PLJ 2023 Lahore (Note) 100
[Bahawalpur Bench, Bahawalpur]
Present: Ahmad Nadeem Arshad, J.
Malik GULL ZAMAN--Petitioner
versus
DEPUTY COMMISSIONER and others--Respondents
W.P. No. 4808 of 2021/BWP, decided on 6.7.2021.
Punjab Local Government Act, 2019 (XIII of 2019)--
----S. 284--Constitution of Pakistan, 1973, Arts. 4, 9, 18, 23, 24 & 199--Construction of shops--Submission of site plan fee--Approved site plan was never handed over to petitioner--Shops of petitioner were sealed for non-provision of site-plan--Exercising of discretionary powers--Requirement for due process--No prior inquiry was conducted--No opportunity of hearing--Action of sealing property of Petitioner prima facie seems to be unjustified because power to seal a premises was granted to Inspector or Enforcement Officer subject to fulfillment of certain criteria but in this case no order with reasons towards sealing of premises of petitioner is available on record--The respondents being public functionaries while exercising their discretionary power have to act justly and fairly especially where fundamental rights of citizen are involved--The respondent-authority before sealing of shops was required to follow requirement of due process and rule of natural justice by giving hearing to petitioner--Shops of petitioner are sealed without any prior inquiry to determine whether there is any serious threat and danger to public life and property and secondly it is without hearing, is violative of fundamental rights and without jurisdiction and wholly without authority--Petition accepted.
[Para 11, 17 & 18] A, C, D & F
PLD 2011 SC 963 & PLD 2001 SC 1 ref. PLD 2006 SC 697, 2012 SCMR 485, 2008 SC 135, PLD 1912 SC 219.
Punjab Local Government Act, 2019 (XIII of 2019)--
----S. 284--Constitution of Pakistan, 1973, Arts. 4, 9, 18, 23 & 24--Power to sealing property--Fundamental right--Power of sealing property without satisfying conditions as provided in Section 284 of Act encroaches upon right of property and right to carry lawful business which is a fundamental right of every citizen enshrined in Articles 4, 9, 18, 23 and 24 of Constitution of Islamic Republic of Pakistan, 1973. [Para 11] B
Constitution of Pakistan, 1973--
----Art. 10-A--Fair trial--Fair trial and due process is a fundamental right of every citizen of Pakistan. [Para 17] E
2016 SCMR 943 & PLD 2019 SC 745.
Mr. Muhammad Aslam Khan Dhukkar, Advocate for Petitioner.
Malik Shahnawaz Kalyar, Assistant Advocate General.
Mr. Nadeem Iqbal Ch., Advocate for Respondents Nos. 6 and 8.
Date of hearing: 6.7.2021.
Order
Through this constitutional petition, the petitioner has challenged the legality of act of Respondents Nos. 6 to 9 dated 07.06.2021 towards sealing of 22 shops along with chobara of the petitioner situated at Mouza Taatar Chachar (Zahirpeer) KLP Link Road, Tehsil Khanpur District Rahim Yar Khan.
2. Necessary facts for disposal of this writ petition are that the petitioner constructed 22 shops along with Chobara upon his own land situated in Mouza Taatar Chachar (Zahirpeer) KLP Link road, Tehsil Khanpur District Rahim Yar Khan in the year 2005-06 after submission of site-plan/map and deposit of fee amounting to
Rs. 400,000/-in Tehsil Municipal Committee Khanpur. The approved site plan was neither prepared nor handed over to the petitioner despite his demand rather the officials of T.M.A., Khanpur informed the petitioner that due to sudden death of Mohtarma Benazir Bhutto, the public-at-large committed riots, as a result the record was destroyed. Similar report was made on his application submitted before Chief Officer, Municipal Committee Khanpur. On 01.06.2021, notice was issued by the Chief Officer Town Committee, Zahirpeer with the averments that the petitioner has constructed shops without sanction of site plan, therefore, he should get sanction site plan from Respondent No. 6 within 03 days. Upon which, the petitioner appeared before Respondent No. 6 and produced copy of challan regarding deposit of fee for sanction of site plan. Thereafter, on 07.06.2021 Respondents Nos. 6 to 9, on the instructions of Respondents Nos. 1 and 11, sealed 22 shops of the petitioner along with chobara. Being aggrieved of the act of the respondents towards sealing of his premises, the petitioner has filed instant petition.
