AZIZ-UR-REHMAN, J.---By means of this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed on 27.09.2010, the Petitioner No,1 viz. 'Muhammad Hanif Khan son of Haji Noor Khan, who is also a sole proprietor of Petitioner No,2 through his duly authorized Attorney namely Mr. Muhammad Hanif son of Abdul Ghaffar has/have sought the following reliefs:-- i). Declare that the impugned letters of Respondent Nos.1 dated 7th April 2010, 25th May, 2010 and 9th September 2010 are illegal, have been issued without lawful authority and are of no legal effect or consequence and to set aside the same. Ii). Direct Respondent No,1 to accept the balance amount of outer development charges, being Rs, 435,600/- in respect of the said property at the rate of Rs,30 per square yard in accordance with its letter of no objection dated 4th April, 1998. iii) Restrain and prohibit the Respondents and / or their agents, officers, and subordinates, whether directly or indirectly, from interfering in any manner with the legal and lawful rights of the Petitioners in respect of the subject property.' iv). Restrain and prohibit the Respondents and / or their agents, officers, and subordinates, whether directly or indirectly, from cancelling the approval of the building plans granted to and obtained by the Petitioners in respect of the Raza City Centre Project, in pursuance of the issuance of the impugned letters, ' That in addition to above, it is respectfully prayed that in exercise of its jurisdiction and powers under Article 199 of the Constitution, this Hon'ble Court be pleased to pass such further orders as it may deem fit, proper, appropriate, just and equitable so as to do complete justice in the us.
Vi). Costs of the Petition.
2. Briefly the relevant facts in the background are as follows:--
3. The Petitioner No,1, per assertion, is the owner of all the piece and parcel of land bearing Survey Nos. 160, 161, 162 and 163 admeasuring 6-00 acres in Deh Khanto, National Highway, District Malir (now Bin Qasim Town), Kara-chi [hereinafter referred to as the said property] and is also in possession of the said property. Mr. Muhammad Hanif son of Abdul Ghaffar per averments, is duly authorized attorney of the Petitioner No,1 to sign, verify, institute and prosecute this petition, as such, he is fully conversant with the facts of the case. The 'said property', it appears, was initially leased out to one Abdul Rasheed who upon payment of valuable consideration by Petitioner No,1, a General Power of Attorney bearing registration number 1047 was executed in favour of Petitioner No,1 in the year, 1998.
4. Accordingly, on 26th June, 1998, the Petitioner No,1 moved an application to Respondent No,1 viz. Malir Development Authority [In short MDA] for an approval of a 'layout plan of the said property. In response, on 4th August, 1998, the Additional Director (Town Planning) of Respondent No,1, wrote a letter to Petitioner No,1 whereby, the Additional Director [Town Planning], was pleased to issue an NOC for the approval of the 'layout plan however, subject to certain 'terms' and 'conditions'. Per Condition [x], the 'layout plan' for the said property was to be approved by Respondent No,1 only upon payment of 50% 'Outer Development Charges' [In short ODC] @ Rs,30 per square yard [tentative] and the 50% was to be charged after a period of 'Six months'. The Petitioner No,1 while, complying with the 'terms' and 'conditions', of letter No,MDA/MPD/SLT203/97/373 dated 4th August 1998 of MDA, paid an amount of Rs,435,600/- to Respondent No,1 as being 50% of the total amount of 'Outer Development Charges' at the rate of Rs,30 per square yard through challan No,37 dated 4th August, 1998.
5. Later on, by virtue of Section 3 of the Sindh Government Lands [Cancellation of Allotments, Conversions and Exchanges] Ordinance, 2000 [In short 'Ordinance III of 2001'], the Petitioner No,1 was informed that the 'said property' has cancelled, however, subject to payment of 'differential amount' being claimed by the Land Utilization Department Government of Sindh. Under the Land Utilization Department Government of Sindh's Letter No,02-65-02-DS-1/1499 dated 13.10.2004, addressed to the Executive District Officer [Revenue] of Respondent No,2, the payment of 'differential amount' demanded by the Land Utilization Department Government of Sindh from the Petitioners was also acknowledged. Accordingly, in pursuance of Section 5 of Ordinance III of 2001, the said property' thus besides stood regularized/restored, absolutely free from the ban imposed by the Government of Sindh.
