P L D 2010 Karachi 374 (PLP)

MUSHIR ALAM, J.

Through this common judgment we intend to decide C.P.No.70/2005 and C.P. No.942/2007 as the point in issue is common.

2. In C.P. No.D-70/2005, petitioner claims to be the owner of Plot No.2-A, Molana Muhammad Ali Johar Memorial Cooperative Housing Society, Karachi. Subject plot abuts main Drigh Road now Shahra-e-Faisal, Karachi. Petitioner applied for the commercialization of the plot to the respondent No.1, Federation of Pakistan through Secretary, Ministry of Housing and Works. Respondent No.1 demanded commercialization charges at Rs.3500 per square yard to consider the case and forward it to KDA/KBCA for issuance of NOC. It is the case of petitioner that the petitioner applied for the approval of building plan but it was declined as no commercialization charges were paid by the petitioner. Petitioner did not pursue the matter further. It appears that in the meantime KDA through Notification dated 20-7-1998 commercialized the road where the subject plot is situated. Petitioner claimed commercialization without payment of any commercialization fee in view of judgment rendered in the case of S.M. Aslam v. KBCA (2005 CLC 759), in cited case a learned Division Bench of this Court held that there is no need to get the NOC from the lessor i.e. CDGK for commercialization of plots abutting on declared commercial roads by virtue of notification, issued in exercise of power under section 40(3) of KDA Order, therefore, question of seeking permission of KBCA for commercialization and or payment of commercialization fee would not arise. Petitioner claims that his plot is also situated on the declared commercial road, therefore the petitioner is neither obliged to apply for commercialization nor liable to pay commercialization fee nor same could be recovered by the CDGK.

3. In C.P.No.942 of 2007 petitioner claims to be the owner of Plot No.19-A, Block-6, PECHS, Karachi, abutting Shahra-e-Faisal, which is declared commercial road. Petitioner also relies on the case of S.M.Aslam v. KBCA (2005 CLC 759). It is further pointed out by the learned counsel that through the judgment in S.M.Aslam case has been impugned before the apex court but no restraining orders have been obtained, therefore, this Court is bound by the earlier judgment rendered by a Bench of this Court in the case of S.M.Aslam (supra).

4. Mr. Manzoor Ahmed, counsel for CDGK has strenuously argued that notification dated 20-7-1998 on which the judgment is based has not been gazetted, such aspect was not considered by the learned Bench, therefore, the judgment in S.M. Aslam v. KBCA (2005 CLC 759) is per incuriam and is of no legal significance. He strenuously argued that in terms of Article 140-A of the Constitution of Pakistan, the devolution of powers has been made on the Local Government, and such powers are exercisable under the Sindh Local Government Ordinance 2001. It was emphatically urged that in terms of section 192, Zila Council is competent to issue Land Conversion Policies & Regulations and CDGK through Resolution No.383 dated 6-1-2004, approved "Change of Land Use and Master Planning-2003, Bye-laws-2003" (for brevity sake hereinafter abbreviated as Bye-Laws 2003), therefore, the notification, resolution, bye laws regarding change of land use, issued by the defunct KMC, KDA, KBCA, Malir or Lyri Development Project issued earlier even otherwise, stands superseded. Mr. Manzoor Ahmed fairly conceded that the Shahra-e-Faisal, where both the properties referred to above are situated, are also included in the list of declared commercialized road under the Bye-laws 2003, but subject to payment of commercialization fee. We have heard the arguments and perused the record.

5. As the fact show that through Notification dated 20th July, 1998 commercialization of plots/land was allowed on six roads, which were declared commercial by Government of Sindh in 1989 viz (i). Shahra-e-Pakistan, Teen Hatti Bridge to Scheme 16, (ii) University Road (Scheme 24/36), (iii), Nazimabad "A" Road (left side of Main Road towards Paposh Nagar and extension up to Lasbella Bridge on left side, (iv), Rashid Minhas Road (Scheme No.16/36 (v), Shahra-e-Faisal, and Tariq Road and its extension up to Bhadurabad Commercial Area and Sindhi Muslim Society up to Shahra-e-Faisal, (subject Notification issued by the Government of Sindh, is placed on record in C.P. 70/09 along with the statement dated 8-3-2006. (for brief history of commercialization one may refer to publication of "Bye-laws, CDGK, compiled by Mr. Manzoor Ahmed Principle legal adviser CDGK, published by CDGK page No.49). In said Publication of CDGK, said Notification dated 20th July, 1998, has been acknowledged to be issued by the Government of Sindh.