3. Report and parawise comments were requisitioned from Town Committee Zahirpeer as well as Tehsil Municipal Committee Khanpur, wherein contentions of the respondents/Town committee, Zahirpeer are that the petitioner established an unapproved residential town with the name of Gull Town and Malik Town and also constructed 22 commercial shops without any approval from respondents authority under the pretext that the petitioner prepared fake record for deposit of site plan fee; that regarding same relief he also filed civil suit wherein interim relief was declined to him; that not only the shops of petitioner have been sealed but also total 70 shops (including the shops of petitioner) were sealed in accordance with law; that no record regarding approval of site plan is available in the office of respondents/Town Committee and the respondents on account of aforementioned irregularities validly proceeded against the petitioner without any ill-will or grudge against him.
In their report and para-wise comments submitted by respondents/authority, the contention of Respondent No. 3/Tehsil Municipal Committee, Khanpur is that the petitioner constructed shops without approval of map/plan from the concerned Municipal Committee and there is no record available in the office of TMA Khanpur regarding sanction of map/plan as well as deposit of receipt of fee of map/plan. However, they admitted that in the year 2007 due to sudden demise of Motherma Benazir Bhutto, the record of T.M.A., Khanpur was destroyed by the public-at-large, regarding which they lodged F.I.R., at Police Station. They prayed for dismissal of writ petition.
4. Learned counsel for the petitioner contends that at the time of construction of shops, the area fell within local limits of Municipal Committee, Khanpur and the petitioner constructed these shops in the year 2005 after payment of requisite fee of Rs. 400,000/-and in this regard copy of receipt has been placed on record; that Respondents Nos. 6 to 9 have no authority whatsoever to seal, demolish or take any action against the constructed shops under the amended law of the Punjab Local Government Act, 2019; that notice dated 01.06.2021 as well as act of Respondents Nos. 6 to 9 dated 07.06.2021 towards sealing of the premises of the petitioner are against law and fact, illegal, without authority, against the fundamental rights of petitioner, hence, liable to be set-aside and a direction may very kindly be issued to respondents to de-seal 22 shops as well as chobara owned by the petitioner.
5. On the contrary, learned counsel for Town Committee contends that the shops were constructed without approval of any site plan/map in the year 2012, which is evident from the electricity bills appended with report and para-wise comments as date of installation of electricity meters have been shown as 2012; that writ petition is not competent in view of alternate remedy available to the petitioner in shape of appeal provided vide notification dated 10.07.2020 issued by the Local Government against the proceedings under Section 281 of the Punjab Local Government Act, 2019; that on the report of Enforcement Team 70 shops, including the shops of the petitioner, were sealed for want of approval and that proceedings regarding sealing of shops were initiated in the light of Section 284 of the Punjab Local Government Act, 2019. He prayed for dismissal of writ petition.
6. I have heard the arguments advanced by the learned counsel for the parties, perused the record, relevant law and rules with their able assistance.
7. The stance of the respondent Town Committee Zahirpeer is that the petitioner constructed the shops without getting the sanction of building plan as he failed to provide the copy of the sanction site plan in response to the notices issued to him in this regard. The respondents have relied upon Letter No. TCZPR 415, dated 07.05.2021, addressed by Enforcement Inspector Town, Committee Zahirpeer (Respondent No. 8) to the Chief Officer Town Committee, Zahirpeer with the subject “PROCEEDING AGAINST ILLEGAL CONSTRUCTION WITHOUT APPROVAL OF SANCTION PLAN WITHIN THE LIMITS OF TOWN COMMITTEE ZAHIRPEER” wherein it was mentioned that on the instructions of Chief Officer survey was conducted and it was found that at different sites of the city construction is under way without approval of the site plan and some of the people of the locality completed their constructions without approval of the site plan and proposed that an order to seal such premises be issued. The Chief Officer (Respondent No. 6) on the same day issued the direction in the following manner:-
“Allowed as per rules as per laws”
In furtherance of the above order, the Chief Officer, Town Committee (Respondent No. 6) issued notice No. TCZPR 442, dated 17.05.2021, in the name of petitioner as well as two others with the subject “illegal construction residential/commercial” with the averments that the property owner(s) constructed 22 shops without getting sanction of plan from Town Committee Zahirpeer and in this way violated the Local Government Commercialization Rules, 2009-10 and directed that to submit the sanction plan in the office of Town Committee Zahirpeer for perusal and if sanction plan was not got approved then after payment of all the Government dues, fresh map/plan be submitted for its approval within three days. A warning was also conveyed to the effect that in case of failure illegal construction would be demolished at the risk and cost of the owner. The exact wording of the notice is as under:
نوٹس بنام گل زمان علی زمان و غیره
ملک ٹاؤن ظاہر پیر
نمبر417/TCZPR مورخہ 17/05/2021
عنوان: غیر قانونی تعمیر رهائشی/ کمرشل
اندریں عنوان بالا تحریر ہے کہ آپ ٹاؤن کمیٹی ظاہر پیر سے بغیر نقشہ منظور (22) عدد دوکانات تعمیر کر چکے ہیں۔ اس طرح آپ لوکل گورنمنٹ کمرشلائزیشن رولز 10-2009 کی خلاف ورزی کے مرتکب ہوئے ہیں۔
اس سلسلہ میں آپ کو بذریعہ نوٹس ہذا مطلع کیا جاتا ہے کہ نقشہ دفتر ٹاؤن کمیٹی ظاہر پیر میں فورا ً منظور شدہ نقشہ برائے ملاحظہ جمع کرائیں اور اگر منظوری نقشہ حاصل نہ کی گئی ہے تو اندر تین یوم نقشہ بمع گورنمنٹ کے تمام واجبات ادا کر کے نقشہ منظور کرائیں۔
بصورت دیگر غیر قانونی تعمیر کو مسمار کر دیا جائے گا اس پر ہونے والا حرجہ خرچہ آپ کے ذمہ ہوگا۔ اور آپ کا کوئی عذر قابل سماعت نہ ہوگا۔
چیف آفیسر
ٹاؤن کمیٹی ظاہر پیر
Similar type of notices were again given on 27.05.2021 and 01.06.2021.