6. By virtue of a Registered Indenture of Lease bearing No,3501 dated 1st December, 2004 [Annexure 'A-4' to the MoP] and a Registered Deed of Relinquishment bearing No,4321 dated 3rd October, 2005 [Annexure 'A-5' to the MoP], the Petitioner No,1 became the absolute owner, of the 'said property' with 'possession'. The Petitioners thus commenced a 'building project' under the name of 'Raza City Centre' on the 'said property' and consequently incurred heavy expenditures regarding developing and constructing the 'said property' as well as on obtaining necessary 'permissions' and 'approvals' from Respondents Nos.1 and No,3 and all other concerned authorities. A revised 'No Objection Certificate' for the 'sale' and 'advertisement' of 'flats' and 'shops' of the Petitioners' project' viz. 'Raza City Centre' was also granted by Respondent No,3 on 151 April, 2009 i,e, ground [shops, flats, parking and area] plus 'four [4] upper floors' [for the purposes of flats only]. The target date for completion of the subject project is/was 31st May, 2012. Per assertions, the Petitioners have effectively launched project, which is a 'residential'/'commercial project. Moreover, the Petitioners apart from other expenses, have also spent a huge amount on advertising of the project and as a result thereof 254 bookings have already been made.
7. The Petitioners, nevertheless, were astonished and shocked upon receipt of a letter dated 7th April, 2010 whereby, the Deputy Director Incharge [ODC Cell] of Respondent No,1, demanded an amount of Rs .5,953,200/- towards' the 'Outer Development Charges' for the said property within a period of 7 days otherwise, cancellation of the 'Lay Out Plan' dated 4th August, 1998 was threatened. On 13th April, 2010, the petitioner No,2 under the aforesaid scenario, wrote a letter to Respondent No,1 regarding the highly exorbitant amount in the sum of Rs,5,953,200/- having been illegally and unlawfully demanded, by pin-pointing that as per 'clauses 3-3.
5.4' of the 'Karachi Building and Town Planning Regulations, 2002' [In short 'KBTPR'], the amount so demanded is not payable as in the case in hand 50% 'Outer Development Charges' have already been paid. No 'new' or 'revised' imaginary, illegal and unlawful rate except Rs,30 per square yard is applicable. The unlawful demand of Respondent No,1 was thus rejected outright by Petitioner No,2.
The Petitioners also called upon the Respondent No,1 to withdraw its' illegal notice dated 7th April 2010. Nevertheless, on 2th May, 2010 again Respondent No,1 in its' own wisdom issued notice to Petitioner No,2 whereby, the same illegal and exorbitant amount i,e, Rs,5,953,200/- was demanded towards' the 'Outer Development Charges' for the said property within 14 days failing which Respondent No,1 expressly threatened for cancelling, the 'Layout Plan' dated 4th August, 1998. In response, the Petitioner No,2 again wrote a letter to Respondent No,1 and called upon it to withdraw the illegal notice dated 25th May, 2010, failing which the Petitioner[s] would be constrained to invoke the constitutional jurisdiction of this Hon'ble Court for redressal of its' grievance viz-a-viz the illegal demand of Respondents.
8. According to the Petitioners stand all the letters of Respondent No,1 dated 7th April, 2010, 25th May, 2010 and 9th September, 2010 [hereinafter referred to as 'the impugned letters] beside, illegal unlawful, mala fide, are tainted with 'ulterior motives'. Per Petitioners' version they are at a loss to understand the illegal demand in the sum of Rs,5,593,200/- as per NOC dated 4th April, 1998, the 'Outer Development Charges' for the 'said property' is @ Rs,30 per square yard only. Moreover, Clauses 3-3.
5.4 of the KBTPR clearly mentions that the 'Outer Development Charges' payable shall be based on the old rate as in the case in hand the Petitioner No,1 has already/admittedly paid 50% of the 'Outer Development Charges' to Respondent No,1 in the year, 1998. Not only this, per Petitioners' version, by virtue of a 'Notification' dated August 4th, 2006 also old rates of 'Outer Development Charges'
[ODC] applicable in all those cases where 50% or more ODC' s amount has been paid as the case in hand is.
