1. CH. IJAZ AHMAD, J.- Brief facts out of which present writ petition arises are that the petitioner participated in the auction proceedings held by the respondent No. 1 on the basis of scheme issued by the competent authority vide Notification dated 2.7.2001 for collection of building fee, Debris Dumping fee and conversion fee for the year 2002- 2003. The bid of the petitioner was highest, which was accepted by respondent No. 1. Consequently, an agreement was also executed between the petitioner and respondent No. 1 on 9.7.2002 for the period w.e.f. 1.7.2002 to 30.6.2003. The work charge was also issued in favour of the petitioner by respondent No. 1. Resultantly, the petitioner has started to collect the aforesaid fees and has made payment in terms of the agreement, to respondent No. 1. Respondent No. 2 submitted an application before respondent No. 1 for approval of building plan for constructions of "Dubai Shopping Mall" on 27.8.2002 with the request for exemption of Debris Dumping fee. The Provincial Government is the owner of the land in-question which has been leased out by the Provincial Government to Pakistan Railways. Tehsil Officer Planning and co-ordination TMA Faisalabad directed respondent No. 2 to remit the following fees in building head of respondent No. 1, as per schedule notified by the Government:-
(i) Building fee @ of Rs.3/- Sq. Ft. = Rs.7,77,237/-
(ii) Debris Dumping fee @ 50" = Rs. 1,29,5407- _______________ Total =Rs.9.06.7777- The respondents did not demand conversion fee from the respondent No. 2. The petitioner approached respondent No. 1 that respondent No. 1 dia not approve the building plan of respondent No. 2 of the building in-question without payment of conversion fee and the land in- question is owned by the Provincial Government which has been given on lease to the Pakistan Railways by the Punjab Government for Railways Rest House and not for commercial use as is evident from Annexure-E attached with the writ petition and Jamabandi for the year 1977-78 qua the land in-question. Respondent No. 1 was pressurized by respondent No. 3 not to demand conversion fee from respondent No. 2. Respondent No. 1 sent explanatory letter to respondent No. 3 on 27.9.2003 to justify the claim of levying conversion fee which is attached with writ petition as Annexure-F. Respondent No. 1 also brought into notice of D.C.O. Faisalabad that action of respondent No. 1 is in accordance with law and has also pointed out to respondent No. 3 vide his letter dated 27.9.2002 and also pointed out that no approval of the plan could be sanction without permission of Board of Revenue which is attached with the writ petition as Annexure-G. Respondent No. 2 finally agreed to pay building fee and Debris Dumping fee under protest on 31.10.2002 which is attached with writ petition as. Annexure-H at page No. 28. Respondent No. 1 also intimated vide letter dated 14.12.2002 to respondent No. 2 that respondent No. 2 has to pay commercialization fee in terms of the policy of respondents issued by the competent authority vide Notification dated 2.7.2001 which is attached with the writ petition as Annexure-B by mentioning that the land in question belongs to Provincial Government which had been leased out to Pakistan Railways Department for the constructions of Daak Bungalow and NOC from the Board of Revenue, Punjab was necessary to allow the change of land for the use of commercial purpose and resultantly conversion fee would be levied in terms of the policy of the respondents. The respondents sent letter to respondent No. 2 on 13.1.2003 in which it was stated that the Chief Minister had, on the desire of the Railways Minister directed that the conversion fee should not be collected till further order as is evident from Annexure- attached with the writ petition. Respondent No. 2 sent the said letter to respondent No. I vide letter dated 14.1.2003. Respondent No. 1 vide letter dated 18.1.2003 requested respondent No. 3 that action of respondent No. 1 is in accordance with law and requested that the aforesaid letter be withdrawn and Railways Authorities be directed to pay the requisite fees to the Municipal Administration before commencing with any construction work.
2. Respondent No. 3 directed respondent No. 1 that respondent No. 1 defying the direction of the Provincial Government and ordered him to facilitate the project vide letter dated 7.2.2003 which is attached with the writ petition as Annexure-N. In obedience of direction of respondent No. 3, respondent No. 1 directed the Tehsil Officer Planning and Go-ordinance/TMA Faisalabad and that the directives of Government of Punjab be implemented in letter and spirit vide letter dated 7.2.2003. Respondent No. 1 complied with the direction of respondent No. 3 and approved the building plan provisionally vide order dated 17.2.2003. The petitioner being aggrieved filed this writ petition.