8. The Enforcement Inspector, Town Committee Zahirpeer, through letter dated 07.06.2021, reported that property owners have raised construction at site without approval of the site plan from the Town Committee Zahirpeer and proposed that orders for seal the properties be issued. The Chief Officer, on that letter, wrote down “Allowed as per rules as per laws”. In the said letter Bearing No. TCZPR 524 dated 07.06.2021, stated that property owners did not get approved the building plans from Town Committee Zahirpeer despite issuance of notices and solicited order to seal of the properties under Section 284-B, Chapter XXXIV (Municipal Offences and their Cognizance) of Punjab Local Government Act, 2019. The Chief Officer has written on this letter “Allowed as rules as per law”. The exact wording of the notice is reproduced as under:
از طرف:۔
انفورسمنٹ انسپکٹر
ٹاؤن کمیٹی ظاہر پیر ۔
نمبر TCZPR/524 مورخہ 2021/06/07
عنوان: کاروائی بر خلاف نا جائز تعمیرات / بغیر منظوری نقشہ تعمیرات اندر حدود ٹاؤن کمیٹی ظاہر پیر
اندریں عنوان تحریر ہے کہ مالکان املاک کو نقشہ منظوری بارے نوٹسز جاری کئے گئے ہیں لیکن مالکان املاک نے اپنی املاک کی تعمیر کے لئے ٹاؤن کمیٹی ظاہر پیر سے نقشہ جات منظور نہ کرائے ہیں۔ لہذا پنجاب لوکل گورنمنٹ ایکٹ 2019 chapter 284-B, XXXIV(Municipal Offences and their cognizance کے تحت املاک کو سیل کئے جانے کے احکامات جاری فرمائے جائیں۔ رپورٹ برائے ضروری کاروائی پیش خدمت ہے۔
انفورسمنٹ انسپکٹر
ٹاون کمیٹی ظاہر پیر
جناب چیف آفیسر صاحب
Pursuant to the order passed by the Chief Officer, the field staff of the Town Committee, Zahirpeer sealed the shops of the Petitioner for non-provision of the copy of sanctioned plan and failure to get the fresh sanction of site plan.
9. The action of sealing of shops has been taken in the light of provision of Section 284 of the Punjab Local Government Act, 2019, which for convenience of reference is reproduced herein below:-
284. General powers of Inspectors and Enforcement Officers.--(1) Where, an Inspector or enforcement officer considers that such action is warranted in the interest of public health, safety, convenience or welfare, or to avoid danger to life or property, he may, in relation to an offence listed in the Fifteenth Schedule, by a written order:
(a) Suspend, remove or caused to be removed, any work;
(b) Seize, destroy or caused to be destroyed, any good or thing;
(c) Seal premises;
(d) Prohibit an activity; and
(e) Direct that certain measures shall be taken by the relevant person by such time and in such manner as he considered necessary and appropriate.
(2) A person who fails to promptly obey the direction of an Inspector or enforcement officer under subsection (1) shall an offence punishable with imprisonment which shall not exceed one year, or with fine which shall not exceed one hundred thousand rupees.”
