MUNICIPAL CORPORATION Versus SHAKEEL HUSSAIN
DEEDAR HUSSAIN SHAH, J ‑‑‑This judgment will govern Civil Petitions Nos. 1898, .1899, 1900 and 1901 of 2000, as the facts and case‑law are identical and same, as well as these are directed against a common judgment of the Peshawar, High Court, Peshawar, dated 13‑9‑2000; passed in Writ Petitions Nos.343, 347, 355 and 383 of 1999.
2. C.P. No. 1898 of 2000
This petition has arisen out of Writ Petition No.343 of 1999. In the said petition the contesting respondents claimed that they are owners of plot situate at Hospital Road, Peshawar. They submitted plan for construction of a plaza to Municipal Corporation, Peshawar, on 10‑6‑1997 for approval and sanction. They deposited security of Rs.25,000 on 12‑1‑1998, as also Malba fee on 20‑1‑1998. The proposed construction was also notified in Daily "Mashriq" on 12‑8‑1997 for inviting objections. It is alleged that when the plaza was about to complete the petitioner‑Corporation restrained the respondents from further construction. It was followed by notices under sections 144 and 188, Cr.P,C. issued by the Sub‑Divisional Magistrate, Peshawar and an F.I.R. in that behalf was also lodged in Police Station Kabli, they were also served with a demand notice of Rs.10,66,070 containing price of city wall allegedly encroached by them, the cost of Chajja and other penalties. It was also alleged that the building site plan had not been approved.
3. C. P. No. 1899 of 2000
The facts of this case are that the respondent‑company herein filed Writ Petition No.347 of 1999, claiming that it had raised a plaza at Hospital Road, Peshawar and submitted construction plan for approval of the Municipal Committee, Peshawar, and had also deposited the requisite fee for approval and cost of Malba. It is also claimed that the proposed construction was also notified in Daily "Mashriq" Peshawar on 26‑8‑1997. When the construction of five‑storeyed building was completed in June, 1998, the then Chief Minister during his visit ordered that those buildings, which had been constructed illegally by encroaching the city wall, should be demolished. Thereafter, the petitioners declared the plaza as illegal for raising construction not in accordance with the site plan and encroaching land of the city wall.
4. C.P. No. 1900 of 2000
Succinctly stated the facts of this case are that the respondent (petitioners in Writ Petition No.335 of 1999) also constructed a plaza known as Golden Tower at Hospital Road, Peshawar, According to the respondent he had duly submitted the building site plan to the petitioners for approval. He was directed to deposit requisite fee and after grant of permission he constructed the said plaza, but under the instructions of the then Chief Minister the same is under consideration of the petitioners for demolition.
5. C.P. No. 1901 of 2000
Facts, in brief, are that the contesting respondents filed Writ Petition No.383 of 1999 challenging the orders dated 9‑1‑1999 along with other notices issued by the petitioners under sections 79, 80, 64 and 165 of the Local Government Ordinance, on the ground that they had raised and completed the multistoreyed building/plaza on Naz Cinema Road, Peshawar City on the land already leased out to them by the Evacuee Trust Property Board. They claimed that they had deposited the requisite fee for approval of the plan etc., and that the same was approved and the petitioners had not raised any objection during the course of the construction of the said plaza.
6. Mr. M. Sardar Khan, learned counsel for the petitioners, inter alia, contended that the notices to stop illegal constructions were served by the petitioner‑Corporation on those, who had committed serious violations of the laws/rules/regulations, made encroachments on public property, and usurpation of the city wall etc., therefore, any reference to alleged visit and issuance of directives of the then Chief Minister for demolition of such buildings is misplaced. He next contended that without prejudice to the above and even if the benefit to this effect is extended to the respondents the Chief Minister of an elected Government, in a democratic set‑up, is the Chief Executive of a Province and is not debarred by law to ensure that laws are complied with and those who violate the law are not allowed to do so, that nowhere was it admitted, as has been wrongly stated in the impugned judgment that the construction plans allegedly submitted by the respondents had not been approved within the prescribed period of sixty days. That in the guise of the said plans, which were never approved, the respondents raised illegal construction and had also encroached upon public property etc., that the conduct of the respondents has been such as to preclude them completely from invoking the Constitutional jurisdiction of the High Court and they could not be considered to be "aggrieved persons" within the meaning of Article 199 of the Constitution. In support of his contentions, learned counsel has relied on Raza Khan v. Vice‑Chancellor, N.‑W.F.P. University of Engineering and Technology, Peshawar (1982 SCMR 560), Abdur Rashid v. Pakistan and others (1 69 SCMR 141), Saifullah Khan and others v. Settlement Commissioner and others (1982 SCMR 853), Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others. (PLD 1973 SC 236) at p.240) and Deen Carpets Ltd. v. Iqbal Ghuman, I.T.O. and another (PLD 1989 SC 516).