9. Upon filing of the above Constitution Petition when the above petition, came-up before this Court on 28.09.2010, then while, issuing notice to Respondents, the cancellation of the 'layout plan' was also suspended. Order dated 28.09.2010 reads as follows:--
1. Urgency application is granted.
2. Deferred.
3. Exemption is granted subject to all just exceptions. It is, inter-alia contended that approval of the layout plan for the land ad measuring 6-00 acres which was regularized under the Ordinance III of 2001 was approved on 04.08.1998. It is contended that in terms of clause 10 thereof the layout plan was approved on payment of 50% outer development charges at Rs, 30/- per square yards (tentative) and balance 50 and will be charged after six months. It is urged that 50% charges as claimed was paid on the very next day as per Challan No,37 dated 07.08.1998. It is further urged that impugned demand of exorbitant amount was raised on 07.04.2010 in the sum of Rs, 59,53,200/- and on failure the cancellation of layout plan has been ordered through impugned order dated 07.09.2010. Learned counsel has drawn out attention to Regulation 3.5.54 which provides inter-alia that old rates would be applicable where 50% or more ODC has already paid and new rates would apply where less than 50% has been paid. It is urged that Since the petitioner case pertains to old case, therefore, new rates as claimed through impugned demand would not be attracted [Underlining is ours] ' According to the learned counsel, if at all Court comes to a conclusion that the amount is payable, he undertakes to pay the same.
' Let notice be issued to the respondents as well as Principal Law Officer of CDGK To come-up after two weeks. In the meantime, the impugned cancellation of layout plan dated 07-09-2010 is suspended.
10. On service, the Respondent No,1 through Syed Nishat Ali son of Syed Irtiza Ali filed a 'common counter affidavit' in response to 'Main Petition' as well as Injunction Application under Order XXXIX Rules 1 and 2 R/W Section 151, C.P.C. Bearing CMA No,1142 of 2010, wherein it was specifically averred that 50% payment of ODC at the rate of Rs,30 per square yard, was, no doubt, charged but it was as 'tentative rate' and also subject to the condition that the Petitioner [s] has to pay the remaining amount within 6 months after payment of 50% amount as per letter dated 04.8.2008 [Annexure All to the MoP]. Per version of the Respondents, the six months' period stands expired in the month of March, 1999 but the Petitioner failed to pay the remaining 50% amount until the rates of ODC were enhanced by the competent Authority of Respondent No,1 in year, 2006. In view of this position, the demand of Respondent No,1 in the sum of Rs,5,953,200/- instead of 50% balance amount in the sum of Rs,43,500/- towards 'Outer Development Charges' is not only correct but also lawful.
11. In the 'counter affidavit', it was however, admitted that the Petitioner has already paid Rs,435,600/- i,e, 50% of 'Outer Development Charges' at the rate of Rs,30/- per square yard. The stand taken by the Respondent No,1 was to the effect that the amount was of the 'tentative nature' as by that time, the rates for 'Outer Development Charges' were not decided/fixed. Moreover, the Petitioners have also failed to pay remaining amount of 50% within 6 months. And in the meantime on 23.06.2006, the competent authority of Respondent No,1 enhanced/revised the 'Outer Development Charges [In short ODC] at the rate of Rs,220 per square yard. The Petitioner under such scenario has rightly and legally demanded the amount of Rs,5,953,200/- after deducting 50% of ODC's amount having already paid by the Petitioner to Respondent No,1.
12. Respondent No,3 KBCA also filed its' counter affidavit, wherein inter-alia it has been asserted that the 'Architectural Concept Plan', indeed, was approved vide No,KBCA/KDA/DCB- XXX/952/182/98/93 dated 25.8.1998 but the same was later-on withdrawn due to withdrawal of 'layout plan' by concerned authority. Nevertheless, upon restoration of 'Architectural Concept Plan' vide letter No,KBCA/DCB(BQT)/ 2009/44 dated 15.4.2009, and after getting , 'necessary approval' from competent Authority, the 'Revised Proposed Plan' of Ground (Shops +Parking+Recreation+ Flat+04 upper floors (Flat) approved vide No,KBCA/DCB(BQT)
Proposed/2010/1159/ 760/10/10 dated 31.5.2010 has been approved with the usual 'terms' and 'conditions' including the condition that 'Revised NOC' for Sale and Advertisement shall be obtained from Design Section.
13. In response to the 'counter affidavits', the petitioners also filed detailed affidavit-in-rejoinder(s) wherein, the allegations and averments made by the Respondents were not only specifically controverted but also vehemently denied.
14. Lastly, on 15.12.2015, when the Petition came-up before us, then we heard Mr. Shabbir Shah, learned counsel for the Petitioners, Mr. Iqbal Khurram, learned counsel for Respondent No,1 [MDA] and Sartaj Malkani for Respondent No,3 and with _their assistance also gone through available record.