From bare reading of Section 284 of the Act ibid, it appears that action could be taken by Inspector or Enforcement Officer in relation to an offence listed in the Fifteenth Schedule subject to if he is satisfied that it is in the interest of-
a) Public health
b) Safety
c) Convenience or
d) Welfare or
e) to avoid danger to life or
f) Property
If the aforementioned conditions will be present and fulfilled then the competent authority can take any of the following actions:-
(a) Suspend, remove or caused to be removed, any work;
(b) Seize, destroy or caused to be destroyed, any good or thing;
(c) Seal premises;
(d) Prohibit an activity; and
(e) Direct that certain measures shall be taken by the relevant person by such time and in such manner as he considered necessary and appropriate.
It is relevant to mention that in the Fifteenth Schedule, 78 types of Municipal offences have been mentioned. The relevant offence for the purpose of subject matter with a title described at serial number 62, Chapter ‘I’, “Offences relating to land use and building control”, which reads as under:
Serial | Offence | First Stage Administrative penalty | Administrative Penalty by Enforcement Officer | Imprisonment or fine to be imposed upon a person on conviction by a competent Court (maximum limit) |
I | Offences relating to land use and building control |
62 | Erection or re-erection of a building without the sanction required under this Act or using a building for a purpose which may endanger public safety | Rupees one hundred thousand and removal at owner’s expense | Rupees one hundred thousand to one million and removal at owner’s expense | Imprisonment of one month, or fine of rupees five million or both and removal at owner’s expense |
At serial No. 62 two types of offences have been described, firstly, erection or re-erection of a building without approval as required under this Act and secondly, using a building for a purpose which may endanger public safety. Although a third offence was introduced through amendment Ordinance which relates to violation of sanction building plan but this offence stood omitted with the elapse of amendment ordinance prior to its conversion into formal Act.
10. There is no cavil with the proposition that erection or re-erection of a building without approval of building plan is violation of law and rules, hence the same amounts to an offence. To fortify said finding reference can be made to the Fifteenth Schedule wherein penalties/fines and sentence have been provided for offences relating to erection, re-erection of a building without approval of the site plan.
11. Now the question arises whether that violation gave power to the authority to seal the shops. In this regard I revert to the provision of Section 284 of the Act, ibid which empowers the Inspector and Enforcement Officer to seal the premises. But before doing this he will have to consider that whether this action is warranted in the interest of public health, safety, convenience or welfare, or to avoid danger to life or property. Meaning thereby, such power can only be exercised in case of any serious threat to the public health, safety, welfare or danger to life and property. The power to seal the shops is not to be exercised automatically where the construction is against the approved plan and the plan was not got approved but the authority regardless of the legal status of the shops should be satisfied that the sealing of the shops is necessary to avoid any serious threat to the public health, safety, welfare or danger to life and property. If the act of the respondents towards sealing of the shops of the petitioner is considered in the light of criteria set-forth in Section 284 of the Act ibid, I feel no hesitation to hold that the action of sealing the property of the Petitioner prima facie seems to be unjustified because the power to seal a premises was granted to the Inspector or Enforcement Officer subject to fulfillment of certain criteria but in this case no order with reasons towards sealing of the premises of the petitioner is available on the record except the comments of the Chief Officer on a letter dated 07.06.2021 in terms of “Allowed as rules as per law”. This observation or comments can, by no stretch of imagination, be called as an order and if it is presumed as an order then it does not qualify the test of a speaking order in terms of Section 24-A of the General Clauses Act. The Section 284 of the Act ibid further denotes that the concerned officer will pass a written order, which is lacking in this case. Despite addressing the Court at certain length, learned counsel for the respondents failed to satisfy that as to how their action to seal the shops of the petitioner was in the interest of public health, safety, convenience or welfare, or to avoid danger to life or property. The power of sealing the property without satisfying the conditions as provided in Section 284 of the Act ibid encroaches upon right of property and right to carry lawful business which is a fundamental right of every citizen enshrined in Articles 4, 9, 18, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973.
12. It is un-imaginary that a running business and a shop of a building can be sealed without proper inquiry and providing him proper opportunity of hearing. Although, it was pointed out on behalf of the respondent-authority that prior to sealing, notices were given. But simple notice does not meet with the principle of rule of natural justice i.e. audi alterm partem.