2. The Learned counsel of the petitioner submits that respondent No. 3 has no lawful authority to issue direction to respondent No. 1 to approve the building plan submitted by respondent No. 2 in violation of policy issued by the competent authority vide Notification dated 2.7.2001. He further submits that respondent No. 3 has no lawful authority to direct respondent No. 1 to approve the building plan of respondent No. 2 provisionally in violation of law while exercising power under Section 4 of the Punjab Local Government Ordinance, 200I. He further submits that the petitioner has secured contract from the respondents on the basis of policy of the respondents issued on 2.7.2001. Respondent No. 3 has no lawful authority to modify or amend the same without approval of competent authority. The competent authority to amend the policy is the Provincial Assembly.
3. He further submits that respondent No. 3 has no lawful authority to give direction to respondent No. 1 through the impugned letter without providing proper hearing to the petitioner as the petitioner had secured vested right on account an agreement executed between the petitioner and respondent No. 1 on the basis of policy dated 2.7.2001. He further submits that legislature in its wisdom did not provide unlimited power to the Provincial Government as provided by the competent authority u/Ss. 153 to ,157 in Punjab Local Government Ordinance, 1979. There was no corresponding provisions in the Punjab Local Government Ordinance, 2001. He further submits that in case of dispute between the Provincial Government and District Government/Tehsil Government, then the matter shall be referred to the Provincial Local Commissioner under the provisions of Sections 131 and 132 of the Punjab Local Government Ordinance, 2001. He further submits that the competent authority has not constituted the Provincial Local Commission in the aforesaid provisions of law till date. He further submits that the impugned orders are not sustainable in the eyes of law and in violation of law laid down by the Superior Courts. In support of his contention, he relied upon the following judgments:- "Muhammad Sadiq v. Muhammad Rafiq, etc."
4. (1985 SCMR 376); "Assistant Director v. M/s. B.R. Herman, etc." (PLD 1992 S.C. 485); "Zahid Akhtar v. Government of Punjab, etc." (PLD 1995 S.C. 530); "Punjab Text-book Board, etc. v. M. Akhtar Sherani, etc." (PLD 2001 S.C. 1032) + (200I PSCC 1817).
3. The Learned law officer submits that the writ petition is not maintainable as the petitioner has alternative remedy to file a complaint before the Provincial Local Government Commission. He further submits that the petitioner has no locus standi to file this Constitutional petition in view of differences between the two Governments i.e. Provincial Government and District/Tehsil Government. He further submits that respondent No. 3 has passed the interim order, therefore, the writ petition is not maintainable. He further submits that respondent No. 3 had not passed any final order, therefore, the writ petition is liable to be dismissed. He further submits that action of the respondent is valid. He further submits that the competent authority has constituted Provincial Local Govt. Commission but the competent has not framed the rules. The proposed rules have been forwarded to the competent authority for approval and approval be sought within a short time, thereafter, rules shall have to be framed and the Provincial Local Government Commission will function after framing of the said rules by the competent authority. He further submits that the respondent No. 1 has power to exempt the tax in-question in view of Section 116 of the Punjab Local Government Ordinance, 2001.
4. The Learned counsel of respondent No. 1 submits that the respondent had acted under the direction of respondent No. 3, therefore, the dispute is basically between the petitioner and respondents Nos. 2 and 3. He further submits that the petitioner has no locus standi to file this writ petition in view of clause 21 of the agreement executed between the petitioner and respondent No. 1.
5. The Learned counsel of respondent No. 2 submits the petitioner wants enforcement of contract through this Constitutional petition, therefore, the writ petition is not maintainable, In support of his contention, he relied upon the following judgments:- " Chairman Municipal Committee v. Muhammad Jan" (PLJ 1987 Lah. 634); "Munshi Abdul Jabbar, etc. v. Teh. Barisal Municipal" (PLD 1970 Dacca 508); "Malik Muhammad Nawaz v. Town Committee"
5. (1985 CLC 2891); "Ashraf Ali Akanda v. Abdul Awal, Deputy Magistrate" (PLD 1968 Dacca 962); "Muhammad Din and Sons v. Province of West Pakistan" (PLD 1969 Lah. 823); "Tanvir Akhtar, etc. v. Mst. Miqaddas Asri, etc."
