ABDUL MAJID Versus KARACHI. DEVELOPMENT AUTHORITY
NASIR ASLAM ZAHID, J.‑‑‑ Petitioner had purchased the plot in question from one Abdul Rafai Samdani, to whom the plot had been allotted by K.D.A. on 19‑5‑1976 and thereafter a lease‑deed was duly registered in favour of Abdur Rafai Samdani on 6‑4‑1977. According to the petitioner, he has constructed a single storeyed building on the said plot and the property is self occupied. Admittedly, according to the lease‑deed, occupancy value @ Rs.17.50 per sq. yard were recovered from the lessee, Abdur Rafai Samdani. After about 10 years, a demand was made by K.DA. upon the petitioners, the present owners of the property, that certain occupancy charges had not been paid in respect of the plot in question and the same should be cleared. Other notices were also issued by the K.DA. According to the K.DA. by a notification dated 18‑6‑1977 of the Government of Sindh, published in the Sindh Government Gazette, Part I‑A of 23‑6‑1977, the Government was pleased to accord approval to the Governing Body Resolution of K.DA.No.550 dated 20‑12‑1975 regarding enhancement of the reserve price of land in certain K.DA. Schemes w.e.f. 1‑1‑1976. According to the said Notification the reserve price of land was enhanced to Rs.80 per sq. yard in respect of residential plots in Gulshan‑e‑Iqbal, K.DA. Scheme No.24, Karachi. The demand of the K.DA. was in respect of differential between Rs.17.50 per sq. yard charged from the original allottee as mentioned in the lease‑deed registered on 6‑4‑1977 and the enhanced reserve price of Rs.80 mentioned in the said Notification.
2. The petitioner challenged the demand by filing this Constitutional Petition. By order dated 25‑5‑1988, this Petition was admitted to regular hearing to consider the respective effect of the said Notification.
3. We have heard at length the arguments of Mr. Abul Khair, learned counsel for the petitioner and Mr. S.H. Kizilbash, learned counsel for K.DA.
4. According to the learned counsel for the petitioners, the Notification is dated 16‑6‑1977 and was published in the Gazette on 23‑6‑1977 and both the dates are much later in time than the date on which the lease‑deed was executed and registered in favour of the original allottee in April, 1977. According to the learned counsel for the petitioners, the Notification will take effect either from 16‑6‑1977, the date of the Notification, or from 23‑6‑1977, the date on which the Notification was published in the Sindh Gazette.
5. Mr. S.H. Kizilbash, learned counsel for KDA. on the other hand, submitted that no 'question of retrospectivity of any Notification arises. His submissions were two‑fold in this regard. It was first submitted that the Notification does not say that it is retrospective and, secondly, it was argued that K.DA. had passed the resolution on 20‑12‑1975, much earlier than the date on which the plot was allotted and lease registered in favour of Abdur Rafai Samdani, and by the Notification, the enhanced rates were made effective from 1‑1‑1976 and on the basis of the said Notification, the differential was being demanded from the petitioners.
6. On a question from the Court, Mr. Kizilbash, learned counsel for K.DA. submitted that the K.DA. has no power to enhance the rates of occupancy value, but enhancement or modification in the rates is suggested and recommended by K.DA. and, on approval by the Sindh Government, such rates become effective. It is, therefore, apparent that on the passing of the Resolution No.550 by K.DA. on 20‑12‑1975, the rates did not stand enhanced as K.DA. 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.DA. 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 that date as it would amount to giving retrospectivity to the Notification, which cannot be done under the law.
7. Another submission was made by the learned counsel for K.DA. that this Petition is incompetent as Sindh Government has not been made a party to the Petition as a respondent, when the effect of the Notification dated 16‑6‑1977 was being determined. In this case, notice had been issued to the Advocate‑General and Mr. AA. Muhammad Ally, learned Addl. A.‑G. has appeared. He has not made any submissions. The petitioners challenged a demand made by K.D.A. We are of the view that the petition is not liable to be dismissed on the ground that Sindh Government had not been made a party in this petition.
8. As a result, this petition is allowed and the demand of K.DA. against the petitioners in respect of differential of occupancy value is declared to be without lawful authority and to be of no legal effect. There will be no order as to costs.
A.A./A‑1247/K , Petition accepted.