2004 PLP 521 (YLR)

7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

8. It is better and appropriate to reproduce the operative part of the policy issued by the respondents vide notification dated 2-7-2001 and corresponding inter se between the respondents to resolve the controversy between the parties:-- (Contents of Clause of Policy dated 2-7-2001) "conversion of land use for projects run by charitable organizations operating on no profit and non-commercial basis and exempted from income-tax may in the public interest be exempted by the Government from payment of Commercialization fee." Clause 21 of Agreement:-- Contents of letter dated 27-8-2002. "Approval of construction plans. Exemption of Debris Dumping Fee.

The project is being executed in such a manner that neither the debris will be dumped nor the same will be disposed of, outside our premises. The debris dumping fee may therefore please be exempted." 1.1 Building fee @ = Rs.7,77,237 Rs.3 per sq. ft. 1.2 Debris Dump- = Rs.1,29,540 ing Fee a .50 ft. At pages 24 and 25 (contents of Jamabandi for year 1977-78). (Contents. of letter dated 27-9-2002) 2-1 The land is owned by the Government of Punjab. 2-2 It was leased to Pakistan Railways for the constructions of official residences. 2-3 The Pakistan Railways has now entered into an agreement with Ajami (Pvt.) Ltd. to commercialize the said land. 2-4 The permission of B.O.R. Punjab in this respect is not present on our record. 2-5 Decision of competent authority on applicability of Local Government Ordinance, 2001 on Pakistan Railways land jurisdictions and on the, conversion fee as per commercial policy of the Punjab Government.

3. Since the developer have applied for the approval of said plan therefore, this is in the fitness of affairs that this office may proceed in accordance with decision arrived at by the Government. It is therefore, requested to please communicate. An early reply in this respect is solicited please." (Contents of letter dated 7-10-2002) "The Tehsil Municipal Administra tion is of the opinion that this site being in the close proximity to the Railways Station and located at the main road junction would be a great hazard in respect of traffic, especially at the time of arrival and departure of trains. Perusal of the record further revealed that the land where the Shopping Mall is to be constructed is the property of the Government of Punjab, leased to Pakistan Railways for construction of a Rest House and Daak Bungalow. The Railways Authorities without obtaining any N.O.C. from the Board of Revenue, Punjab for commercializing the said property, have entered into a contract for constructions of the said shopping mall. The management of the proposed shopping mall have not submitted a site building plan for approval of the Tehsil Municipal Administra tion. In response, the Tehsil Municipal Administration, vide Letter No.TO(P&C)1305/C, dated 27-9-2002 have acknowledged receipt of the site-plan and has asked management to deposit a sum of Rs.9,06,777 in accordance with rules. This is scrutiny fee and does not mean an automatic approval of the site-plan The fee has not been deposited to date. Tehsil Municipal Administration vide their letter No.TO(P&C) 1303/C, dated 27-9-2002 has explained the whole situation to the Secretary, LG&RD Department, Government of the Punjab, Lahore and have requested for further instructions in the matter as no approval of the site-plan can be given without permission of the Board of Revenue, Punjab in respect of commercialization of said piece of land by Pakistan Railways. Decision of competent authority on applicability of Local Government Ordinance, 2001 on Pakistan Railways being a lessee of Board of Revenue, Government of Punjab and on the conversion fee as per commercialization rules of the Punjab Government has also been solicited. " (Contents of letter dated 14-12-2002) at page 29. "Since this office has already referred the case to Government of Punjab vide this office memos. No.TO(P&C)/90, dated 8-5-2002 and No.T/lj03/C, dated 27-9-2002, therefore, the plan referred to above is kept pending till the receipt of decision of Secretary, Government of the Punjab, LG&RD Department, Lahore, so that all requisite legal formalities are catered for." (Contents of letter dated 13-1-2003) at page 30: "Tehsil Municipal Administration, Multan City and Faisalabad , City have been directed to defer the collection of commercialization and other fee/charges from the Ministry of Railways and not interfering with the working operation of the project in hand on the Pakistan Railways land at Multan and Faisalabad till further order. I am further directed to add that request of the Ministry of Railways for exemption from commercialization fee is being considered by the Government of Punjab and the final advice will be issued in due course. The project of Pakistan Railways in hand are being allowed to operate till final determination of the issues under consideration by the Government of Punjab." (Contents of letter dated 18-1-2003) at pages 32-33: "The Tehsil Municipal Administration, Faisalabad City has been directed to defer the collection of commercialization fee and other charges from the Ministry of Railways and not intering with the working/operation of the project in hand on the Pakistan Railways Lands at Multan and Faisalabad till further orders. In the last meeting held under the chairmanship of the Secretary, Local Government and Rural Development Department the T.M.A., Faisalabad City had raised the following points:-- (a) The land where Railways intend to build the said Dubai Shopping Mall is the property of the Government of the Punjab leased out to the Railways for the specific purpose of construction of Daak Bungalows and others. It is not the property of Pakistan Railways as erroneously referred to. No permission from the. Government of the Punjab in the shape of an N.O.C. from the Board of Revenue, Punjab has been obtained to change the status of land use. (b) The commercial activities that are to be carried out by the Railways Authorities, in accordance with various statutes, are for the provision of facilities to the Railway passengers on railway platforms etc. and not for carrying out regular market oriented commercial activities like constructions of Shopping Malls, etc. No N. O. C. from the requisite quarter is on record. (c) The commercialization policy of the T.M.As. is strictly in accordance with the directions of the Government of the Punjab. The commercialization fee, so calculated, is also strictly in accordance with rules. Any change in the fee can only be done through appropriate legislation by the Provincial Assembly. (d) The approximate commercialization fee calculated in respect of Dubai Shopping Mall, :Faisalabad is to the tune of Rs.4 crores, 55 lakhs. This is a substantial revenue, to be generated by the T.M.A. to be utilized in the generation of its development activities. Any reduction if so, made, would not be in accordance with law and to against the spirit of the Devolution Plan, where the Local Governments have to generate their own revenues for development activities. In the light of above, it is requested that the said letter, referred to above may kindly be withdrawn and Railways Authorities directed to pay the requisite fees to the Municipal Administration .before commencing with any construction work." (Contents of letter dated 6-2-2003) at page 34: "It is therefore, incumbent upon you to adhere to the instructions of the Punjab Government conveyed to you in public interest vide letters of even numbers dated 13-1-2003 and 18-1-2003. After examining the issue threadbare by this Department, your views/reply amount to defying the policy instructions issued by the Provincial Government. As regards the issue of ownership of land and seeking concurrence of Board of Revenue, it is stated that necessary action has been initiated. It is reiterated that the letter under reference was issued to facilitate completion of on-going project as an interim relief i.e. till such time that policy for commercialization is amended allied matters are finalized at the end of the Provincial Government." (Contents of letter dated 7-2-2003) at page 35: "The directives of the Government of Punjab are to be implemented in letter and spirit." (Contents of letter dated 17-2-2003) At page 36: "Please refer your Letter No. Z-001/392, dated 7-2-2003 on the subject noted above:--In pursuance of the directive of the Government of the Punjab LG&RD Department vide dated 13-1-2003 and subsequent directive of even dated 6-2-2003 conveyed by the Tehsil Municipal Officer, T.M.A., Faisalabad City vide dated 7-2-2003, the construction plans for subject site are provisionally approved by the competent authority vide order dated 17-2-2003 subject to the conditions stated in the said directives alongwith those given." It is also better and appropriate to reproduce section 4 of the aforesaid Ordinance: "Local Government to work within Provincial Framework.