6. (1987 CLC 640); "Aftab Hassan v. Province of Punjab, East Pakistan" (1971 D.L.C. 250).
7. He further submits the property in-question is situated in commercial area as is evident from the written statement filed by the respondents. Respondent No. 1 is bound to obey the direction of respondent No. 3 in view of Section 4 of the Punjab Local Government Ordinance, 2001.
8. Consequently, the petitioner is bound to obey the order of respondent No. 1 on account of an agreement executed between the petitioner and respondent No. 1.
6. The Learned counsel of the petitioner in rebuttal submits that the petitioner has not filed this writ petition for enforcement of contract; whereas the petitioner has challenged the vires of order passed by respondent No. 1 under the direction of respondent No. 3 in violation of law and policy of the respondents.
7. I have given my anxious consideration to the contentions of the Learned counsel of the parties and perused the record myself.
8. It is better and appropriate to reproduce the operative part of the policy issued by the respondents vide Notification dated 2.7.2001 and corresponding inter se between the respondents to resolve the controversy between the parties:- "(Contents of Clause of Policy dated 2.7.2001)
9. "Conversion of land use for projects run by charitable organizations operating on no profit and non-commercial basis and exempted from income- tax may in the public interest be exempted by the Government from payment of Commercialisation fee."
10. Clause 21 of Agreement. {{urdu text miss}} Contents of letter dated 27.8.2002: "Approval of Construction Plans. Exemption of Debris Dumping Fee. The project is being executed in such a manner that neither the debris will be dumped nor the same will be disposed off, outside our premises. The debris dumping fee may therefore please be exempted."
11. 1 -1 Building fee @ Rs. 3/- S.Ft. = Rs.7,77,237/- 1-2 Debris Dumping fee @ .50" = Rs. 1,29,540/- at pages 24 and 25 (Contents of Jamabandi for year 1977-78). {{urdu text miss}} (Contents of letter dated 27.9.20O2)
12. 2-1. The land is owned by the Government of Punjab.
13. 2-2. It was leased to Pakistan Railways for the constructions of official residences.
14. 2-3. The Pakistan Railways has now entered into an agreement with Ajami (Pvt.) Ltd. To commercialize the said land.
15. 2-4. The permission of B.O.R. Punjab in this respect is not present on our record.
16. 2-5. Decision,of competent authority on applicability of Local Government Ordinance, 2001 on Pakistan Railways land jurisdiction and on the conversion fee as per commercial policy of the Punjab Government.
(3) Since the developer have applied for the approval of said plan therefor, this is in the fitness of affairs that this office may proceed in accordance with decision arrived at by the Govt, it is therefore, requested to please communicate.
17. An early reply in this respect is solicited please".
18. (Contents of letter dated 7.10.2002) "The Tehsil Municipal Administration is of the opinion that this site being in the close proximity to the Railways Station and located at the main road junction would be a great hazard in respect of traffic, especially at the time of arrival and departure of trains.
19. Perusal of the record further revealed that the land where the shopping Mall is to be constructed is the property of the Government of Punjab, leased to Pakistan Railways for construction of a Rest House and Dak Bungalow.. The Railways Authorities without obtaining any NOC from the Board of Revenue, Punjab for commercializing the said property, have entered into a contract for constructions of the said shopping Mall.
20. The Management of the proposed shopping Mall have not submitted a site building plan for approval of the Tehsil Municipal Administration, In response, the Tehsil Municipal Administration, vide letter No. TO (P&C) 1305/C, dated 27.9.2002 have acknowledged receipt of the site plan and has asked management to deposit a sum of Rs. 9,06,777/- in accordance with rules. This is scrutiny fee and does not mean an automatic approval of the site plan. The fee has not been deposited to date.
