith complete record showing justification of sealing of the premises of the Guest House, noted herein-above.
2. Town Officer (Regulation) from Tehsil Municipal Administration, Murree, appeared along with record with an explanation that the Administrator, TMA Murree/Assistant Commissioner, Sub- Division, Murree, is on a during service course at Lahore. The learned Legal Advisor, as also the Officer appearing on behalf of the respondents have reiterated their version on account of the insanitation of seepage and disposal of the water from the sewerage line of the petitioner's Guest House and justified the sealing of petitioner's Guest House.
3. According to the respondents, initially, notices were issued on 16-8-2013 and 20-8-2013, requiring the petitioner to rectify such offending acts; otherwise, there was a threat of punitive action, particularly, in view of Eighth Schedule read with section 141 (Sr.Nos.10 and 22) of the Punjab Local Government Ordinance, 2001.
4. The learned Legal Advisor representing the respondents has argued first with reference to Section 72 of the Punjab Local Government Ordinance, 2001, which reads as under:- "Insanitary buildings and lands.---(1) The concerned local government may, by notice, require the owners or occupier of any building or land which is in insanitary or unwholesome state:-
(a) to clean or otherwise put in it in a proper state;
(b) to make arrangements to the satisfaction of the local government for its proper sanitation; and
(c) to limewash the building and to make such essential repairs as may be specified in the notice.
(2) If in the opinion of a local government any well, tank, reservoir, pool, depression, or excavation, or any bank or tree, is in a ruinous state or for want of sufficient repairs, protection or enclosure a nuisance or dangerous to persons passing by or dwelling or working in the neighbourhood, the concerned local government may by notice in writing, require the owner or part-owner or person claiming to be the owner or part-owner thereof or, failing any of them, the occupier thereof to remove the same, or may require him to repair, or to protect or enclose the same in such manner as it thinks necessary; and, if the danger is, in the opinion of the concerned local government imminent, it shall forthwith take such steps as it thinks necessary to avert the same". ' and tried to justify the action on the part of the respondents in sealing the Valley View Guest House.
5. Eighth Schedule (sic) provided under sections 141, 142, 143 and 145 of the Ordinance provide the punishment for different offences. From the notices, stated to have been issued by the respondents to the petitioner, it reveals that the respondents proceeded under Serial Nos.10 and 22 of Eighth Schedule. The offence noted against Serial No,10 of Eighth Schedule is to the effect that without the previous sanction of Tehsil Municipal Administration or, in a City District, the City District Government.- (i)-laying out a drain or altering any drain in a street or road; (ii)-connecting any house drain with a drain in a public street; (iii)-Drawing off, diverting or taking any water except with the permission required under this Ordinance, the maximum punishment provided for such offence is the imposition of fine of Rs,1,000. Similarly, the offence noted at serial No,22 of Eighth Schedule is watering cattle or animals, or bathing or washing at or near a well or other source of drinking water for the public, and the amount of fine to be imposed for such offence is Rs,500.
6. Before taking any action for the alleged offences, a notice as envisaged under Section 72 of the Ordinance (sic), requiring the owner or occupier of any building to proceed in view of the requirement raised by any Municipal Administration, is a sine qua non for initiation of any action.
Subsection (1) of Section 72 of the Ordinance (sic) deals with the situation of in sanitation or unwholesome state, requiring the owner or occupier of a building or land to clean or otherwise put in it in a proper state or to make arrangements to the satisfaction of the local government for its proper sanitation or to make such essential repairs, as specified in the notice. Initially, either in Section 72(1) of the Ordinance (sic) or with regard to the offences mentioned at serial Nos.10 and 22 of Eighth Schedule, sealing of the offending premises has nowhere been provided as a competent act, to be taken by any local government.
7. The learned Legal Advisor in order to justify the process of sealing, has placed much reliance on Section 72(2) of the Ordinance (sic), which ended with the words "it (local government) shall forthwith take such steps as it thinks necessary to avert the same", and the process of sealing has been termed as "such act" in view of the provisions of the Punjab Local Government Ordinance, 2001.
8. What has completely been ignored from subsection (2) of Section 72 of the Ordinance, is that the same deals with the situation, where in the opinion of a local government, any well, tank, reservoir, pool, depression or excavation, or any bank or tree, is in a ruinous state or for want of sufficient repairs, protection or enclosure a nuisance or dangerous to persons passing by. It is, thus, clear that the power of a Local Government to take any further necessary steps in order to avert the situation with which surroundings are affected, but such power has not been provided to a Local Government in view of subsection (1) of Section 72 of the Ordinance (sic) to take any necessary steps in case of failure on the part of the owner or occupier of a building to comply with the directions as noted in clauses (a) to (c) of Section 72(1) of the Ordinance (sic).
9. The learned Legal Advisor, during arguments, has placed on record copies of notices, stated to have been sent to the petitioner on 16-8-013 and 20-8-2013, requiring the petitioner to arrange remedial steps to avoid the seepage of sewerage water.
10. Both the learned Legal Advisor as also the Town Officer have failed to demonstrate as to in what manner service of the petitioner with regard to the notices issued was effected. The officer from the Municipal Authority has verbally answered that the notices were sent through Inspector of Town Municipal Administration. From nowhere it is borne out as to which Inspector of TMA, Murree was assigned such duty to effect the service upon the petitioner on the notices, stated to have been issued by TMA. Also there is no indication from the record produced by the respondents today as to whether such notices were duly served upon the petitioner or any other person acting on his behalf; receipt of such notices by the petitioner is not, at all, proved; thus, no validity can be attached to such notices. The action of sealing of the premises of Valley View Guest House is, thus, established to have been taken without first issuance of notices to the petitioner.
11. Even otherwise, as per the showing of the respondents, the petitioner was proceeded against in view of the offences mentioned at Serial Nos.10 and 22 of Eighth Schedule. Maximum punishment for both such offences is imposition of fine amounting to Rs,1000 and Rs,500, respectively. The sealing of the premises is nowhere provided either by way of punishment or by way of any remedial step in consequence of the alleged nuisance constituted allegedly by the owner or occupier of a building.
12. Action of sealing of the premises, prima facie, seems to be a result of business rivalry, as it is borne from the record that the action, under challenge, was initiated on the asking of Tourism Development Corporation Punjab (TDCP), which is maintaining their own Rest Houses, adjacent to the petitioner's Rest House.
13. From whatever angle the present case is analyzed, the action on the part of the respondents in sealing the premises of Valley View Guest House is an act, which is without lawful authority and of no legal effect. The same is declared as such by accepting this writ petition with a further direction to the respondents to de-seal the premises of petitioner's Valley View Guest House forthwith.