1993 PLP 717 (CLC)

The, facts leading to the filing of the above petition are that the petitioners are constructing a hospital at S.N.C.C. 4/4, Shaheed‑e‑Millat Road, Karachi, namely Hill Park, General Hospital. The plot in question was a commercial plot purchased from the market at a very high cost and is not an amenity plot, the plan for construction of hospital was approved vide Letter No.BCA/DCB‑10/Prop:401/84/April/19, dated 6‑4‑1985. The original plan was approved for Car Park, ground plus five storeys where the hospital has started functioning partially. The case of the petitioners, as set out in the petition, is that on 20‑12‑1987 an application was submitted for an additional floor to accommodate essential areas for hospital such as cold storage for life saving medicines, blood bank, maintenance and boiler rooms, nursing station and resident medical staff Rest Rooms to Director‑General who on the very same application passed the orders:‑‑ "One additional floor may be allowed after satisfying the stability of structure." The respondent No.1 after satisfying itself, directed the petitioners to pay composition fee of Rs. 65,904, extra floor charges of Rs.60,905 and challan was issued on 3‑5‑1988 which were duly paid. The petitioners also paid a sum of Rs.24,362 to Karachi Cooperative Housing Societies Union Limited for additional storey as per their requirement. . On 3‑8‑1988 the respondent No.1 addressed an order/advice to the Managing Director of the petitioners to withhold the construction activity till a so‑called Technical Committee constituted for scrutiny of additional floor and forming a policy for the same decides the matter. It was also stated that the matter will be decided soon. The petitioners addressed letters on 6‑8‑1988 and 3‑9‑1988 acknowledging the above letter and reiterating the urgent need of hospital with a request to proceed with construction. On meeting the new Director‑General, another letter dated 28‑9‑1988 was addressed to him emphasizing the essential need of the services required and the accommodation for the same purpose. The respondent No.1 vide its letter dated 31‑12‑1988 informed the petitioners that request for early decision cannot be acceded to until and unless policy in that regard is framed by the Government of Sindh. It is their further case that on 4‑1‑1989 the petitioners addressed another letter requesting for urgent decision in view of the essential needs of hospital as it had started functioning and the lack of services was damaging performance and efficiency of hospital. The letter also emphasized daily rise in cost of material and later on and the loss incurred by the petitioners due to stoppage in the construction activity under the advice/order of the respondents. It is their further case that the respondent authority has approved plan in respect of another hospital on the same road i.e. Medicare for ground + 6 and in the city to various builders for essentially commercial ventures. The respondents have failed to pass an order up to the filing of the above petition. In these circumstances, the petitioners have filed the above petition. The respondent No.1 filed counter‑affidavit. The respondent No.1 averred that the proposed building plan for car parking in basement plus ground and 5 upper floors for hospital were approved by the respondent on 6‑4‑1985. It is their further case that later on after construction, the petitioners applied for approval of plan of additional sixth floor and paid the additional floor charges. The respondent No.1 contended that the plan for the hospital was approved when there was no restriction imposed by the Government on construction of multistoreyed buildings, whereas after receipt of order from Government of , Sindh imposing restriction/bar on construction of such buildings, this respondent is not competent to grant any permission or approve the building plan for the additional sixth floor as per request of the petitioners. The respondent No.1 further contended that the approval of plan for the additional sixth floor was withheld by the respondent in conformity to the orders of Government of Sindh and no approval of the plan for additional sixth floor was awarded in favour of the petitioners. We have heard the learned counsel appearing for 'the parties on 5‑11‑1992 and reserved for judgment. After hearing the learned counsel for the parties, the respondent No.1 filed an application under section 151, C.P.C. praying that a Circular No. Admntr/Secy/256/92 dated 8‑11‑1992, be taken into consideration. We issued notice to the petitioners as well as Mr. A.A. Muhammadally, Additional Advocate‑General, Mr. Muhammad Sharif, learned counsel appearing for the petitioners vehemently urged that the building plan for additional floor was not only approved but acted upon. He further contended that the circular is not applicable to the facts and circumstances of the case. Mr. AA. Muhammadally, stated at the Bar that the Sindh Government has no objection for permitting the petitioner to raise additional floor on the plot. On the other hand, Mr. Muhammad Iqbal Memon, learned counsel appearing for respondent No.1 submitted that circular is applicable to the petitioner's case. It is well‑settled proposition that a notification or a circular or executive order cannot operate retrospectively to impair the existing right or to effect an order of the competent authority even if the notification or circular or executive order be expressly so designed. In Shahbaz v. The Crown (PLD 1956 FC 46) the Government had ordered the remission of the prison sentence of Shahbaz with effect from 14th of August, 1954, but before the order was acted upon, it was rescinded on 13th of August, 1954. It was held that the order canceling the remission was not open to any objection. In Lt: Col. G.L. Battacharya v. The State and others (PLD 1964 SC 503), which was also a case of remission of sentence under section 401 of the Code of Criminal Procedure, it was held that the remission of sentence becomes effective when duly communicated to the Superintendent of Jail who is duly bound to give effect to it in accordance with the Prisoners Act. In Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) the order fixing the basic salary at Rs.1,000 per mensem for the respondent Himayatullah Farukhi was made by the President on 1‑10‑1959. The order of the President was duly communicated to the Ministry of Communications and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the respondent. By the time, the President made the second order on 26‑8‑1962 revoking the earlier one, the Constitution of the Islamic Republic of Pakistan, 1962, had been enforced which contained a protective provision in Article 178 thereof that the terms and conditions of service of a person on the service of Pakistan as regarding his remuneration and age, shall not be varied to his disadvantage. The President's subsequent order was declared as without lawful authority. It was held at page 412 as follows:‑‑ "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass order to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." In the present case, the petitioners applied for approval of building plan for additional sixth floor. This plan was approved by the respondent No.1 subject to payment of composition fee amounting to Rs.65,

904. The petitioners also paid a sum of Rs.60,905 as extra floor charges to the respondent No.1 and also paid a sum of Rs.24,362 to the Karachi Cooperative Housing Societies Limited. The approval of the plan has taken legal effect, and in pursuance thereof certain rights have been created in favour of the petitioners, such an order cannot be withdrawn or rescinded to the detriment of these rights. It is also well‑settled that a circular or a notification or an executive order cannot operate retrospectively to impair an existing right. For the reasons stated above, we would allow the above petition to the extent of declaring that the restriction from raising construction of an additional sixth floor is without lawful authority and it does not have any effect on the validity of the approved plan. In the circumstances of the case, the parties are directed to bear their own costs. AA./N‑500/K Order accordingly.