AYESHA A. MALIK, J.----This common judgment decides upon the issues raised in the instant Petition along with connected Petitions, as detailed in Schedule "A" appended with the judgment, as all Petitions raise common questions of law and facts. The instant Petition along with connected petitions essentially challenge the vires of provisions of the Lahore Development Authority Act, 1975 ("LDA Act") as well as provisions of the Lahore Development Authority Land Use Rules, 2014 ("2014 Rules ") and consequently demand that notifica tions seeking payment of commercialization/conversion fee be set aside.
The case of the Petitioners
2. The Petitioners before the Court are either owners or tenants of properties who have been asked to pay conversion fee by the LDA under the 2014 Rules for carrying out commercial activity at their property . The Petitioners have either impugned demand notices issued by Lahore Development Authority ("LDA") for payment of conversion fee or have challenged public notices dated 28.12.2012 and 5.1.2013 issued in leading newspapers both english and urdu on the basis of which, a list was provided of commercial areas and the public was informed that they have seven days to have their properties converted permanently , for commercial use after payment of conversion fee. In some cases the Petitioners have challenged the vires of certain provisions of the LDA Act on the ground that they do not have the power to levy conversion fee as this power vests with the Local Government and in some cases the challenge is with respect to the authority of the LDA to demand a one time conversion fee.
3. The instant Petitioner is a school locat ed within the Gulberg Scheme whose contention is that they have been paying temporary commercialization fee for the property for a long time and that there is no basis to charge permanent commercialization fee from the Petitioners. There are several other petitions filed by schools on the same ground being W.Ps. Nos.12224/16, 12222/16, 12225/15, 12216/16 and 12220/16. In other cases, the Petitioners state that they are engaged in commercial activity on commercial roads, that their property is located in a commercial area, hence there is no reason to convert the land usage as its usage has been declared commercial. In this context, the relevant areas where the business of the Petitioners are located within the Gulberg Scheme are MM Alam Road, Jail Road, Main Boulevard Road and Zafar Ali Road amongst others. The other locations in dispute are Iqbal Town Scheme, Multan Road, College Road and Lawrence Road which are all declared commercial by the LDA. In this context, the basic arguments of the Petitioners are as follows:
(i) The Petitioners have been doing commercial business at their properties for a long time and have been paying commercialization fee having all requisite permissions in place. Therefore there is no legal justification for charging a one time conversion fee under the LDA Act and the 2014 Rules for the purposes of carrying out commercial activity on their properties;
(ii) The Petitioners are located on a road or segment of road which has been declared commercial, hence there is no legal justification for charging conversion fee as the land usage is declared commercial. Hence the Petitioners should not be required to pay conversion fee;
(iii) The Petitioners have challenged the demand for one time conversion fee on the ground that they should be allowed to pay annual commercialization fee and that a one time lumpsum amount not only is financially not viable but that no quid pro quo is of fered on the basis of such a huge amount charged by LDA;
(iv) That Sections 4, 6, 13, 14, 14A, 18, 19, 28 and 37 of the LDA Act ("the Challenged Provisions ") violate Article 140A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution ") which envisages a three tier system of government being Federal, Provincial and Local, hence are ultra vires the Constitution and should be declared so;
(v) That the impugned sections usurps the power of the Local Government in favour of the LDA which is not only against the mandate of the Constitution but also deprives the Local Government of its ability to raise revenue to carry out its functions under the Punjab Local Government Act, 2013;
(vi) That the quantum of the conversion fee prescribed is arbitrary , excessive and discriminatory;
(vii) That the 2014 Rules do not prescribe the manner in which the fee shall be charged rather a flat rate of 20% of the commercial value of the property is the required rate charged by the Respondents.
4. The argument essentially made by the learned counsel for the Petitioners is that LDA does not have the power to levy or collect a conversion fee under Section 28 of the LDA Act for land usage which is declared commercial that is where the land usage has been declared commercial, there is no legal basis to recover conversion fee. Further that if at all any fee can be levied it is only to recover cost incurred for conversion within a specified scheme. This requires proper disclosure by LDA of the cost incurred and the amounts statedly to be recovered. Hence it is argued that the conversion fee at the rate of 20% of the commercial value of the property is arbitrary , without basis, exorbitant and does not fall within the mandate of Section 28 of the LDA Act. It is also argued that there is no quid pro quo offered by the LDA for the fee they are charging. In this regard, the argument is that in order to levy a fee quid pro quo is mandatory . Reliance is placed on Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402 ), Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44), Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another v.