13. The Inspector and Enforcement Inspector has the power under Section 284 of the Act ibid to seal the shops/premises but such powers are not unbridled. The respondents are not only required to exercise this discretionary power sparingly but also ensure after inquiring and notice to the parties that there is a serious threat which warrant sealing the shops. The respondents being public functionaries while exercising their discretionary power have to act justly and fairly especially where fundamental rights of the citizen are involved. It is repeatedly held by the august Supreme Court of Pakistan that discretionary decision should be made according to rational reasons, otherwise the decision will be arbitrary and may be considered misuse of power. The august Supreme Court of Pakistan in its judgment reported “CORRUPTION IN HAJI ARRANGEMENTS IN 2020 in Suo Motu case No. 24 of 2010 and others” (PLD 2011 Supreme Court 963) held as under:-
“The discretionary powers vesting in an authority are to be exercised judiciously and in reasonable manner. In the case of Tariq Aziz-ud-Din: in re (2010 SCMR 1301), it has been held that the authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly. Reference may also be made to the cases of Abid Hussain v. PIAC (2005 PLC (C.S.) 1117), Abu Bakar Siddique v. Collector of Customs (2006 SCMR 705), Walayat Ali v. PICA (1995 SCMR 650). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. [Smt.Shalini Soni v. Union of India [(1980) 4 SCC 544)]”
In this regard in another case of august Supreme Court of Pakistan while dealing with the discretionary power reported as “Director Food, N.W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others” (PLD 2001 Supreme Court 1) held as under:
“We have gone through the impugned judgment as well as the relevant case-law on the subject. Prior to the promulgation of the Ordinance/Act a similar question came up for consideration before this Court in Government of N.W.F.P through Secretary v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan 1997 SCMR 1804, wherein this Court dilated upon the well-established general principles for the exercise of discretion to the effect that discretionary decisions should be made according to rational reasons, which means (a) that there be findings of primary facts based on good evidence and (b) that decisions about the facts be made for reasons which serve the purposes of the status in an intelligible and reasonable manner. It was held that the actions which did not meet these thresholds, requirements are arbitrary and might be considered as a misuse of powers. Our learned brother Muhammad Bashir Jehangiri, J, who authored the judgment, while dealing with the doctrine of structuring discretion, observed:--
“Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow in our context, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is, necessary, apart from the exercise of such power appearing arbitrary and capricious at times.”
14. The stance of the petitioner is that he constructed the shops in the year 2005-06 after getting approval from Tehsil Municipal Administration Khanpur by paying requisite fee of Rs. 400,000/-and in this regard relied upon a receipt. On the other side the Town Committee Zahirpeer controverted this fact by stating that the shops were constructed in the year 2012 without any sanctioned plan. The Tehsil Municipal Administration Khanpur now the Municipal Committee Khanpur took a stance that record of deposit of receipt is not available in the TMA Khanpur and further explained that due to riots after demise of Mohtarma Benazir Bhuttoo public-at-large committed mischief and destroyed the record and in this regard, FIR was also got registered. In this scenario the question whether the shops were constructed in the year 2005 or 2012 and without going into the factual controversy, admittedly at that time Punjab Local Government Ordinance, 2001 was enforced and the area upon which shops had been constructed situated within the local limits of T.M.A. Khanpur. Serial Nos. 24 to 39 of Sixth Schedule of the Punjab Local Government Ordinance, 2001 deal with “Building and Land use Control”. According to serial No. 24 no person shall erect or re-erect a building without previous sanction of the concerned Local Government Serial Nos. 25 and 26 describe the procedure of giving notice for erection or re-erection of the building. Serial No. 27 deals with power of Board to sanction or refuse the plan. Serial No. 31 defines illegal erection and re-erection and serial No. 32 describes that how to proceed with illegal erection or re-erection. The relevant serial numbers of sixth schedule for better understanding are reproduced as under:-
“24. Sanction for buildings.--No person shall erect or re-erect a building or commence to erect or re-erect a building on any land in a local area except with the previous sanction of the concerned local government nor otherwise than in accordance with the provisions of this Ordinance and of the rules and bye-laws made under this Ordinance relating to the erection and re-erection of buildings:
Provided that a local government may, with the approval of the concerned local council, exempt any Union or a part thereof from application of any specific provisions of the building bye-laws or any matter provided for in paragraphs 25 to 34.
25. Notice of new buildings.--(1) Whoever intends to erect or re-erect any building in a local area shall apply for sanction by giving notice in writing of his intention to the concerned local government.
(2) For the purposes of this Ordinance, a person shall be deemed to erect or re-erect a building who-
(a) makes any material alteration of enlargement of any building, or
(b) converts into a place for human habitation any building not originally constructed for that purpose, or
(c) converts into more than one place for human habitation a building originally constructed as one such place, or
(d) converts two or more places of human habitation into one such place or into greater number of such places, or
(e) converts a building or a site or land meant for one particular use or in one particular zoning area into any other use or a use meant for another zoning area, or
(f) converts into a stable, cattle-shed or cow-house any building originally constructed for human habitation, or
(g) makes any alteration which there is reason to believe is likely to affect prejudicially the stability or safety of any building or the condition of any building in respect of drainage, sanitation or hygiene, or
(h) makes any alteration to any building which increases or diminishes the height of, or area converted by, or the cubic capacity of, the building, or which reduces the cubic capacity of any room in the building below the minimum prescribed by any bye-law made under this Ordinance.