15. Mr. Shabbir Shah, learned counsel for the Petitioners forcefully contended that the impugned letters dated 7th April 2010, 25th May, 2010 and 9th September, 2010 [Annexure 'A-8', 'A-10' & 'A-12' to the MoP respectively] issued by Respondent No,1 [MDA] are illegal, without lawful authority and of no legal affect. The Respondent No,1, per learned counsel, cannot deviate and derogate from the rate provided for 'Outer Development Charges' i,e, Rs,30 per square yards in respect of the 'said property' as mentioned/stated in its' letter of 'no objection' slated 4th August, 1998. [Annexure 'A-1' to the MoP]. Besides, MDA cannot deviate from Clauses 3-3.
5.4 of the Karachi Building and Town Planning Regulations 2002 having been inserted via the KBTPR Amendment 2006 wherein, it was clearly stated that the 'rate applicable' of the 'Outer Development Charges' would be at the old rate, as the Petitioner No,1 herein has already paid 50% of 'Outer Development Charges' in the sum of Rs,4,35,600/- before the KBPTR Amendment 2006 and this factum of payment has also been acknowledged by the MDA. Apart from above, the Respondent No,1, per learned Counsel for the Petitioners, is also bound by the Notifications dated 4th August, 2006 and 16th April 2010.
16. According -to Mr. Shabbir Shah, learned counsel for the Petitioners inter alia all the 'impugned letters' issued by the Respondent No,1 are also in violation of the Petitioners fundamental rights enshrined under Articles 9, 18, 23 and 24 of the Constitution of the Islamic Republic of Pakistan 1973 because on the face of it, they are laced with Mala fide intention' and 'ulterior motives' as the same are aimed only to delay, stifle and obstruct the development of the Petitioners' housing project viz. Raza City Centre. Per learned, the Respondent No,1 in any event is bound to act in accordance with the law and not otherwise. Moreover, in terms of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, it is the inalienable right of every citizen including the Petitioners to enjoy the protection of law and obviously to this extent Respondents Nos.1 to 3, cannot be permitted to take any action which is/seems detrimental to the 'project'/ 'subject property' of the Petitioners and/or their vested rights. The impugned letters of the Respondent No,1, per Mr. Shabbir Shah, also tantamount to compel the Petitioners herein to do that which the law otherwise, does not require them to do. Likewise, the 'impugned letters' and the 'acts' are also in clear violation of the Petitioners' fundamental right guaranteed under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, where-under not only all the citizens are equal before law but also entitled to have equal protection of law. In the case in hand, the Petitioners despite having already fulfilled all its obligations are being discriminated by the Respondent No,1 in its' own wisdom.
17. Moreover, the impugned letters and actions of Respondent No,1 besides tarnishing the reputation of the Petitioners, has also delayed, stifled and obstructed its' aforesaid 'housing project'.
The action, decision and demands taken/raised by the Respondent No,1 are not only illegal but also irrational, lacking propriety, failure of duty to act fairly and against the principles of natural justice as well as against . Petitioners' legitimate expectations.
18. Mr. Shabbir Shah, learned counsel for the Petitioners next contended in vehemence, that 'approval' of the 'layout plan' for the land ad measuring 6-00 acres regularized under the Ordinance III of 2001, was approved on 04.08.1998 and as per 'clause-x' of the Approval Letter No, MDA/MPD/SLT-203/97/373 dated 4.8.2008, the approval of the 'layout plan' was subject to payment of 50% Outer Development Charges at rate of Rs,30/- per square yards and balance 50% ODC was to be charged 'after six (06) months' and not within six (06) months as alleged on behalf of Respondent No,1. It is next urged by the learned counsel for the Petitioners that 50% 'Outer Development Charges' as was claimed has been paid on the very next day as per Challan No,37 dated 07.08.1998. The demand of the 'exorbitant amount allegedly raised on 07.04.2010 i,e, in the sum of Rs,59,53,200/- is not only illegal but unlawful. On failure, the cancellation of 'layout plan' has been ordered through 'impugned order dated 07.09.2010. According to learned counsel for the Petitioners Regulation 3-3.5.4 also provides inter alia that old rates are applicable where 50% or more ODC has paid. Per Regulation 3-3.5.4 new rates are only applicable to those cases where less than 50% has been paid. In view of this position as well, per learned counsel, since, the Petitioners case pertains to old category of cases, as such, the new rates as claimed in the sum of Rs,5,953,200/- besides, absolutely irrelevant are not attracted under the facts and circumstances of the present case. Lastly, learned counsel for the Petitioners prayed for granting of the petition otherwise, the Petitioners would be suffered seriously.