6. In Constitutional Petition No. D-70 of 2005, the petitioner had applied for commercialization on 22-7-2002 to the Ministry of Housing and Works and in response dated 24-9-2002 they were required to pay commercialization fee, which was not paid. The petitioner had again applied for change of land use on 17-4-2004 as per Annexure `A' to the comments filed by CDGK in accordance City Council Resolution No.383, dated 6-1-2004. It was, therefore, urged by the Counsel for the CDGK that the petitioner is liable to pay the commercialization fee as per prescribed rate and no exception could be taken.

7. Properties in C.P. No.D-942/2007 and C.P. No.D-70/2005 abut main Shahra-e-Faisal, Karachi, which has since been declared commercial road along with five other roads under Proposal or Tazweez No.1 under the Change of Land Use Bye-laws 2003 as stated above and the commercialization is not claimed as per Notification dated 20-7-1998. Therefore, the contention of Mr. Manzoor, learned counsel for CDGK as regard the publication or otherwise of a Notification dated 20-7-1998 which was subject-matter in S.M. Aslam v. KBCA (2005 CLC 759) is of no avail.

8. Contention of Mr. Manzoor, that Notification dated 20th July, 1998 stands superseded on the approval of Bye-laws 2003 on 6-1-2004, therefore, benefit of such notification cannot be given was aptly attended in the case of S.M.Aslam 2005 CLC 759 in para 10 at page 764, the Court resounding the principles of section 6 of the General Clauses Act, 1897, and section 4 of the Sindh General Clauses Act, 1956 held "Once a vested right has accrued in favour of a party under a statute, which statute is subsequently repealed, such right cannot be disregarded it was further observed "owners having their properties on six different roads which were declared commercial would remain intact and such roads and properties on them would continue to have the status of commercial premises irrespective of repeal of KDA Order". Therefore, such arguments of Mr. Manzoor, having been dealt in the cited case need no further deliberation.

9. The principle laid down in the S.M. Aslam v. KBCA 2005 CLC 759) case is that since the area has been notified as commercial, per Notification dated 28 July, 1998 there would be no question of payment of commercialization fee and the Court directed the KBCA to examine ' the concept plan for raising commercial construction and no further NOC for commercialization of plot in dispute is required from CDGK. It may be observed that there is chain of authorities where the superior Courts have held that where the area has been commercialized by the competent authority, then authority or any objector cannot press into service that each of the plot owner of the declared area should invite objection before putting the property for commercial use, as in the case of Ardashir Cowasjee v. Clifton Cantonment Board 1998 MLD 1818, GB Resolution No.220, whereby 15 different areas were declared commercial, came up for consideration (see para 9, @ 1822, in Para 27 @ 1827 the Court was convinced that the Governing Body was competent to pass such resolution. In the case of Irfan v. KBCA 2005 CLC 694, a learned Division Bench of this Court observed that in para 18 of the judgment reported as Excel Builder case (1999 SCMR 2089), the conversion of residential plot on main road into commercial plots were not found to be questionable act. In the case of S.M. Aslam v. KBCA 2005 CLC 759), learned DB of this Court, on the basis of Notification dated 12-2-1998 issued by the Provincial Government declaring six roads of Karachi as commercial, held in para 8 at page 763 that "there arises no occasion for the petitioners to seek change of land use as the status of subject plot already stood changed from residential to that of commercial on issuance of said Notification" in Para 13 it was held "Again in the circumstances there would be no question of payment of commercialization fee". In the case of Arshad Abdullah v. Government of Sindh 2006 YLR 3209, same learned DB followed its view as expressed in the case of S.M.Aslam v. KBCA 2005 CLC 759, it was further observed that one out of four amalgamated plots do not face the commercialized road, would not be treated as commercial, for which procedure prescribed may be followed. In Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113, in para 14 at page 3119 learned DB in consideration of fact that per Notification dated 20-7-1998 six roads were declared commercial by the Sindh Government, therefore petitioners' claim of hearing before conversion of subject plot was not conceded and the Petition was dismissed. In Navaid Hussain v. Jehangir Siddiqui 2007 CLC 1568, in para 4 at page 1571, Resolution 383 dated 6-1-2004, was considered and it was held that "once an area is declared as commercial then commercial activities are required to be carried out in accordance with law, without any hindrance". In Syed Tahir Hussain Mehmoodi v. Tayyab 2009 YLR 1254, learned single bench followed the cases discussed herein. In the case of Haji Amin v. Navaid Hussain 2008 SCMR 133, seven-member Bench of honourable Supreme Court, in paragraph 8 at page 140 of the judgment repelled the objection that the commercialization was done without public notice, .in view of the fact that subject road was declared commercial vide Sindh Government Gazette Notification dated 12-2-2004. In the case of Excel Builders v. Ardashir Cowasjee 1999 SCMR 2089 commercialization of entire Clifton road, pursuant to Resolution No.220 dated 11-5-1980, came up for consideration, before the apex Court and no exception was taken.