26. Conditions of valid notice.--(1) A person giving the notice required by paragraph 25 shall specify the purpose for which he intends to use the building.
(2) Where a plan to re-lay a street has been approved by the concerned local government, a person who intends to erect or re-erect a building or commences to erect or re-erect a building shall adopt the approved building or street line and for this purpose any space required to be left vacant shall vest in the local government.
(3) No notice shall be valid until it is made in the manner prescribed in the byelaws made under this Ordinance along with plans and other information which may be required therein, have been furnished to the satisfaction of the concerned local government along with the notice.
27. Power of Board to sanction or refuse.--(1) The concerned local government may, for reasons to be recorded in writing, either refuse to sanction the erection or re-erection, as the case may be, of the building, or may sanction it either absolutely or subject to such directions as it thinks fit in respect of all or any of the following matters, namely:-
(a) the free passage or way to be left in front of the building;
(b) the space to be left around the building;
(c) the ventilation of the building, the minimum cubic area of the rooms and the number and height of the stories of which the building may consist;
(d) the provision and position of drains, latrines, urinals, cesspools or other receptacles for wastes;
(e) the level and width of the foundation, the level of the lowest floor and the stability of the structure;
(f) the line of frontage with neighbouring buildings if the building abuts on a street;
(g) the means to be provided for egress from the building in case of fire;
(h) the materials and method of construction to be used for external and internal walls for rooms, floors, fire-places and chimneys;
(i) the height and slope of the roof above the uppermost floor upon which human beings are to live or cooking operations are to be carried on; and
(j) any other matter affecting the ventilation, sanitation safety or environmental aspects of the building and its relationship with the surrounding buildings or areas; and the person erecting or re-erecting the building shall obey all such written directions in every particular.
(2) The concerned local government may refuse to sanction the erection or reerection of any building, either on grounds sufficient in the opinion of the concerned local government affecting the particular building, or in pursuance of a notified general scheme or plan of the concerned local government, restricting the erection or re-erection of buildings within specified limits or for any other public purpose.
(3) The concerned local government before sanctioning the erection or reerection of a building on land which is under the management of the Federal or Provincial Government or any agency thereof, shall ascertain in writing within thirty days of application whether there is any objection on the part of the concerned Government to such erection or re-erection.
(4) The concerned local government may refuse to sanction the erection or reerection of any building--
(a) when the land on which it is proposed to erect or re-erect the building is held on a lease from the Federal or Provincial Government if, the erection or re-erection constitutes a breach of the terms of the lease, or
(b) when the land on which it is proposed to erect or re-erect the building is not held on a lease from the Government, if the right to build on such land is in dispute between the person applying for sanction and the Government.
(5) If the concerned local government decides to refuse to sanction the erection or re-erection of the building, it shall communicate in writing the reasons for such refusal to the person by whom notice was given.
(6) Where the concerned local government neglects or omits, for forty five days after the receipt of a valid notice, to make and to deliver to the person who has given the notice any order of any nature specified in this paragraph, and such person thereafter by a written communication sent by registered post to the concerned local government calls the attention of the concerned local government to the neglect or omission, then, if such neglect or omission continues for a further period of fifteen days from the date of such communication, the concerned local government shall be deemed to have given sanction to the erection or re-erection, as the case may be, unconditionally to the extent that it does 131 not contravene the provisions of the building bye-laws and any notified general scheme for the area:
Provided that, in any case to which the provisions of sub-paragraph (3) apply, the period of forty five days herein specified shall be reckoned from the date on which the concerned local government has received the report referred to in that sub-paragraph.
(7) The concerned local government may, after giving notice and for reasons to be recorded, cancel, modify or withdraw the sanction of a site plan at any time before construction has commenced or been made.
(8) Nothing in this paragraph shall apply to any work, addition or alteration which the concerned council may, by byelaws, declare to be exempt.
31. Illegal erection and re-erection.--Whoever begins, continues or completes no person shall begin continue or complete the erection or re-erection of a building:--
(a) without having given a valid notice as required by paragraphs 25 and 26 or before the building has been sanctioned or is deemed to have been sanctioned, or
(b) without complying with any direction made under sub-paragraph (1) of paragraph 27, or
(c) when sanction has been refused, or has ceased to be available, or has been suspended by the concerned local government.