19. Adversely, Mr. Iqbal Khurram, learned counsel for the Respondent No,1 vehemently argued that the instant petition as 'framed' and 'filed' is not maintainable under law as such, is liable to be dismissed with cost. No doubt, 50% payment of 'Outer Development Charges'e Rs,30/- per square yard has already been paid by the Petitioners but it was 'tentative rate' and subject to the payment of the remaining 50% amount within six (06) months. Per learned counsel, despite lapse of six (06) months time w,e,f, 4.8.1998, the Petitioners however, have failed to pay the same as such now they are liable to pay ODC at enhanced rate/revised rate.
20. According to Mr. Iqbal Khurram, learned counsel for the Respondent No,1, the demanded amount in the sum of Rs,59,53,200/- on account of 'Outer Development Charges is quite legal and lawful as now the competent authority of Respondent No,1 w,e,f, 23.6.2006, has enhanced/revised the 'Outer Development Charges' at the rate of 220/- pa sq. Yard. Per learned counsel for the Respondent No,1 [MDA] since, the payment of 50% 'Outer Development Charges' paid by the Petitioners was 'tentative in nature' as such the Petitioners are liable to pay the 'Outer Development Charges' at 'new rates' having been later-on fixed by the Competent Authority of Respondent No,1.
In support of his contention, Mr. Iqbal Khurram, learned counsel for the Respondent No,1 placed reliance on the unreported order/judgment passed on 14.10.2009 in C. P. No, D-973 of 2008 by this Court in the case of Soorty Enterprises (Private) Limited v. Malir Development Authority and others - 'Para 6' therefrom, being relevant is reproduced as under:-- "6. We have heard both the learned counsel and perused the record with the assistance of both the parties. It appears that the Petitioner admittedly made the payment of outer development charges which were provisional in nature and subject to enhancement by the respondent. The two paid challans available at pages 57 and 59 annexures B & B-I respectively to this petition, towards town planning security fee and outer development charges contained the words provisional on the top of those challans and same were paid without any objection by the Petition Rs, The undertaking given by the Petitioner which is available at page 167 as Annexure R-3 to the counter affidavit on behalf of the Respondent No,1 also demonstrate voluntarily provisional payment towards outer development charges by the Petitioners and further undertaking that "If the same rate will be enhanced in your department I shall bound to pay in due time without prejudice." The said undertaking was signed by Director of the Petitioner Mr. Shahid Rasheed Soorty on 31.01.2006.
We are of the view that the outer development charges are charged on the basis of prevailing market rate and the provisional charges, though once communicated to the petitioner, cannot be considered final, more particularly in instant case where such charges were collected/paid provisionally subject to enhancement. In the instant case the said charges were claimed/paid on 31.01.2006 provisionally and not as final settlement towards outer development charges. The Petitioner once having accepted the same without any objection cannot be allowed to deviate from already agreed and acted upon terms and conditions in this regard" [Emphasis supplied].
21. Likewise, Mr. Iqbal Khurram, learned counsel for MDA, Mr. Sartaj Malkani, learned counsel for the Respondent No,3 while, reiterating the pleas raised on behalf of the Respondent No,3 in its 'counter- affidavit' prayed for dismissal of the petition with cost.
22. Heard.
23. Before proceeding further and with a view to properly understand/appreciate the arguments of the learned counsel for the parties it would be advantageous to refer to and reproduce herein Regulation 3-3.5.4 of Karachi Building and Town Planning Regulation, 2002 inserted via Karachi Building and Town Planning Amendment, 2006 and the relevant part of the Gazette Notification dated August, 4, 2006 herein respectively as below:-- A.
