1999 PLP 1579 (SCMR)

MUNAWAR AHMED MIRZA, J.

This petition for leave to appeal is directed against judgment dated 5-5-1998 passed by Lahore High Court, Rawalpindi Bench, in Writ Petition No.2913 of 1997.

2. Relevant facts briefly mentioned are that petitioner (Capital Development Authority) had leased out Plot No.

13. Murkaz G-8. Islamabad, to respondents on 7th June, 1978 for construction of Cinema against payment of Rs.7,15,555.56 (Rupees seven lacks fifteen thousand five hundred fifty-five and paisas fifty six only). Subsequently, respondents applied for conversion of his use from cinema to residential flats consisting of five storeys. Petitioner allowed request of respondent subject to payment of conversion charges at the prevalent rate of Rs.3,140.76 per sq yard vide order dated 11-11-1992. Respondents entered into correspondence seeking reduction of conversion charges and besides limiting it to the extent of constructed area. Later respondents opted for construction of basement ground floor plus three storyes along and submitted building plan which was, however, approved. Record reveals that after lapse of considerable period on 12-12-1996 respondents again applied to the petitioner for granting them permission to construct five storeys building on payment of conversion, charges at the reduced rate of Rs.2,198 per sq. yard. It appears that without any sanction or approval of building plan: the respondents started construction of fifth storey whereupon petitioner issued notice requiring the respondents to remove illegal construction. The respondent opposed the notice by replying that they were within their right to construct fifth storey as the ground floor which is meant for parking could not be counted towards floor rating. The respondents to avoid threatened action regarding demolition of fifth storey in pursuance of notice issued by the Capital Development Authority had filed Constitutional Petition No.2913 of 1997 before Lahore High Court, Rawalpindi Bench which was accepted vide judgment dated 5-5-1998, in the following term:-- "For all the aforesaid reasons, the instant Constitution petition is accepted and the respondents are directed to act in accordance with law and to permit the petitioners to raise construction of a 5 storey building at the site of the plot in question exclusive of an area occupied by basement, car park and the lifts. The respondents are restrained from interfering in the construction raised at the site by the petitioners under any pretext whatever. So far as the question of payment of conversion charges is concerned, the petitioners as aforesaid have already accepted to pay at the rate of 2198 per sq. yard. In the peculiar circumstances of the case, the parties are left to bear their own costs. " Above decision has been assailed through present petition for leave to appeal.

3. We have heard Sardar Muhammad Aslam, Advocate Supreme Court, for petitioners and Mr. Ali Sibtain Fazli, Advocate Supreme Court, for the respondents. From the submissions made by learned counsel for parties following questions arise for determination:-- (i) Whether respondent without any approved building plan or prior sanction of the concerned Municipal Authority could raise construction of fifth storey? (ii) Whether the High Court- had lawful jurisdiction to entertain the grievances of respondents lessee and without existence of any tangible right could authorize construction of fifth storey in the demised building? (iii) Whether learned High Court without existence of approved plan was justified to base findings on opinion of legal adviser, which apart from being internal departmental arrangement was privileged communication having no binding effect? (iv) Whether respondents of their own choice could arbitrarily, determine conversion charges and construct building without proper approval of concerned Municipal Authority? (v) Whether or not grant of approval is discretionary matter of respondent which, however, is regulated by rules? (vi) What is the criteria for conversion charges? Whether such charges are payable on the rate prevalent at the time when application for conversion is submitted or when sanction is actually accorded by competent Authority? (vii) Whether High Court while deciding rate of conversion could dilate upon disputed factual controversy existing between the parties, without resorting to evidence, and what is its effect?

4. The above points of considerable importance and would affect large number of cases. Therefore, leave is granted.

5. Parties are directed to maintain status quo pending disposal of the appeal. It is, however, observed that, if parties so desire, they may negotiate settle the matter mutually. H.B.T./C-21/S???????????????????????????????????????????????????????????????????????? ??????????? Leave granted