(i) for the words and comma “Whoever begins, continues or completes” the words and comma “No person shall begin, continue or complete” shall be substituted; and
(ii) the words “shall be punishable with fine as prescribed” shall be omitted;
32. Power to stop erection or re-erection or to demolish.--(1) A local government may, at any time, by notice in writing, direct the owner, lessee or occupier of any land in its local area to stop the erection or re-erection of a building in any case in which the concerned local government considers that such erection or re-erection is an offence under paragraph 31, and may in any such case or in any other case in which the concerned local government considers that the erection or re-erection of a building is an offence under paragraph 31 within twelve months of the completion of such erection or re-erection in like manner direct the alteration or demolition, as it thinks necessary, of the building, or any part thereof, so erected or re-erected:
Provided that the concerned local government may, instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable.”
Serial No. 32 (supra) empowered the concerned Local Government to stop erection or re-erection, alteration or demolition of such erection or re-erection within twelve months of the completion of such building/erection or re-erection. Through proviso, the concerned Local Government was also given authority that instead of requiring the alteration or demolition of any such building or part thereof, accept by way of composition such sum as it thinks reasonable. If the petitioner constructed the shops without getting approval then it was the responsibility of the concerned Local Government to take necessary action in the light of the sixth schedule of the Punjab Local Government Ordinance, 2001 which deal with “Building and Land use control”.
The T.M.A. Khanpur or Municipal Committee Khanpur never asked the Petitioner to demolish or make alteration in the building nor demanded any composition fee during the period when the area of shops remained within its local limits. The silence for such a long period from TMA Khanpur /Municipal Committee Khanpur tantamount to acquiescence. The history of Town Committee Zahirpeer is not very old it became Municipal committee on 01.01.2017 and remained till 06.11.2019 and thereafter from 07.11.2019 to onward it became Town Committee. The sealed shops which were situated within the local limits of T.M.A. Khanpur/Municipal Committee Khanpur came within the limits of Town Committee Zahirpeer, after its creation.
15. From perusal of the Punjab Local Government Act, 2019 it appears that although penalties and sentences are provided in the “Fifteenth Schedule” Column ‘I’ of “Offences relating to land use and building control” at serial number 62 regarding erection and re-erection of a building without approval of sanction plan but nowhere in the said Act ibid and schedule any procedure is provided or available to the effect that how a plan for erection or re-erection of a building would be submitted and sanctioned. To overcome this difficulty the Punjab Local Government (Amendment) Ordinance, 2021 was promulgated on 03.02.2021, through which “Seventeenth Schedule” was inserted in the Act ibid wherein Chapter “B” deals with “Building Control, Erection and Re-erection of Buildings” and in Serial No. 15 to Serial No. 27 complete procedure for erection and re-erection of a building was described. But this procedure deals with fresh erection or reaction and nowhere in this schedule provided any mechanism for already constructed building. This amendment Ordinance stood repealed after the expiration of ninety days in the light of Article 128 of the Constitution of Islamic Republic of Pakistan, 1973. After repeal of this amendment Ordinance, the Act ibid restored in its original position, wherein no provision and procedure is available for approval of a site plan for erection and re-erection of a building.
16. In absence of any law, rule or procedure how a plan for erection or re-erection of a building will be submitted and how the Respondents’ authority of a Town Committee Zahirpeer can ask for submission of a plan for fresh approval of erection and re-erection of a building plan and issued notices for its non-compliance and taking any action for violation of the Act.
17. The respondent-authority before sealing of the shops was required to follow the requirement of due process and rule of natural justice by giving hearing to the petitioner. The public functionaries, who are acting on behalf of the State are supposed to act justly and fairly and protect the rights of the people. After introduction of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973, fair trial and due process is a fundamental right of every citizen of Pakistan. The august Supreme Court of Pakistan while dealing with this proposition in a case titled as “Ishtiaq Ahmed v. Hon’ble Competent Authority through Registrar, Supreme Court of Pakistan” (2016 SCMR 943) held as under:
“The right of due process is not new to our jurisprudence and finds expression in the provisions of Article 4 of the Constitution. This right has been interpreted by this Court in several pronouncements. The case of New Jubilee Insurance Company v. Natioal Bank of Pakistan (PLD 1999 SC 1126) summarizes the features of that right very aptly. It is held that the right of due process requires that a person shall have notice of proceedings which affect his rights; such person must be given a reasonable opportunity to defend himself; the adjudicatory tribunal or forum must be so constituted as to convey a reasonable assurance of its impartiality and that such tribunal or forum must possess competent jurisdiction. Insofar as the right of fair trial under Article 10A of the Constitution is concerned in Suo Motu Case No. 4 of 2010 (PLD 2012 SC 553) that right has been interpreted to ensure the grant of a proper hearing to an accused person by an unbiased competent forum; that justice should not only be done but be seen to be done. The above noted features of this right share attributes associated with the fundamental right of access to justice enunciated by this Court in Benazir Bhhtto v. Federation of Pakistan (PLD 1988 SC 416 at page-489), Al-Jedah Trust v. Federation of Pakistan (PLD 1996 SC 324) and reiterated in Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 405 at page 562). This right casts on an adjudicatory tribunal or forum a duty to treat a person in accordance with law, to grant him a fair hearing and for itself to be an impartial and a fair tribunal. Upon comparison, the said constitutional conditions requirements expand the principles of natural justice which according to our jurisprudence are treated as inherent rights that underlie the elements of fairness, both in terms of hearing as well as impartiality of the forum.”