"3-3.5.4 Old rates of Outer Development Charges shall be applicable on those old cases where 50% or more ODC has already been paid. New rates shall apply to those old cases where less than 50% ODC has been paid" [Underlining is ours] B. than 50% ODC has been paid"
EXTRA ORDINARY Registered No,M-324 [Underlining is ours] 'THE SINDH GOVERNMENT GAZETTE Published by Authority KARACHI, FRIDAY, AUGUST 4, 2006 PART! - A BY THE ' EXECUTIVE DISTRICT OFFICER (LAW) CITY DISTRICT GOVERNMENT KARACHI ' KARACHI BUILDING AND TOWN PLANNING REGULATIONS (AMENDMENT) 2006 ' CITY DISTRICT GOVERNMENT KARACHI MASTER PLAN GROUP OF OFFICES No: Nazim/City/Secy/1367/2006 - In exercise of the powers conferred under Section 21-A of Sindh Building Control Ordinance 1979 the Authority is pleased to make the following Amendments under provision 3A-1 of KB&TP Regulations-2002. Amendments for the town planning Projects/ Development permits and other matters performed by the Master Plan Group of Offices, CDGK.
3-3.5.3 After full stop following shall be added: ' Such permission shall be issued on payment of Outer Development Charges @ Rs, 234/- per sq.
Yd.
' After the Clause 3-3.5.3 the following new Clause is added: "3-3.5.4 Old rates of Outer Development Charges shall be applicable on those old cases where 50% or more ODC has already been paid. New rates shall apply to those old cases where less.
24. Like-wise, another Notification No, DCO/CDGK/MPG0/2010/25 dated 16 . 04 . 2010 having been issued by Respondent No,2 is also reproduced herein for ready reference which reads as follows:-- CITY DISTRICT GOVERNMENT KARACHI No, DCO/CDGK/MPG0/2010/25 Dated: 16/04, NOTIFICATION i.' Subsequent upon the submission of proposal/request of the Association of Builders Developers
(ABAD) in respect of payment of long pending dues on account of Outer Development Charges (ODC), the City District Government Karachi is pleased to agree on the following: ii. 'The Outer Development Charges should be calculated on the rate applicable on the date of layout plan approval. [Underlining is ours] The Surcharge should be levied on the basis of simple interest rate of 13% p.a. Iii. ' This policy should be applicable to the whole District of Karachi. iv. Incentives of 40% rebate in the surcharge amount as per past practice of KDA/CDGK shall be given to those builders/developers/ individuals that pay the total amount within three months from the issuance of Notification. v. The builders/developers/individuals who do not wish to take this facility may apply for four equal quarterly installments of their entire amount provided that the first installment is paid within three months from the issuance of Notification. vi. Exemption of levy of ODC for the cancelled/litigation period. Vii. Exemption of levy of ODC for the period on which layout plan cancelled/withdrawn due to various reasons other than non-payment of dues.
' MR. Mumtaz Channa, DO-I, (W&S), CDGK.
Sd/- DCO/Administrator City District Government Karachi Distribution:
1. DCO, CDGK
2. EDO, MPG, CDGK
3. EDO, F&P, CDGK
4. EDO Rev, CDGK
5. EDO, Law, CDGK
6. Chairman, ABAD viii. The rate of ODC for the areas where no rate was fixed shall be recovered on the basis of rates already available for adjoining schemes and townships ix. Person submitting undertaking at the approval for payment of balance ODC should be made responsible for the payment of ODC but if the property has been sold with assets and liabilities duly verified by the documents, then the current owner should be made responsible for the payment of ODC. In case of ambiguity in their agreements, a Sub-Committee, comprising of the following to arrive at the decision as by whom the amount of ODC is to be paid. a. EDO, MPG b. EDO, F&P c. EDO, Law d. Representative of ABAD
25. Further from clause 'x' of the MDA' s Approval Letter of 'LAYOUT PLAN' dated 4.8.1988, it is quite significant to note that 50% balance amount of ODC was to be charged after six months and not within six months as asserted by Respondent No,1 [MDA]. The word 'charge' shows and oblige Respondent No,1 to have issued challan for the balance 50% ODC' s amount after six months to the Petitioners for payment of the 'Outer Development Charges' but this was not done by the Respondent No,1 upto the year, 2006 when the rates of 'Outer Development Charges' were allegedly enhanced/revised. It also appears, that the enhancement/ revision in the rate of 'Outer Development Charges', was hotly contested/agitated by the Association of Builders and Developers [In short ABAD] and consequently, on their 'proposer request' the aforesaid Notification No, DCO/CDGK/QMPGO/ 2010/25 of 16.4.2010 was issued. In terms of 'clause l' of the Notification, the 'Outer Development Charges' was to be calculated on the rates applicable on the date of layout plan approval. In the case in hand, the 'LAYOUT PLAN' for Survey No,160 [1- 2 acres], 161 [1-15 acres], 162 [1-25 acres] and 163 [1-28 acres]. Total measuring 6 acres, Deh Thano, District Malir, Karachi was approved on 04.08.1998. Being relevant Approval Letter of MDA dated 04.08.1998 is reproduced here-in-below:-- Tele: 4561203 No , MDA/M.P.D./SLT- 4561204 203/97/373 MALIR DEVELOPMENT AUTHORITY MRUAD MEMON GHOTH Malir dated the 4-8-1998 To, Muhammad Hanif Khan (Attorney)
Messrs Raza Enterprises Builder and Developer, Survey No,8901/1, Deh Thano, District Malir Shahrah- e-Faisal Karachi SUB: APPROVAL OF LAYOUT PLAN FOR SURVEY No,160(1-12 acre), 161(1-15 acre), 162(1- 25 acre) and 163 (1-28 acre) TOTAL MEASURING 6 ACRES DEH THANO DISTRICT MAUR KARACHI Ref- Your letter No,NIL dated 26-6-98.