21. Tehsil Municipal Administration vide their letter No. TO (P&C 1303/C, dated 27.9.2002 has explained the whole situation to the Secretary, LG fit R.D Department, Government of the Punjab, Lahore and have requested for further instructions in the matter . As no approval of the site plan can be given without permission of the Board of Revenue, Punjab in respect of commercialization of said piece of land by Pakistan Railways, Decision of competent authority on applicability of Local Government Ordinance, 2001 on Pakistan Railways being a lessee of Board of Revenue, Government of Punjab and on the conversion fee as per commercialization rules of the Punjab Government has also been solicited." (Contents of letter dated 14.12.2002) at page 29. "Since this office has already referred the case to Government of Punjab vide this office memos. No. TO (P&Q/90, dated 8.5.2002 and No. T/1303/C, dated 27.9.2002, therefore, the plan referred to above is kept pending till the receipt of decision of Secretary Government of the Punjab, LG fil RD Department, Lahore, so that all requisite legal formalities are catered for."
22. (Contents of letter dated 13.1.2003) at page-30: "Tehsil Municipal Administration, Multan City and Faisalabad City have been directed to defer the collection of commercialization and other fee/charges from the Ministry of Railways and not interfering with the working operation of the project in hand on the Pakistan Railways land at Multan and Faisalabad till further order.
23. I am further directed to add that request of the Ministry of Railways for exemption from commercialization fee is being considered by the Government of Punjab and the final device will be issued. In due course. The project of Pakistan Railways in hand are being allowed to operate till final determination of the issues under consideration by the Government of Punjab".
24. (Contents of letter dated 18.1.2003) at pages 32- 33" "The Tehsil Municipal Administration, Faisalabad City has been directed to defer the collection of commercialization fee and other charges from the Ministry of Railways and not nitering with the working/operation of the project in hand on the Pakistan Railways Lands at Multan and Faisalabad till further orders.
25. In the last meeting held under the Chairmanship of the Secretary, Local Govt, and Rural Development Department the TMA, Faisalabad city had raised the following points:-
(a) The land where Railways intend to build the said Dubai Shopping Mall is the property of the Govt, of the Punjab eased out to the Railways for the specific purpose of constructions of Dak Bungalows and others. It is NOT the property of Pak. Railways as erroneously referred to. No permission from the Govt, of the Punjab in the shape of an NOC from the Board of Revenue, Punjab has been obtained to change the status of land use.
(b) The commercial activities that are to be carried out by the Railways authorities, in accordance with various statutes, are for the provision of facilities to the Railway passengers on Railway platforms etc. And not for carrying out regular market oriented commercial activities like constructions of Shopping Malls, etc. No. NOC from the requisite quarter is on record.
(c) The Commercialization Policy of the TMAs is strictly in accordance with the directions of the Government of the Punjab. The commercialization fee, so calculated, is also strictly in accordance with rules. Any change in the fee can only be done through appropriate legislation by the Provincial Assembly.
(d) The approximate commercialization fee calculated in respect of Dubai Shopping Mall, ,Faisalabad is to the tune of Rs. 4 Crores 55 lakhs. This is a substantial revenue, to be generated by the TMA to be utilized in the generation of its development activities.
26. Any reduction if so, made, would not be in accordance with law and to against the spirit of the Devolution Plan, where the Local Governments have to generate their on revenues for development activities.
27. In the light of above, it is requested that the said letter, referred to above may kindly be withdrawn and Railway Authorities directed to pay the requisite fees to the Municipal Administration before commencing with any construction work."
28. (Contents of letter dated 6.2.2003) at page-34: "It is therefore, incumbent upon you to adhere to the instructions of the Punjab Government conveyed to you in public interest vide letters of even numbers dated 13.1.2003 and 18.1.2003. After examining the issue threadbare by this Department, your views/reply amount to defying the policy instructions issued by the Provincial Government.
29. As regards the issue of ownership of land and seeking concurrence of Board of Revenue, it is stated that necessary action has been initiated, It is reiterated that the letter under reference was issued to facilitate Completion of on-going project as an interim relief i.e. Till such time that policy for commercialization is amended and allied matters are finalized at the end of the Provincial Government".
30. (Contents of letter dated 7.2.2003) at page-35: The directives of the Government of Punjab are to be implemented in letter spirit."
