P L D 2025 Lahore 749 (PLP)

JAWAD HASSAN, J.

In this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the vires of impugned order dated 30.01.2024 passed by the Respondent No.2/ Commissioner, Rawalpindi Division, Rawalpindi. a) PETITIONER'S SUBMITTIONS:

2. Mr. Arfan Ullah Malik, ASC submitted that the impugned order is illegal and without lawful authority. He further submitted that the Petitioner has been burdened with the conversion fee as per the rate based on a notification, which is still at drafting stage and has not been finally approved by the competent authority. He argued that the Petitioner must have been charged at the rate which was prevailing at the date when he moved an application before the concerned authority for the said purpose. He contended that the Respondent No.2 has dismissed the Petitioner's appeal in a slipshod manner merely stating that the rates were enhanced in June, 2023 and no one challenged these rates till to date, which is not a valid reason to reject his claim/stance. He pleaded that the provisions of Article 4 of the Constitution clearly state that it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law. He claimed that the impugned order also infringes the Petitioner's fundamental rights as enshrined under Articles 9, 18, 23 and 24 of the Constitution. He stated that since the impugned order does not mention any provision of law, hence, the same is liable to be set-aside. b) SUBMISSIONS OF THE RESPONDENTS:

3. On the other hand, learned Law Officer and learned counsel for the Respondent No.3 have opposed this petition on the ground that the impugned order has rightly been passed by the Respondent No.2 and the Petitioner is just delaying the payment of the lawfully determined conversion fee on a vague stance.

4. Arguments have been heard and record perused. c) MOOT POINT:

5. The moot point to be determined by this Court is whether the Petitioner is liable to pay conversion fee as per the rate prevailing at the date when he moved an application before the concerned authority/Respondent for the said purpose and what would be the effect of the principle of non-retroactivity in such like matters? d) LEGAL ANTHROPOLOGY OF THE PRINCIPLE OF NON- RETROACTIVITY:

6. The principle of non-retroactivity, which is most relevant here, was firstly articulated in Roman law, where, already by the end of the second century B.C. it applied in both criminal and civil law to protect the existing legal order and economic interests. The Roman statesman Cicero explained the importance of the principle of non-retroactivity in the manner that individuals should be able to rely on laws in the expectation that the State will not afterward interfere with individuals' rights. This expectation helped to ensure the equality of all before the law, guarding predictability and legal certainty. Although this principle is firmly established in criminal law, its application in administrative, civil and tax law depends upon its applicability as per the mandate of the statute/rules. The principle of non-retroactivity is actually a fundamental concept (in law) and it makes sure that a statue/law is applied prospectively, rather than retrospectively. Its basic and most important purpose is to protect rights of the individuals and organizations by preventing arbitrary or unjust application of the (relevant) law. In some cases, laws or regulations may explicitly state that they are retroactive, applying to the events or actions that occurred before their enactment whereas the changes to procedural laws or regulations may be applied retroactively, as long as they do not affect the substantive rights of the individuals or organizations. Thus, this principle is essential in ensuring that the laws and regulations are applied in a fair and transparent manner. The principle of non-retroactivity has also significant legal consequences because it helps to maintain stability in adjudication, allowing individuals and organizations to make informed decisions based on existing laws and regulations. One of its legal features is to restrict the enactment of retroactive laws. which can undermine trust in the legal system and create uncertainty. So, it can be safely stated that non-retroactivity is the legal principle that laws do not apply retroactively and ex-post facto laws are forbidden. This principle may be applied to judicial decisions as well as statutory law. e) JURISPRUDENCE OF THE SUPERIOR COURTS:

7. Now coming to the merits of the case, suffice to mention here that the Respondent No.2 has not mentioned the relevant provision of applicable law in the impugned order, which is a legal lacuna. In a number of cases, the Supreme Court of Pakistan has enunciated certain principles from time to time on similar issue. Firstly, analysis was made regarding the retrospective and prospective terminology in the legal system of Pakistan in the case of Sutlej Cotton Mills Ltd. Okara v. Industrial Court, West Pakistan, Lahore and others (PLD 1966 SC 472) wherein the Supreme Court of Pakistan has held as under: "A vested right cannot be so taken away and the appellant had a right to have his petition heard on the basis of the law prevailing on the day he filed his petition." This principle was subsequently upheld by the apex Court of the country in the case of Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 SC 506) and then also affirmed in the cases of The Karachi Development Authority, Karachi v. Works Co-Operative Housing Society, Karachi and another (PLD 1978 SC 307), Subsequently, after a long lapse of time, in the case of City District Government, Karachi v. Muhammad Irfan and others (2010 SCMR 1186), the Supreme Court of Pakistan, while discussing the issue of fiscal enactment, has held that: "...rights of the parties shall be governed/decided as per the law prevailing at the time when cause of action has accrued, particularly in the matters pertaining to fiscal disputes, unless manifestly intention of the law is otherwise..." Then, in the judgment reported as Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others (PLD 2011 SC 347), it has been further observed by the apex Court that law does not recognize any retrospective enforceability of a fiscal measure and issuance of a notification is not of any significance in legal importance till it is published in an official Gazette. Recently, in the case of Taisei Corporation and another v. A.M. Construction Company (Pvt.) Ltd. and another (2024 SCMR 640) the Supreme Court of Pakistan has discussed in detail the principle of non-retroactivity and given the following verdict: "A new law that only deals with the procedure and does not in any way affect the substantive rights of the parties applies both prospectively to future proceedings as well as retrospectively to pending proceedings. However, a law that takes away or abridges the substantive rights of the parties only applies prospectively unless either by express enactment or by necessary intendment the legislature gives to it the retrospective effect." (underlying is for emphasis) In the said case, the apex Court has emphasized that even procedural laws must not indirectly impair substantive rights unless explicitly provided and further observed that: "The proper approach to the construction of a statute as to its prospective or retrospective applicability, in the absence of legislature's express enactment or necessary intendment, is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations." The issue of retrospective and prospective affect has also been constantly dealt with by various High Courts in the judgments reported as Mst. Sobia Hanif v. The Collector (Deputy Commissioner), Lahore District, Lahore and 5 others (1993 CLC 2073). Major (Rtd.) Muhammad Suleman Khan v. D.C./Registrar, Lahore District (2002 CLC 226), Sardar Muhammad v. Province of Punjab through Sub-Registrar and another (2017 CLC Note 49) and Mrs. Nighat Saimi and another v. Province of Sindh through Secretary Revenue and 10 others (PLD 2017 Sindh 596). But this issue has authoritatively been discussed by this Court, while relying on a number of earlier judgments rendered by the superior Courts of the country from time to time, in the case of Syed Ali Shah v. Government of Pakistan through Ministry of Defence and 2 others (1994 CLC 369). Relevant (11) paragraph 8 of which is reproduced hereunder for ease of the matter: "

8. From the facts which are almost admitted it stands established that the application of the petitioner for seeking division of the property in question into commercial plots was dealt with granted at the rate of Rs.871.20 per sq. metre during the years 1984 to 1986. Decision was duly conveyed to him. He deposited the amount of initial premium as per demand of the respondents. Applying the principle of promissory estoppel as laid down in the case of "Arsalla Khan" (PLD 1976 SC 581) (supra) as this case does not fall within any of the exceptions, the respondents are estopped to enhances the rate or to direct the resumption of the property in question and alter or modify the order of commercialization merely because the matter has been pending with them. Admittedly due to internal dispute, the finalization of the case was delayed which dispute has got no relevancy with regard to the matter in issue and at any rate the petitioner cannot adversely suffer due to delayed disposal of his application. Therefore, I hold that respondents were estopped to pass the impugned order and demand price for commercialization at an enhanced rete." (emphasis added) Thereafter, in a subsequent case reported as Pakistan Mobile Communication Limited v. Abrar Ahmed and 4 others (2019 CLD 578), a Division Bench of this Court has further discussed the aspect whether the procedural rules could apply retrospectively to an already established BTS tower and given the following observations: "We have gone through the whole record and found that admittedly the BTS Tower was installed and functional since 2005 (EPA and other Department's report and parawise comments). The Regulations were made by the EPA in the year 2012 for inter alia BTS Towers and the BTS Tower Policy in the year 2013 which are not applicable to the case of the Appellant because they cannot have retrospective effects. It is noted that Section 1 of the Regulations states that these Regulations shall come into force at once which were made on 05.12.2012 and cannot apply to the case of the Appellant retrospectively. f) CONCLUSION:

8. Since the Respondent No.2 has not gone through the principles settled by the superior Courts of the country in the aforesaid judgments, while passing the impugned order in a hasty manner, therefore, it is reasonable to say that the impugned order does not fulfill the ingredients of a speaking order, which goes against the principles settled in the case of Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) wherein the Supreme Court of Pakistan has already explained the need and importance for passing of a speaking order by observing as under: "There is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable substance in the petition which is accepted", should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached." Similarly, the apex Court of the country in various judgments, has also directed several authorities to adhere to the above-mentioned principle, while passing a speaking order with reasons and after keeping in view the facts and circumstances of the case, applicable law as well as precedents, if available. In this context, reliance is placed on the case reported as Town Committee, Piplan v. Muhammad Hanif and others (2008 SCMR 723). It is also worth mentioning to note here that every citizen of Pakistan has an inalienable right to be treated in accordance with law as envisaged by Article 4 of the Constitution. Hence, it is duty and obligation of every public functionary, including the Respondent No.2, to act within the four corners of mandate of the Constitution and pass a speaking order.

9. In view of the above discussion, this writ petition is allowed and the impugned order dated 30.01.2024 is hereby set-aside, being non-speaking one. The matter is remitted back to Commissioner, Rawalpindi Division, Rawalpindi/Respondent No.2 with a direction to decide it afresh strictly in accordance with law (rules, regulations and policies) and specifically the law/principles laid down in the aforesaid judgments, which are binding on him under Articles 189 and 201 of the Constitution, after providing proper hearing to all concerned including the petitioner, through a speaking order, within one month from the receipt of certified copy of this order. UN/M-86/L Petition allowed.