' With reference to your letter cited above, the undersigned pleased to issue the NOC for approval of layout plan from Town Planning point of view under the following terms and Condition:- i- Clear title of land from Revenue Authority. ii. Necessary approval of MP-I form shall be approved from concerned authority. Iii- Individual Building Plan shall be got approved from concern .Authority. Iv- Zoning regulations of KDA scheme- 25-A shall be applicable. v- Any underground are over-heard services with right of ways passing through the site should be taken care of by the owner/attorney. To the satisfaction of the concern agency. Vi- In case of any litigation arising on land the same would be resolved by owner/attorney themselves. MDA shall not be responsible in any way for the same. Vii- In case of any mis- representation/concealing of facts. This NOC will be withdrawn without any notice. Viii- Internal development shall be carried out by the sponsors strictly in accordance with the approved layout plan and specifications. Ix- Site of the project shall be open for inspection by the authorized officers of the authority as and when required. x- Approval of layout plan on payment of 50% outer development charges I@ Rs, 30/- per sa yd (tentative) and balance 50% will be charged after six months. [Underlining is ours] xi- Outer boundaries of the project should be got demarcated by the staff of Executive Engineer MDA and final plan should be submitted to this office for record.
' One copy of approved layout plan is enclosed herewith duly stamped Sd/- ' (Manzoor Hussian Soomro) Additional Director (TP) Malir Development Authority ' End:- As above.
' Copy along with a copy of approved layout plan is forwarded for information and necessary action to:- I- Chief COB, KBCA, KDA ' For taking necessary regarding approval of MP-1 (NOC for sale and advertisement)
2- Deputy Commissioner Malir 3- Sarfaraz Ahmed, Licenced Town Planner 4- XEN SLT)
26. Moreover, in terms of clause 'x' of Respondent No,1' s letter of 4th August, 1998 since, the Petitioners have already paid 50% of the 'Outer Development Charges' and the remaining 50% was to be charged by the Respondent No,1 after six months, however, Respondent No,1 never demanded and/or issued any challan until 'Outer Development Charges' as claimed by Respondent No,1, were enhanced in the year, 2006. The claim/demand of 'Outer Development Charges' by MDA at the enhanced rate from the Petitioners and that too without affording any opportunity of hearing, in our view, is nothing but amounting to condemn and deprive the Petitioners of their vested right already accrued in their favour in the year, 1998 when, 'layout plan' was approved upon payment of 50% amount of the 'Outer Development Charges' at the rate of Rs,30/- per sq.Yd.
27. 'Fair opportunity of hearing' and 'due process', it is needless to say, is the fundamental right of all the citizens and litigants much-less after incorporation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. On this aspect of 'FAIR TRIAL' and 'DUE PROCESS', reliance can be placed on the cases Shabbir Ahmed v. Kiran Khursheed and 8 others [2012 CLC 1236] and [N. Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another [2012 SCM R 1235], wherein it was observed as follows:-- A. 2012 CLC 1236 'Article 10-A, morphs Article 4 into a more robust fundamental right covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life liberty or property-The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural. Propriety and at all times must honour the law and the settled legal principles. Article 10A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis supplied).
B. 2012 SCM R 1235 "11 . Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan 1974 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void." [Underlining is ours].