10. In terms of the dicta laid down in the case of Multiline by the apex Court that earlier judgment of Division Bench in the High Court on the same point is binding upon the other Division Bench, only exception is where the Bench is inclined to take a different view in which eventuality, proprietary demands that request for the constitution of a larger bench should be made (see Multiline Associates v. Ardershir Cowasjee PLD 1995 SC 423 =1995 SCMR 362).

11. In our opinion, ratio laid in the case of Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113, (para 14 at page 3119) and S.M. Aslam v. KBCA (2005 CLC 759) on the strength of Notification dated 20-7-1998, is that once the area is declared commercial by law, there is no requirement to apply and observe any requirement, which otherwise are required to be observed and followed to obtain conversion of individual residential into commercial property, and there is no need to pay conversion fee, as property stand converted by operation of some rules and or notification issued under authority of law.

12. In the instant case also admittedly both the properties are situated on a road, (namely Shahra-e-Faisal), which was originally declared as commercial as per Notification dated 20-7-1998, and subsequently it was reaffirmed under Tazweiz No. 1 (proposal No.1) approved by the City District Council, on the recommendation of Committee under Bye-laws 9 of Change of Land Use and Master Plan Bye Laws 2003. It may be observed in terms of Bye Law No.1-5 ibid change of land use shall not be permitted unless the area is declared commercial area or where the property is situated on less than 100 feet wide road. In cases where the area is not declared commercial, procedure provided for seeking conversion or change of land use for the individual plot owners is provided under Bye-law No.3, which inter alia require, application for change of land use on prescribed form to be made simultaneously to the concerned Union Council and Master Plan CDGK, along with copy of advertisement in two news papers after inviting objection and other codal formalities permission may or may not be granted. However, where the City District Council on the recommendation of the Committee as per Bye-law 9, ibid allows change of land use, formalities required under Bye-law No.3 ibid would not be applicable.

13. In the instant case both the properties are situated on Shahrah-e-Faisal, of which change of land use has been approved by the City District Council, therefore, the case of the petitioners is at par with the case of Muhammad Hanif v. Sameena Sibtain 2007 YLR 3113 and case of S.M. Aslam v. KBCA (2005 CLC 759), and other case referred to in paragraph No.7 above.

14. In the case of Sikander A. Karim v. State 1995 SCMR 387, at page 411, it was held "the decision of Supreme Court, in so far it decides a question of law or is based upon or enunciate a principle of law is binding on all Courts in Pakistan. The decisions on question of laws or enunciation of principle of law are the generalization of the question and principles. There can be no generalization of the fact and circumstances of any case and therefore, provide no guidance in the other cases. On the other hand, the generalized principle of law or generalized enunciation of principle of law or generalized enunciation of principle of law govern all those who fall within such generalization. (Underlined to add emphasis).

15. In the case of Government of Punjab v. Seema Parveen (2009 SCMR 1), principle laid down in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Punjab (1996 SCMR 1185) was reaffirmed wherein it was held that if a Tribunal or Supreme Court decides a point of law relating to the terms ;and conditions of a civil servant who litigated and there were other civil servants who may not have taken any legal proceedings in such a case justice and rules of good governance demands that benefit of the said decision be extended to other civil servants also who may not be parties to the litigation instead of compelling them to approach the Tribunal or other legal forums as all citizens are equal before the eye law and entitled to equal protection of law under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

16. In the case of Maqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD 1, it was further held in paragraph 11 at page 6 that "All pronouncements by superior Courts, interpreting specific provisions of law have retrospective effect. The judgment of the Supreme Court declaring certain provision of law, to be inapplicable to a class of assesses is a judgment in rem. It means that even if the petitioner had not filed the said constitution petition they were entitled to the refund of turn over tax, either voluntarily paid or coerced by the department. In such situation, any payment made by the assessee or received by the department could not be termed, as past and closed transaction. The retention would be unjustified, in view of the law laid down by the Supreme Court in re Pfizer Laboratories Ltd. v. Federation of Pakistan PLD 1998 SC 64" (underlined to add emphasis).