31. (Contents of letter dated 17.2,2003) at page-36: "Please refer your letter No. Z- 001/03/0392, dated 7.2.2003 on the subject noted above:- In pursuance of the directive of the Government of the Punjab LG &e RD Department vide dated 13.1.2003 and subsequent directive of even dated 6.2.2003 conveyed by the Tehsil Municipal Officer, TMA-Faisalabad City vide dated 7.2.2003, the construction plans for subject site are provisionally approved by the competent authority vide order dated 17.2.2003 subject to the conditions stated in the said directives alongwith those given." it is also better and appropriate to reproduce Section 8 of the aforesaid Ordinance:- "Local Government to work within Provincial Framework-- (1) The local Governments established under this Ordinance shall function within the Provincial framework and adhere to the Federal and Provincial laws."
32. In the aforesaid inter se corresponding between the respondents are put in juxta position, then it is crystal clear that respondent No. 1 had approved the building plan under the direction of respondent No. 3 in violation of policy issued by competent authority vide notification dated 2.7.2001. It is settled principle of law that when the competent authority has passed the order under the dictate of Superiors then it is not sustainable in the yes of law. In arriving to this conclusion, I am fortified by the law laid down by the Hon'ble Supreme Court in Ghulam Mohy-ud-Din's case (PLD 1964 S.C. 829). After addition of Section 24-A in the General Clauses Act, it is the duty and obligation of public functionaries to decide the applications of citizens with reasons. The impugned order of respondent No. 3 dos not contain any reason, to direct respondent No. 1 to app-ovel the building plan of respondent No. 2 in violation of policy issued by the competent authority, therefore, the impugned order of respondent No. 3 is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in M/s. Airport Support Services' case (1998 S.C,M.R. 2268). It is also seeded principle of law that the Executive Authority must have been exercised power in accordance with law in view of Article 4 of the Constitution which prescribed duty on each and every public functionary to act in accordance with law and not in derogation of law. It is also settled principle of law that even the Chief Executive of the Country is bound to obey the mandate of Constitution in view of Article 5(2) of the Constitution as per principle laid down- by the Hon'ble Supreme Court in "Ch. Zahur Elahi. MNA v. Mr. Zulfiqar Ali Bhutto, etc." (PLD 1975 S.C. 383). The Executive authority prescribed under Section 4(2) of the aforesaid Ordinance is of supervisory nature, therefore, the Provincial Government has to formulate the policy by exercising powers under section 4(2) of the aforesaid Ordinance. Respondent No. 3 has exercised Executive Authority not In public interest but in the interest of respondent No. 2, therefore, respondent No. 3 has not exercised discretion in accordance with law on well- known maxim fair play, equity and justice, as per principle laid down by the Hon'ble Supreme Court in Muhammad Iqbal's case (PLD 1991 S.C. 35) and "Capt (R.) Abdul Qayyum's case (PLD 1992 S.C. 184). The Public functionaries are duty bound to act in accordance with law as per principle laid down by the Hon'bel Supreme Court in "Utility Stores Corporation's case (PLD 1987 S.C. 447). The objection raised by the learned counsel of the respondents that the writ petition is not maintainable, has no force as the petitioner has not filed this writ petition for the enforcement of contract, Infact the petitioner has challenged the vires of order of public functionary qua the impugned order in this writ petition. The Hon'ble Supreme Court has laid down the following principle qua exercise power by the public functionary in Shoukat AR's case (PLD 1997 S.C. 342):- "We may observe that since Pakistan is fonded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic concept of fair play and social justice.
33. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise.
34. While discharging official functions, efforts should be made to ensure than no one is denised to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary.
35. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licenses granted by the Railways, will be treated fairly."
36. The objection raised by the learned counsel of the respondents that the petitioner has alternative remedy to approach the Provincial Local Government Commission, has also no force as the Commission is not functionating at present moment in view of the statement of Learned Law Officer. The submission of Learned Law Officer has also . No force as is evident from the aforesaid corresponding between the respondents Nos. 1 and 3. Respondent No. 1 is the oftly competent to exempt any tax after applying its independent mind under Section 16 of the said Ordinance and not under the dictate of respondent No. 3.
37. In view of what has been discussed above, this writ petition is accepted with no order as to costs and the impugned orders of respondents are set aside.