1998 PLP 1394 (CLC)

Dasti Muhammad Ebrahim for Respondent No. 1 J. J. Vishno, Addl. A.‑G. on Court's Notice. Date of hearing: 11th November, 1997 KAMAL MANSUR ALAM, J.‑‑‑The petitioners in this case purchased on 31‑5‑1977 a residential Plot bearing No. B‑I11, measuring 400 sq. yards, situated in Scheme No.24 Gulshan‑e‑Iqbal, Karachi, from one Mahmood Construction Company who were originally allotted the same alongwith several other plots by the respondent No. l .on I9‑5‑1976. The petitioners having paid full price of the plot to the said Mahmood Construction Company and cleared the dues of the K.D.A. (respondent No. l), the K.D.A. executed lease deed, dated 3-6‑1977 in favour of the petitioners. Later, the petitioners constructed house on the plot which was duly approved by the concerned authorities on 11‑12‑1982. Almost ten years after the plot had been leased out by the K.D.A. to the petitioners, they received notice from the respondents demanding payment of occupancy value at the enhanced rate. It is this demand of increase in the occupancy value which is challenged by this petition. Mr. Dasti Muhammad Ebrahim, the learned counsel for the respondents submitted that by a Resolution passed in the meeting of the Governing Body of the K.D.A. held on 29‑11‑1975, recommendation was made to the Government for the enhancement of the occupancy value (reserve price) of residential plots in the locality in which the petitioners plot in question was situated from Rs.17.50 per sq. yard to Rs.80 with effect from 1‑1‑1976. He explained that as the power to increase the price of the land vested in the Provincial Government the resolution was forwarded to that Government for approval. The resolution was accorded approval by Notification, dated 18‑6‑1977 published in the Sindh Government Gazette, dated 23rd June, 1977 and the increase in the occupancy value was made effective retrospectively from 1‑1‑1976. It was argued that as the rate of occupancy value was increased from 1‑1‑1976 which was prior to the date of allotment of the plot to the original allottee and much before the execution of the lease deed in favour of the petitioners, the petitioners were liable to pay the enhanced occupancy value of Rs.80 per sq. yard instead of Rs.17.50 per sq. yard that they actually paid, as such, it was contended, that the impugned notice demanding payment of differential between the old rate of occupancy value actually paid by the petitioners and the enhanced rate that they were liable to pay was issued. Admittedly, the Governing Body of the K.D.A. had no authority to increase the reserve price of the land of its own and all that it could do was to approach the Government for effecting such increase. Accordingly the said resolution of the Governing Body was merely in the nature of recommendation. This recommendation received Governments' approval by the notification, dated 18‑6‑1977 published on 23‑6‑1977 and, therefore, it was only on such approval being accorded that the enhanced rate, became effective. No doubt, under this notification the approval of the increase in the reserve price has been given retrospective effect from 1‑1‑1976, but that would not be of any avail to‑the respondents, for, it is well‑settled that executive actions like the present, where vested interests of parties are involved, would take effect prospectively and not retrospectively. Consequently, whether the increase was made effective from the date of the notification or the date of its publication in either case it would be much later in time to the allotment of the plot to the original allottee on 19‑5‑1976, purchase of the plot by the petitioners on 31‑5‑1977 and execution of the lease deed in favour of the petitioners on 3‑6‑1977. Reference may here be made to the case of Abdul Majeed and others v. Karachi Development Authority and others (1992 MLD 2401) which is on all fours with the present. There too in somewhat similar circumstances the effect and implication of the aforesaid notification came up for consideration before a learned Division Bench of this Court and while dealing with the question about the date of applicability of the increase in the reserve price of plots approved by the said notification, it has been observed that, "

It is, therefore, apparent that on the passing of the Resolution No.550 by K.D.A. on 20‑12‑1975, the rates did not stand enhanced as K.D.A. on its own could not enhance the rates of occupancy value. The enhancement could only become effective on approval of the enhanced rates of occupancy value by the Sindh Government. That was done on 18‑6‑1977 by the said Notification, which was published in the Sindh Government Gazette on 23‑6‑1977. In our view, therefore, the occupancy value at the enhanced rates could not be charged from the petitioners as the allotment as well as the lease in favour of the original allottee, Abdur Rafai Samdani, had been made/executed much prior to the date of publication of the Notification by the Government, approving the enhancement of rates. The submission of the learned counsel for K.D.A. that the Notification is not retrospective and will be deemed to be effective from 1‑1‑1976 as mentioned in the Notification, is devoid of any merit. The law is well‑settled that a Notification by the Government or an executive act cannot take retrospective effect and takes effect prospectively only and just because the word 'retrospectively' has not been used in the Notification it does not make any difference. The Notification, dated 16‑6‑1977 states that it will be effective from 1‑1‑1976, but it cannot take effect from the date as it would amount to giving retrospectivity to the Notification, which cannot be done under the law." We are in respectful agreement with the above finding. We accordingly allow the petition and declare the demand of the respondents (K.D.A.) contained in its letter, dated 15‑8‑1987 and challan, dated 27‑7‑1987 in respect of the aforesaid differential in reserve price/occupancy value of the said plot to be without lawful authority and of no legal effect. The above are the reasons for the short order which we passed on 11‑11‑1997. A.A./R‑45/K Petition accepted