7. Mr. Jameel Khan, learned counsel for the respondents contended that the impugned judgment of the High Court is based, on the proper appreciation of law; that the main emphasis of the petitioners is based on illegal construction at the site without approval or construction of covered area in excess of site plans submitted for approval; whereas this very question has been properly decided by the learned High Court; that the respondents submitted plans with requisite approval fee, Malba charges and waited for sufficient long time for formal approval, as required under section 79(4) of Local Government Ordinance; that the petitioners and the local authorities have already decided to regularize the additional construction work by asking the respondents to pay additional penalty for the "Chajja" and had recommended to collect sale price of "city wall" which is available in the record of the writ petitions; that the petitioners have also adopted ‑similar formula in case of "Abdul Jalil" and "Bahadur Khan", whereas the respondents were denied the same treatment, which is discriminatory in nature and is in violation of the fundamental rights as envisaged in Article 25 of the Constitution of Islamic Republic of Pakistan; that the entire construction work was carried on under the supervision, direction and control of Municipal Authorities, Peshawar. Had this not been the case, the plazas could not have been' constructed. That, notices were served under the directive of the then Chief Minister, but the Chief Minister himself was not competent by law to take action; that the only course available to the petitioners for any irregularities, if committed by the respondents. was to regularize the construction by penalizing them as provided by law; that the respondents were compelled to approach the High Court for the re-dresseal of their grievance because illegal directions of the then Chief Minister were to be implemented; that no doubt the Chief Minister is the Chief Executive of the Province but in all fairness he has to act in accordance with law and not otherwise; that the reference of the case of "Abdul Jalil" was raised m the rejoinder and the case was also argued on the same line; that the respondents were preliminary allowed to proceed with construction work while the plans were kept pending for more than 60 days, but after the expiry of the said period, the Municipal Corporation asked the respondents to submit revised plan allowing them to construct Chajja or additional covered area, that the reference of sale of city wall was placed before the High Court along with rejoinder, sale certificates were also produced and the impugned judgment has also covered the above issue. Learned counsel also referred to paragraphs 9 and 10 of the writ petitions, contending that in the recent past the respondents were served with the notice of Demand of Rs.10,66,070 (copy of the notice was attached with the writ petition) which contained price of the city wall, penalties and cost of "Chajja" and that the proposed construction was carried beyond the limit of the city wall and the same was demolished by the petitioners themselves in order to widen the existing road, therefore, the question of payment of city wall does not arise; that the petitioners in their written statement did not specifically deny the allegations but formally stated as under:
"9. The contents of para. 9 are likewise incorrect/misleading. The conduct of the petitioners has throughout remained such as to make them clearly disentitled to any relief or ask for any indulgence in equity. They have acted so maliciously and illegally and yet they are so bold and have the audacity to allege mala fides on the part of the respondents.
10. The contents as framed are a poor apology, indeed a blatant falsehood to explain away their misdeeds. There is not an iota of truth therein. They are vehemently refuted."
According to the learned counsel, the respondents through an application dated 3‑2‑1999 also submitted revised approved plans, the relevant para, thereof reads as under:
He also pointed out that the Administrator, Municipal Corporation, Peshawar, sent a reference to the Secretary, LG&RDD, N.‑W.F.P., Peshawar, the relevant paragraphs thereof read as under:
"6. Peshawar Municipal Corporation has now come up with the proposal that they should either go for demolition of the plazas by use of hydraulic hammer or breaker by engaging the services of the experts from abroad or compound the case with the owners on payment of compensation fee noted against each
7. The Department of LG&RDD has examined both the options and feels that the demolition of these plazas through any device is cumbersome and damages cannot be ruled out in the circumstances, the second opinion i.e., composition will be the safe choice. "
Learned counsel further pointed out that price of Rs.2,60,000 per Marla was also worked out by the Revenue Officer vide order dated 8‑5‑2000, as requested by the petitioners, the relevant paragraph thereof is as under:‑‑
No doubt the Chief. Minister is the Chief Executive of the Province, but he has to act under the law, and as the notices were issued at his behest, the only opinion left to the respondents was to approach the High Court for proper relief and the respondents were rightly aggrieved persons and they properly approached the High Court for justice. He has also referred to the order of this Court, dated 14‑11‑1995, passed in Peshawar Development Authority through its Director‑General and others v. Noor Habib and others (C.P.L.A. No.336 of 1995).
