2008 PLP 2058 (YLR)

On 7-2-2007, this Court has passed order, directing the C.D.G.K to provide the challan to the petitioner of commercialization fee at the rate prevailing on 25-1-2007. It was further observed in d the said order that the amount mentioned in the challan shall be deposited by the petitioners with the Nazir of this Court, who on receipt of the amount would invest it in any profit bearing scheme of the government for the benefit of succeeding party. After lapse of more than two months, Manzoor Ahmed has filed a statement on behalf of C.D.G.K. Along with his statement he has also filed a letter of the D.D.O. (Commercialization) addressed to him in which assessment has been made. Para. 2 of the said letter reads as under:-- ..In this regard it is submitted that the said case of change of land use is under process with his office and M.P.G.O. C.D.G.K will issue the challan for payment of fee for change of land use of said plot subsequent approval of case by competent authority subject to completion of codal formalities by the applicant which are as follows: (i) NOC from concerned UC Nazim is required. (ii) Lease deed is required. (iii) Site plan is required. (iv) Allotment order of said plot etc., is required. (v) Rectified undertaking on Court paper is required. (vi) Subsequent to approval of case the challan will be issued as follow: Change of Landuse Fee = Area x Rate = 200 Sq.Yds x Rs. 8000 per Sq.Yd. = Rs.1,600,000 Town Planning Scrutiny = Area x Rate = 200 Sq.Yds x Rs.100 per Sq.Yd = Rs.20,000 Total Amount to be paid = Rs.16,00,000 + Rs.20,000 = Rs.16,20,000 (In words: Rupees sixteen lac twenty thousand only)

2. Besides the assessed commerciali zation fee, it was stated in the letter that the challan will be issued for change of landuse of the subject plot after subsequent approval of the case by the competent authority subject to codal formalities. This letter ex facie is contemptuous. This Court has clearly directed the C.D.G.K. by its order dated 25-1-2007 to issue challan to the petitioner. The plea of the petitioner in the petitioner is that the entire road on which the plot in question is located has been commercialized. The plea of the petitioner was accepted by this Court in another petition filed by Capt. S.M. Aslam v. K.B.C.A., reported in 2005 CLC

759. The C.D.G.K. has preferred a petition for leave to appeal before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court of Pakistan has granted leave, but has not granted any stay in the matter leave granting order of the Honourable Supreme Court is not a decision or judgment in terms of the Article 189, of the Constitution. It may be observed that. the Article 189 of the Constitution speaks that the decision of the Honourable Supreme Court is binding on the all Courts, but at the same time there are chain of authorities where it has been held that leave granting order is not decision/judgment in terms of Article 189, and law declared by the High Court binds the parties unless such decision of the High Court is set aside by the Honourable Supreme Court in appeal. Admittedly the referred judgment of this Court has not been set aside by the Honourable Supreme Court and no stay has been granted. In the given circumstances this Court has passed an order on 7-2-2007 with the sole objection to protect the interest of both the parties. This order has not been appealed against and has attained finality and the officers of the C.D.G.K. have wilfully violated the said order and instead of issuance of challan the DDO (Commercialization) has addressed a letter requiring the petitioner to seek further NOC from different authorities. Once the challan is issued, no further formalities are required and Manzoor Ahmed, when confronted with this situation could not offer any explanation. Manzoor Ahmed states that on deposit of this amount, the petitioner has to undergo again with the codal formalities, which is very strange. No objection of any nature has been raised by the C.D.G.K. in regard to the approval of the commercialization plan, except that the petitioner was required to pay the commercialization fee, which petitioner disputes on the ground that such fee cannot be charged. It is not in dispute as to whether the premises, which is being constructed for commercial use is not on commercial road. The assessment has been made on the basis of' the material which the petitioner has admitted to the concerned department. Further requirements as demanded are unjustified as demanded are unjustified.

3. We, therefore, direct the petitioner to deposit the amount of commercialization fee mentioned in the letter of the DDO (Commercialization) with the Nazir of this Court within two weeks from today, which amount on deposit shall be invested by the Nazir with any Government profit bearing scheme for the benefit of the succeeding party. On deposit of the amount the C.D.G.K. shall give the sanction of requisite commercialization plan within a week and report compliance. We further warn the officers of the C.D.G.K. to comply with the orders of this Court in future in letter and spirit. H.B.T./S-40/K Order accordingly.