17. The principle deducible from reading Sikander A. Karim v. State 1995 SCMR 387, Hameed Akhtar Niazi v. Secretary, ` Establishment Division, Government of Punjab (1996 SCMR 1185) Government of Punjab v. Seema Parveen (2009 SCMR 1) and Maqbool Textile Mills Ltd. v. Federation of Pakistan 2001 PTD

1. Dispensation of justice is not alone the function of Court, public functionaries are equally responsible to treat all the citizen placed in similar circumstances alike. Though, under trichotomy of power, it is the legislature, that makes the law, executive through public and statutory functionary makes policies and implement law, whereas enunciation, interpretation and exposition of law is the function of Judiciary. When a particular law, rules, regulation, policy etc. is expounded and enunciated by the superior Court it is binding on all. For the safe, expeditious administration of justice, it the duty of the public and statutory functionary to apply law, rule, regulation, notification or the policy etc. as enunciation, interpretation and expounded by the superior Courts with all its implication and or ramification effecting person or group of person coming within its net, whether they have approached the Court or not.

18. Public and statutory agencies, authorities, bodies and functionaries etc. like Building Control Authority, City District Government, Board of Revenue, Customs, Excise, Port Trust and Cantonment Board etc. to name a few are regularly confronted with similar proposition and situation, where some law, statutory rule, regulation, notification or policy etc. affects large segment or class of people. It is not always that each and every affected person has the courage and resources to approach the Court challenging the vires, implication or ramification of such law, statutory rule etc. hardly few are able to approach the Court. It is, noted that where any law, statutory rule etc. on being challenged, is interpreted and decided one way or the other by the superior Courts, then such interpretation, application of law, rule etc. not only decide the right of a person who had approached the Court of law but is also, judgment in rem as regards the interpretation and application of impugned law, statutory rule etc. applied by the concerned public, statutory agencies, authorities, bodies and functionaries etc. The judgment of High Court and Supreme Court to the extent, its decides a question of law or is based upon principle of law or enunciate/interpret law, statutory rule etc. is not only binding on all subordinate Courts, tribunals but is also binding on all public and statutory functionaries etc; such judgment hold good and should be applied by all such public and statutory functionaries etc. to all person or class of person affected by such law, rule etc.; without forcing or driving such person to obtain reaffirmation of the legal position already declared by the superior Courts in earlier round of litigation to which such person/s was not a party, unless of course, such decision is revisited by the Court in review, revision, appeal or a larger bench has taken a different view or quoting Saeeduzzaman Siddiqui, J. in Sikandar Karim 1995 SCMR 387 @ 411), "the generalized principle of law of generalized enunciation of principle of law govern all those who fall within such generalization". All persons, placed in a similar situation, affected by any law, statutory rule, regulation, notification or policy etc., are to be treated even handedly and in the like manner. It is regrettably noted that public functionaries, invariably derive and force every person affected by law, statutory rules etc. to approach the Court of law to obtain similar relief rather than extending similar relief by itself, on the basis of principle of law that has been earlier set at rest, which conduct is neither desirable nor could be approved as it negates, even handed dispensation of justice and meting out equal treatment as mandated per Articles 25 and 10-A of the Constitution of Pakistan, 1973.

19. The principle set-down as already noted in the case of S.M. Aslam v. KBCA (2205 CLC 759) that when a road has been declared commercial on the issuance of notification there would be no question of payment of commercialization fee.

20. We are bound by the decision of Division Bench, therefore, we allow the petitions, however, subject to the condition that in case apex Court comes to the conclusion despite declaration of an area as commercial, commercialization fee is to be recovered and imposed. Undertaking of the petitioners counsel are recorded that the petitioners shall pay commercialization fee, as may be prevalent on the date of judgment passed by the apex Court. The reason being that since the petitioners will be utilizing their property for commercial purposes without payment of the commercialization fee, which otherwise they would have paid, had the judgment in; S.M. Aslam case was not delivered Both the above petitions stand allowed in above terms. M.H./Z-12/K Petitions allowed.