CH. IJAZ AHMAD, J.- I intend to decide the following writ petitions by one consolidated order having similar facts and law:- W.P. No. 921/2002,
3. W.P. No. 923/2002,
5. W.P. No. 925/2002,
7. W.P. No. 927/2002,
9. W.P. No. 929/2002, II. W.P. No. 931/2002,
13. W.P. No. 933/2002,
15. W.P. No. 228/2002,
17. W.P. No. 2592/2002, 19.
W.P. No. 2594/2002,
21. W.P. No. 2596/2002,
2. W.P. No. 922/2002 4. W.P. No. 924/2002 6. W.P. No. 926/2002 8. W.P. No. 928/2002 10. W.P. No. 930/2002 12. W.P. No. 932/2002 14. W.P. No. 934/2002 I6.
W.P. No. 2591/02 18. W.P. No. 2593/02 20. W.P. No. 2595/02 22. W.P. No.2597/02 23. W.P. No. 2598/2002,
24. W.P.No.2599/2002 25. W.P. No. 1647/2002, '26. W.P. No. 1957/Q2 27. W.P.No. 1646/2002,
28. W.P. No. 8677/01 29. W.P. No. 8678/2001,
30. W.P. No. 9066/01 31. W.P. No. 9066/2001,
32. W.P. No. 9067/01 33.
W.P. No. 9068/2001 34. W.P. No. 10273/01 35. W.P. No. 10292/2001 36. W.P. No. 10295/01 37. W.P. No. 10305/2001 38. W.P. No. 10306/01 39. W.P. No. 15649/2001 40. W.P. No. 15650/01 41. W.P. No. 16308/2001
42. W.P. No. 18477/0k
2. The petitioners secured land from the respondents after securing licences from the respondents.
The petitioners allegedly constructed buildings over the land in-question from their on pockets. The respondents enhanced the rent/fee of licences off and .On. The relationship between the petitioners and respondents continuously remained peaceful till 1999. Thereafter, the respondents enhanced the rent/fee vide circular dated 9.4.2001. The petitioners being aggrieved filed representations before the respondents which were rejected by the respondents without applying their independent minds. The petitioners being aggrieved filed these writ petitions.
3. The learned counsel of the Petitioners submit that the public functionaries are duty' ound to decide the .Representations of the petitioners after applying their independent minds with reasons without fear, favour, nepotism and within reasonable time as is envisaged by Article 4 of the Constitution read with Section 24-A of the General Clauses Act. They further urge that the respondents violated the terms of their policies in which the respondents had mentioned that the respondents should enhance the rent double but the respondents in violation of their on policies, enhanced the rent arbitrarily without any reasonable Criteria from 1000 to 1300%/ They further submit that action of the respondents does not fall within the parameters of fair play.
The respondents being public functionaries are duty bound to take action keeping in view the principle of fair play. They further urge that the respondents decided the representations of the petitioners without issuing the notices to the petitioners, therefore, the impugned order passed by the respondents on the representations is also hit by principle of natural justice. They further urge that the respondents have no lawful authority to enhance the rate unilaterally without adopting any reasonable criteria.
4. The learned legal advisor of the respondents submits that the respondents i.e. Railways Board has lawful authority to pass the order of enhancement qua the rate of rent/fee. He further submits that the respondents-Board passed the impugned order being lawful authority vide letter No. MOR's- W-l 1-2000/LA/29, dated 9.4.2001 after discussion with the petitioners. He further urges that the respondents reduced the rent after discussion with the petitioners after providing proper hearing to the petitioners and reduced the rent in question qua the premises in-question i.e. 60% sq. Ft, on main road and 40% on side road. He further submits on the basis of para No. 3 of the policy that rate was fixed after numbers of Meetings with the petitioners with the consent of the Minister. He further submits that the respondents are ready to consider the cases of the petitioners, in case the petitioners shall pay the rent to the - respondents at 15% prevailing market value.
5. The learned counsel of the petitioners In rebuttal submits that the respondents admitted in report and parawise comments that the respondents have lawful authority to increase the rent on the basis of Railways Headquarter policy circular vide dated 11.8.1987. They further submit that on the basis of aforesaid policy, the respondents have only lawful authority to enhance the rent double of the existing rent. They further submit that cases of the petitioners fall in item No. 4; whereas the respondents considered the cases of the petitioners in Item No. 7. They further urge that the respondents did not take this stand in the report and parawise comments qua the new policy. The aforesaid police did net take this stand in the report and parawise comments qua the new policy. The aforesaid police letter was subsequently, amended by the respondents under the order of the competent authority, therefore, the ground which was argued by the learned legal advisor of the respondents had not mentioned in report and parawise comments, therefore, the respondents-Board has no lawful authority. They further submit that the respondents enhanced the rates off and on till 1999 which was mentioned by the petitioner in paras Nos. 7, 8 and 9 in the Writ Petition No. 921/2001 which was not denied by the respondents in their report and parawise comments. They further submit that the petitioners are ready to pay 15% market value as per policy dated 11.8.1987 mentioned in the report and parawise which would be twice rent being paid at present by the petitioners to the respondents.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
7. It is admitted fact that the respondents did not attach subsequent policy dated 9.4.2001 alongwith report and parawise comments. The impugned order passed by the respondents on the representations of the petitioners, do not contain any reason. After addition of Section 24-A of the General Clauses Act, it is the duty and obligation of the public, functionaries to decide the representations of the petitioners with reasons. It is pertinent to mention here that Section 24- A in the General Clauses Act have retrospective affect being procedure in nature. In arriving to this conclusions, I am fortified by the following judgments:- 1998 S.C.M.R. 2268, M/s. Airport Support's case.
1998 S.C.M.R. 2419, Zain Yar Khan's case.
In the aforesaid judgments, the Hon'ble Supreme Court has laid down the following principle:- "The rule is founded 0n the premises that the public functionaries deriving authority from or under law, are obliged to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within parameters of law, as applicable in a given situation."
The Hon'ble Supreme Court has laid down line to the public functionaries to act within framework of Constitution and law in Zahid Akhtar's case (PLD 1995 S.C. 530). The petitioners did not attach subsequent policy with the writ petitions, therefore, the contentions of the learned counsel of the petitioners that subsequent rent/fee was fixed by the respondents in consultation with the petitioners, have no force. The respondents must decide the representations of the petitioners after providing proper hearing to the petitioners. The impugned order passed on the representations of the petitioners clearly reveals that the same was passed by the respondents without hearing to the petitioners, therefore, the same are not sustainable in the eyes of law on the well-known principle of natural justice. In arriving to this conclusion, I am fortified by the following judgments:- PLD 1965 S.C. 90, Zakir Ahmad's case.
PLD 1987 S.C. 304, Pakistan, etc. 's case.
1983 SCM R 1208, Pakistan Chrome Mine's case.
In view of what has been discussed above, the impugned order passed by the respondents on the representations of the petitioners which is at page No. 87 in W.P. No. 921/2002 is set aside meaning thereby the representations filed by the petitioners before the respondents shall be deemed to be pending adjudication. The petitioners are directed to appear before the Chairman, Pakistan Railways in his office at 11-00 a.m. On 30.7.2002, who is directed to decide the representations of the petitioners strictly in accordance with law after providing proper hearing to the all concerned including the petitioners keeping in view the principle of fair play preferably within one month after receiving the order of this Court. However, in the interest of justice and fair play, the respondents are restrained to take any action against the petitioners till the aforesaid date.
With these observations, these writ petitions are disposed of.