In another case titled “Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others” (PLD 2019 Supreme Court 745), the august Supreme Court of Pakistan held as under:
“The right of hearing of a party to a lis is one of the fundamental principles of our jurisprudence which is guaranteed by Article 10-A of the Constitution in its assurance of a “fair trial and due process” to a litigant.”
18. Learned counsel representing Respondents Nos. 6 and 8 raised an objection that the petitioner has a remedy of appeal in the light of Notification dated 10.07.2020 issued by the Local Government, against the proceeding under Section 281 of the Act ibid. The respondents initiated the action of sealing the shops of the petitioner under Section 284 of the Act ibid and regarding that proceeding remedy of appeal has not been provided elsewhere in the Act ibid. Chapter XXXIV of the Act ibid deals with Municipal offences and their cognizance. Section 277 of the Act ibid states that municipal offences listed in the second column of the Fifteenth Schedule shall be prosecuted or dealt with in the manner as given under Sections 278 and 279 of the Act ibid. In this scenario the remedy of appeal is provided under Section 281 against the orders passed under Sections 278 and 279 of the Act ibid. Otherwise it is settled law that mere fact, that the alternative remedy of appeal is available to the parties, does not bar the jurisdiction of this Court especially if the remedy is not adequate and efficacious. The rule of alternate remedy is to regulate the constitutional jurisdiction and exception to the rule is where the impugned order is patently illegal and without jurisdiction as in the present case whereby the shops of the petitioner are sealed without any prior inquiry to determine whether there is any serious threat and danger to public life and property and secondly it is without hearing, is violative of fundamental rights and therefore without jurisdiction and wholly without authority, hence, the constitutional petition is maintainable. In this regard reliance is placed on the case titled as “Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others” (PLD 2006 Supreme Court 697).
“This principle has to be read along with the principle laid down in the case of Anjuman-e-Ahmadiya, Sargodha ibid wherein it has been held that if an adequate remedy provided by law is less convenient, beneficial and effective in case of a legal right to performance of a legal duty, the jurisdiction of the High Court can be invoked. Similarly, this principle has been reiterated in The Murree Brewery’s case ibid wherein it has been held that if a statutory functionary acts mala fide or in a partial, unjust and oppressive manner the High Court in exercise of its writ jurisdiction has power to grant relief to the aggrieved party.”
Further reliance is placed upon “Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others” (2012 SCMR 455), “Muslimabad Cooperative Housing Society Ltd., through Secretary v. Mst. Siddiqa Faiz and others” (PLD 2008 SC 135) and “The Muree Burwery Co. Ltd. v. Pakistan, through The Secretary to Government of Pakistan, Works Division and 2 others”, (PLD 1972 SC 279). Hence the objection raised by the respondents against maintainability of this petition on account of availability of alternate remedy has no substance.
19. In the light of foregoing discussion, this petition is accepted and the impugned notices issued and the subsequent action of sealing the shops of the Petitioner by Respondent No. 6 Town Committee, Zahirpeer are declared, illegal and without any legal justification, hence are set aside. As a consequence, the matter is referred to Town Committee Zahirpeer (Respondent No. 6) for decision afresh through detailed reasoning with specific reference to the fact that the petitioner raised construction without any objection from the relevant authority and no prejudice has been caused to the public-at-large due to the said construction. Further, in case the petitioner fails to prove that site plan was approved in his favour, Respondent No. 6 would see the possibility of grant of ex-post facto approval of the site plan if the concerned act and rules provided any mechanism and procedure in this regard. No order as to costs.
Before parting with this order, Respondent No. 6 is directed to immediately de-seal the shops and the future happenings would follow the fresh order to be passed by Respondent No. 6.
(Y.A.) Petition accepted