Durrani Ceramics and others ( 2014 SCMR 1630 ).
5. Learned counsel for the Petitioners also argued that LDA cannot charge a one time fee for permanent conversion as that not only goes against the quid pro quo requirement but also against the mandate of Section 28 read with Section 31 of the LDA Act. Learned counsel for the Petitioners also argue d that the LDA Act read with the 2014 Rules seeks to vest the powers of the Local Government in a non-elected authority which is fundamentally opposed to Article 140A read with Article 32 of the Constitution and offends the fundamental rights of the Petitioners. Reliance has been placed on Lahore Development Authority throug h D.G. and others v. Ms. Imrana Tiwana and others (2015 SCMR 1739 ) ("Imrana Tiwana Case ") to urge the point that these aspects of the matter have not been considered by the august Supreme Court of Pakistan in the said judgment. Learned counsel further argued that Local Government is an elected body which is responsible under the Local Government Act, 2013 (as the relevant law at the time) to essentially develop land use plans, classification and re-classification along with development of markets and zoning rules while considering public transport, roads and other infrastructure. In this regard, the function of the Local Government has been handed over to the LDA which not only is unconstitutional but deprives the Local Government from its ability to do its functions through its elected representative as well as to raise revenue to carry out its functions as contemplated under the Local Government Act. Hence they argued that there is no means of harmonizing the functions of an elected local government viz-a- viz the impugned Sections of the LDA Act.
The case of the Respondents
6. On behalf of LDA it is argued that the vires of the sections challenged has already been settled in the Imrana Tiwana Case wherein it was held that these provisions being the Challenged Provisions of the LDA Act are to be construed harmoniously with the functions of the Local Government under the Local Government Act, such that they are compliant with each other in furtherance of their functions and responsibilities. It is also argued that LDA carries out most of the development works in the Lahore Division with the help of WASA and TEPA and that the re- classification of various different schemes falls within the mandate of the LDA Act as well as the 2014 Rules; that the Gulberg Scheme was re-classified so as to facilitate the inhabitants of the areas and to ensure that commercial activity was restricted to particular zones to protect overflow issues and that the District Planning and Design Committee, Lahore has reviewed all recommendations made by the LDA with respect to the commercial and frozen roads which led ultimately to the Notification of 29.6.201 1 issued by the Director . General, LDA; that the LDA can charge conversion fee on the basis of Section 28 of the LDA Act read with Rule 28 of the 2014 Rules and as such no illegality has been committed by the LDA.
7. So far as the quid pro quo argument is concerned, it is argued that LDA provides a large number of services for the development and facilitation of its schemes, hence it can charge a one time permanent conversion fee. In this regard, learned counsel argued that the LDA maintains the LDA Fund and the Urban Development Fund from which it is required to provide various different services. In this regard, learned counsel argued that if there was no quid pro quo the properties being used commercially or industrially would be of no use to the Petitioners as the commercial or industrial value of the land is on account of the services provided by LDA for that area. During the course of arguments, learned counsel also informed the Court that the Lahore Development Authority Land Use Rules, 2014 have been repealed by the Lahore Development Authority Land Use Rules, 2020 ("2020 Rules ") on the basis of which many of the pending Petitions have become infructuous as the 2020 Rules have once again introduced the concept of temporary commercialization, hence for those Petitioners who are aggrieved by permanent conversion, the option of availing temporary commercialization is once again available. However , LDA's counsel requested that the matter be decided on its merit to settle the long standing issue.
Issues before the Court
8. On the basis of the arguments made , the issue before the Court is primari ly whether the LDA can levy a conversion fee in areas which are declared to be commercial; whether such a fee can be a one time fee and whether the fee charged is as per the requirements of Section 28 of the LDA Act. Also in issue are the vires of Sections 4, 6, 13, 14, 14A, 18, 19, 28 and 37 of the LDA Act with specific reference as to whether these powers should be exercised by the Local Government