8. We have considered the arguments of the learned counsel for the parties and have also examined the record very carefully. It is not disputed that all the respondents had submitted their construction site plans for approval of the petitioners but the same were not approved within .the stipulated period of 60 days as provided under section 79(4) of the N.‑W.F.P. Local Government Ordinance, which reads as under:‑‑
"(4) All building applications presented under this section shall be registered in the manner provided in the Bye‑laws, and shall be disposed of as early as possible but not later than sixty days from the date of the registration of the application, and if no order is passed on an application within sixty days of its registration, it shall be deemed to have been sanctioned to the extent to which it does not contravene the provisions of the building Bye‑laws or of the Master Plan or Site Development Scheme, if any."
The bare reading of the above section shows that if the approval of the site plan is not accorded within the prescribed period, presumption would be that the same has been approved after it was submitted before the authorities concerned. It is also not disputed that in all the cases requisite `site plans were submitted to the concerned authorities within the prescribed time, which were followed by revised site plans, therefore, it cannot be hold that the respondents acted in violation of the Ordinance and approval was not granted to them. We are also not able to find out as to whether non‑approval of the site plans was communicated to the respondents within the period prescribed by law. It is also borne out from the record that the city wall at different places has been sold to different parties by the Government from time to time and the sale certificates in this regard issued in favour of Mst. Nighat Shaheen, Abdul Majid, Liaquat Ali, Saifullah and Haji Muhammad Hussain etc., were produced and placed in the files to the‑writ petitions in the High Court.
9. Learned counsel for the respondents stated at the Bar that the case of "Abdul Jalil" has been regularized by the petitioners, which is identical to the case of the respondents and the learned counsel for the petitioners did not deny. Presumption is that the concerned authorities have already regularized the case of "Abdul Jalil".
10. Now we would like to discuss the case‑law cited by the learned counsel for the petitioners. In Deen Carpets' case, supra, this Court held that "Petitioner not approaching Court with clean hands‑‑‑High Court can decline relief to the petitioner on account of his conduct". The rule laid down in Abdur Rashid's case is identical. In Raunaq Ali's case, supra, this Court observed that:
"Where, therefore, the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, had come to the conclusion, that the orders of the Deputy Claims Commissioners verifying the claims of certain persons were illegal arid without jurisdiction. It was held that it could legitimately refuse to set aside the order of the Officer on Special Duty (Central Record Office), even though the Aatter was clearly without jurisdiction."
11. We have gone through the case‑law cited by the learned counsel for le the petitioners, and we are of the considered opinion, that in the matters in hand the respondents had a legitimate cause of action and they approached the High Court with clean hands supported by documents, which are referred to hereinabove, and the same were also perused and examined by the learned High Court while deciding the writ petitions. The case‑law cited by the learned counsel has no relevancy to the decisions of these petitions.
12. Keeping in view the documentary evidence produced by tile respondents as well as the provisions of law discussed above, we are of the opinion, that the contentions of the petitioners' learned counsel are not tenable. So far as the question of controversy of city wall is concerned, it would be pertinent to reproduce below paras. 2 and 3 of the order of this Court dated 14‑11‑1995, passed in C.P.L.A. No.336 of 1995:‑‑
"The brief facts are that respondents Nos. l to 8/plaintiffs purchased the wall for a sum of Rs.43,567 on 20‑7‑1987 from the Provincial Government. When the above respondents submitted plan for the construction of building‑ on the site of the wall, the same was refused by the petitioners on the ground that it was a historical building having‑an archeological feature. This was resisted by above respondents. They inter alia filed a suit, which was decreed to spite of contest by the petitioners. It was found that factually the wall was constructed in the year 1935 and, therefore, it had no historical or archeological importance. The appeal and the revision also failed. The petitioners have, therefore, filed the present petition for leave to appeal.
In support of the above petition Sardar Akhtar Ali, learned Advocate Supreme Court who has appeared for the petitioners, is unable to point out any legal infirmity ' finding ` recorded by the three Courts below as to warrant grant of leave. The fact that the above respondents had purchased wall for the aforesaid sum stands proved. The objection, which was raised by the petitioners; was found to be not sustainable by the Courts below. The petition has no merits. Leave is refused."
13. In view of what has been stated above, the impugned judgment is based on proper appreciation of the facts, law and equity, which does not call for any interference by this Court. Resultantly, the petitions are dismissed alongwith the listed applications and leave is refused.
Q.M.H./M.A.K./M‑242/S Petition dismissed.