(1) The Local Governments established under this Ordinance shall function within the Provincial framework and adhere to the Federal and Provincial laws." In the aforesaid inter se corresponding between the respondents are put in juxta position, then it is crystal clear that respondent No.1 had approved the building plan under the direction of respondent No.3 in violation of policy issued by competent authority vide notification dated 2-7-2001. It is settled principle of law that when the competent authority has passed the order under the dictate of superiors then it is not sustainable in the eye of law. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in "Ghulam Mohy-ud-Din's case" PLD 1964 SC

829. After addition of section 24-A in the General Clauses Act, it is the duty and obligation of public functionaries to decide the applications of citizens with reasons. The impugned order of respondent No.3 does not contain any reason, to direct respondent No. 1 to approve the building plan of respondent No.2 in violation of policy issued by the competent authority, therefore, the impugned order of respondent No.3 is not sustainable in the eye of law as per principle laid down by the Honourable Supreme Court in Messrs Airport Support Services' case 1998 SCMR 2268. It is also settled principle of law that the Executive Authority must have been exercised power in accordance with law in view of Article & of the Constitution which prescribed duty on each and every public functionary to act in accordance with law and not in derogation of law. It is also settles. principle of law that even the Chief Executive of the country is bound to obey the mandate of Constitution in view or Article 5(2) of the Constitution as per principle laid down by the Honourable Supreme Court in "Ch. Zahur Elahi. M.N.A. v. Mr. Zulfiqar Ali Bhutto and others" PLD 1975 SC

383. The executive authority prescribed under section 4(2) of the aforesaid Ordinance is of supervisory nature, therefore, the Provincial Government has to formulate the policy by exercising powers under section 4(2) of the aforesaid. Ordinance. Respondent No.3 has exercised executive authority not in public interest but in the interest of respondent No.2, therefore, respondent.No.3 has not exercised discretion in accordance with law on well-known. maxim fairplay, equity and justice, as per .principle laid down by the Honourable Supreme Court in Muhammad Iqbal's case PLD 1991 SC 35 and "Capt. (R) Abdul Qayyum's case PLD .1992 SC

184. The public functionaries are duty bound to act in accordance with law as per principle laid down by the Honourable Supreme Court in "Utility Stores Corporation's case PLD 1987 SC

447. The objection raised by the learned counsel of the respondents that the writ petition is not maintainable, has no force as the petitioner has not filed this writ petition for the enforcement of contract, in fact the petitioner has challenged the vires of order of public functionary qua the impugned order in this writ petition. The Honourable Supreme Court has laid down the following principle qua exercise of power by the public functionary in Shaukat Ali's case PLD 1997 SC 342:-- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic concept of fairplay and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure that no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways, will be treated fairly." The objection raised by the learned counsel of the respondents that the petitioner has alternative remedy to approach the Provincial Local Government Commission, has also no force as the Commission is not functioning at present moment in view of the statement of learned Law Officer. The submission of learned Law Officer has also no force as is evident from the aforesaid corresponding between the respondents Nos. 1 and

3. Respondent No. 1 is the only competent to exempt any tax after applying its independent mind under section 16 of the said Ordinance and not under the dictate of respondent No.3. In view of what has been discussed above, this writ petition is accepted with no order as to costs and the impugned orders of respondents are set aside. M.H./M-2083/L Petition allowed.