28. Apart from the above, it is also significant to note that Gazette Notification issued by Sindh Govt.
On August 4, 2006 under Section 21-A of Sindh Building Control Ordinance, 1979 is beneficial in nature as such besides being retrospective is also binding on all the concerned including the Respondents. In terms of 'clause 3-3.5.4' old rates of 'Outer Development Charges' is applicable to those old cases wherein 50% or more 'Outer Development Charges' has already been paid and new rates manifestly, is stated to be applicable to those old cases where less than 50% 'Outer Development Charges' has been paid. Needless to say, the Petitioners in the instant case have already paid 50% 'Outer Development Charges' at the rate of Rs,30/- per sq.Yd.
29. On the beneficial and retrospective effect of a Notification, reliance can be placed on the case of Government of Pakistan through Secretary Ministry of Commerce, Pak. Secretariat, Islamabad v.
Messrs Village Development Organization, V.P.O. Landrwan, District Laki Marwat through (General Attorney) Sher Adam [2005 SCM R 492]. The relevant portion therefrom reads as follows:-- 6 ... It is well-settled principle of law that the executive orders or notifications which confer, right and are beneficial, would be given retrospective effect and those which adversely affect or invade upon vested right cannot be applied with retrospective effect. In the instant case also permission to export was accorded by Government of Pakistan, Ministry of Food, Agriculture and Livestock on 2-3-2002 with N.O.C. The copy of the said letter was sent to Ministry of Commerce. It was for the first time that petitioner informed the respondent vide letter, dated 9-1-2004 that E.C.C. Has taken decision to export 50,000 M/Tons of urea through manufacturers only. Since the said order had adversely affected the vested right of the respondent as such, it would not be appropriate to apply it with retrospective effect. For better appreciation, reference can be made to the case of Anound Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340, wherein this Court while dealing with the similar aspect of the matter held that if the notification has been used for the benefit of the subject then it can be made operative retrospectively but if its operation is to the disadvantage of a party who is the subject of the notification then it would operate prospectively. " [Underlining is ours)
30. As far as the unreported order/judgment dated 14.10.2009 passed in C.P. No,D-973 of 2008 by Division Bench of this Court in the case of Soorty Enterprises (Pvt.) Limited v. Malir Development Authority and others is concerned, in our view, the same is distinguishable under the facts and circumstances of the present case. In the case in hand, it is significant to note that the challan No,37 dated 4th August, 1998 through which 50% payment of 'Outer Development Charges' was paid, the word 'provisional' is not appearing on the said challan. Likewise, in the case in hand there is no undertaking by the Petitioner No,1 and/or on behalf of Petitioner No,2, as was given in the aforesaid case, on behalf of MIS. SOORTY ENTERPRISES (PVT.) LIMITED. The 'relevant part' of the said undertaking given by the Director of Messrs Soorty Enterprises (Pvt.) Ltd. Reads as follows:-- "It is submitted that I undersigned is the owner of the subject land and pay the outer Development charges as per order of the project director MDP I@ Rs, I00/- per Sq.Yd and submitting a pay order of Rs,15 , 330, 700/- pay order No,0014614 which may kindly be accepted further I undertake that if the same rate will be enhanced in your department 1 shall be bound to pay the same in due time without prejudice. As well as NOC for environment control agency concern I have applied for the same which is expected within a month time as soon as I received the same I will submit your department. "
Sd/- ' Shahid Rashid Soorty (Director) M/s. Soorty Enterprises (Pvt.) Ltd."
31. In view of the above position, the arguments of Mr. Iqbal Khurram, learned counsel for the Respondent No,1 [MDA] inter alia to 'the effect that Petitioners, in any event, are liable to pay 'Outer Development Charges' [In short ODC] at the 'new rates' is not only mis-conceived but also misleading as such repelled.
32. For and in view of above, we are of the considered view that the impugned letters of Respondent No,1 [MDA] dated 7th April, 2010, 251h May, 2010 and 9th September, 2010 [Armatures 'A- 8', 'A-10' & 'A-12' to the MoP respectively] beside, illegal, without lawful authority are of no legal effect and/or consequences. Consequently the Respondent No,1 [MDA] is directed to accept 50% balance amount in the sum of Rs,4,35,600/- as being 'Outer Development Charges in respect of the 'said property' at the rate of Rs,30/- per sq.Yd. Besides, the interim order dated 28.09.2010 stands confirmed. Accordingly, the petition stands disposed of along with the pending application[s].