2008 PLP 860 (CLC)

ALI AKBAR QURESHI, J.

Writ Petition 25204 of 2005 filed by petitioner assails the legality of letter, dated 19-5-2000 purported to have been issued by the Lahore Development Authority with reference to payment of commercialization fee in respect of Plot No.5-C/3, Gulberg-III, Lahore.

2. Petitioner claiming to be the owner of a residential Plot No.5-C/3, Gulberg-III, Lahore, measuring about 6 Kanals, 17 Marlas with a view to getting said plot commercialized, approached respondent No.1 on 25-5-1994, and consequent upon the approval of commercialization by respondent No.5' on 22-8-1994, vide Letter No.1247, dated 2-5-1995, the petitioner was called upon to deposit a sum of Rs.4,228,472 towards commercialization fee on the subject. Petitioner asserts that his request for payment of aforesaid charges within four instalments was acceded to by the L.D.A., and accordingly, he made payment of initial two instalments amounting to Rs.2,228,472 by means of deposit challans Annexures "C and C.1". As regards, non-payment of remaining amount of Rs.2,000,000 respondent No.1 purported to have imposed surcharge for Rs.40,

833. Petitioner is stated to have approached the concerned functionaries for withdrawal of the surcharge but his request did not find favour and declined by respondent No.3 vide Letter TP-Misc.2685/524, dated 16-5-1997. Rather petitioner was required to make payment of the balance commercialization fee amounting to Rs.2,408,333 including surcharge. Consequently, petitioner paid the aforesaid amount vide Annexures "F" and "F.1".

3. Subsequently, by means of an other Letter TP-Misc.1520/153, dated 20-8-1997 conditions regulating the commercialization granted by respondent No.5 on 22-8-1994 Were communicated to the petitioner. And in pursuance thereof, petitioner with the intention of construction a hotel on the plot, is purported to have solicited the requisite no objection certificate from WASA and sanction for the proposed project from respondent No.1. Accordingly, sought for no objection certificates were issued by WASA and L.D.A. vide letters, dated 17-9-1997 and the proposed building plan too was approved and sanctioned by Director, Town Planning-I, vide letter, dated 17-11-1997 enabling the petitioner to undertake the construction at the site and also sold certain portion of the plot in question as commercial property.

4. And at that particular juncture, petitioner received a letter dated 19-5-2000 from respondent No.4 indicating that petitioner's case was reviewed by the commercialization committee in its meeting held on 6-4-2000 with the recommendation `that commercialization fee was not charged at the prevailing rates of Gulberg-III". And in pursuance thereof, further demand for Rs.5,128,019 inclusive of the alleged balance amount and interest @ Rs.17.5% per annum for the period from 5-10-1994 to 28-4-2000. Being aggrieved thereof, petitioner filed a representation on 2.0-6-2000 to respondent No.2 to assail the contents of the demand raised, and was replied in terms of letter, dated 5-10-2000 with the observations "your case was again examined in the Commercialization Committee meeting held on 21-6-2000 and the Committee waived of the surcharge and decided to recover actual amount of Rs.2,598,084", And the petitioner was required to deposit fee immediately.

5. According to the petitioner, the matter did not end here as he received yet another notice/letter, dated 22-11-2000 directing him to deposit the afore referred amount of Rs.2,598,084 within four weeks directing that "this offer of commercialization is valid only for one month. In case you failed to deposit the fee, the offer will stand withdrawn without any further intimation".

6. The grounds urged in support of this petition are that once the commercialization having been validly approved and consequent demand of Rs..4,288,472 on account of commercialization fee having been acted upon, could not and should not have been withdrawn, varied or amended unilaterally and arbitrarily.

7. Adds that after payment of sum of Rs.2,408,333 by the petitioner to the L.D.A. on account of balance commercialization fee and surcharge on two occasions i.e. on 29-5-1997 and 15-8-1997 respectively, and consequently, in the wake of construction work carried out at the site on the basis of the sanctioned plan, it became a past and closed transaction, could not be reviewed and reopened by the respondents. Thus, review proceedings initiated in the instant case by respondent No.5 speaks volume of mala tides and lack of jurisdiction giving rise to illegal demand of Rs.2,598,084.

8. Learned counsel for the petitioner next asserts that impugned decision has been taken against the petitioner at his back in pursuance of the proceedings of the so-called Review Committee of the respondent L.D.A., whereas, provision to review any decision is very much conspicuous by its absence in L.D.A. Act, 1975. And in absence of this statutory provision, jurisdiction to review a past and closed transaction in the present case would be a nullity in the eye of law. Adds that even otherwise, this being a past and closed transaction could not be reopened/reconsidered or reviewed in the manner whatsoever. To substantiate his assertions, learned counsel relies on Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 and Col. (R.) Syed Mukhtar Hussain v. Chairman Federal Land Commission, Islamabad and 3 others 2004 CLC 1019.

9. Conversely, learned counsel for the L.D.A. vehemently argued that at the time of initial assessment for commercialization fee, petitioner with the connivance of the functionaries of the L.D.A. managed to get the measurement of the rear area rather than front side, thus, the Review Committee rightly reviewed the issue by dispatching notice to the petitioner to deposit further amount as assessed by the L.D.A.

10. I have heard the arguments raised from both sides and gone through the facts and record of the case. Admittedly, petitioner in the first instance deposited the requisite commercialization fee as assessed by the L.D.A., whereafter, surcharge on the said amount demanded by the L.D.A. And the Review Committee awoke from its slumber after long time, unilaterally reviewed the matter and dispatched notice to the petitioner to deposit further amount on the ground that at the relevant time of assessing the questioned commercialization fee, incorrect assessment was made.

11. Be that as it may, the provision to review any earlier decision taken by the L.D.A. authorities is not incorporated or provided in the L.D.A. Act, 1975. In its celebrated judgment, their Lordships of the apex Court in the case reported as PLD 1970 SC 1 (supra), held that "The right to claim review of any decision of a Court, of law, like the right of appeal is sustentative right and nor a mere matter of procedure. A review is not available unless it has been conferred by law". It was further held that "a review does not exist in the nature of things; a right to appeal from any decision of any Tribunal must be given by express enactment".

12. It stands established and admitted by both the learned counsel for the parties that right to review nowhere finds mention in the L.D.A. Act itself. In this view of the matter, it is a fit case for interference and invalidation of the proceedings conducted by the Review Committee, which are accordingly held to be coram non judice, without any lawful authority and jurisdiction. Consequently, by accepting this writ petition, I set aside the impugned notice, dated 19-5-2000 declaring the same to have been issued without any lawful authority and legal effect, leaving the parties to bear their own costs. S. A.K./A-272/L Petition accepted.