Shah Nawaz Vs Secretary Local Government Department, Khyber Pakhtunkhwa, Civil Secretariat, Peshawar.

ruDGMENTSHEE'T

PESTIAWARHIGH COURT. PESHAWAR

.IUDICIALDEPARTMENT

W.P -\o.444-Pl2022 with CM No.55l- P/2025 Shah Nawaz Vs. Secretarv I-ocal Government DeDartrnenl Khvber Pakhnrnkhwa. Civil Peshawar & 02 others

Date of hearing 26.M.2025

Mr. GuI Sadbar Khan- . for the oetitioner

Abdul Rauf AAG for the

Mr. Alam Khan Adcnzai. Advocarc. alonswith Habib.lamal. Housins Officer.

PDA.

.ruDGMENT MUHAMMAD NAEEM ANWAR. I: - Shah Nawaz, the petitioncr through filing of the instant petition under Article 199 of the Constitutir>n o[ Isliunic Republic ol' Pakistan, 1973 has rluestioned the dcmand ol' Peshawar Developrnent Authority (" PDA") lbr excessive transfer fee based on the notilication of respondent No.l dated 01.03.2019 with prayer that notilication may be declared illegal, urjust, unconstilutional and against lhc law.

2.'fhe chequered history of the matter in hanrl that respondents No.l and 2 initiated the auction of 18 Kan:r.l plot situated in Civic Center, Phiue-II, Hayatabad, which was meant for consEuction of "Three Star Hotel", M/S Marwat Enterprises participated in thc auction and was held highest bidder, rvas ollered to deposit the amountol'the plot. The dispute arose about the pricc ol' the plot, which resulted into litigation. Noncthelcss, thc rnatter was scttlcd :uli<:ably belbre this Court, as such, M/S Marwat Enterprises deposited the enhanced arnount and plot was transferred to it, the petitioner entered into zur agreemen[ with the transferee/allottee and has become partner to the extent of l/3'' share of the plot. However, during conshuction, an isstte arose between the petitioner and M/S Marwat Entcrprises none0reless, PDA has issued a notice to start construction work and to submit the building plan within 15 days else, the allobnent shall be cancellcd. 'lhe petitioner approached to the court for restraining ol' cancellation ol'thc plot through declaratory suit, though initially, thc

suil. was resistcd by M/S Marwat Enterpriscs, but in thc written statement, it was contended that a settlement took placc tlrrough which, the plol was sold to the petitioner, as such, the petitioner has become the owner of the entire plot. The petitioner approached to PDA for transler of the plot in his name, but they refused, a.nd their refusal was questioned before civil court on L7.09.2014. During pending adjudication, an application under Order VII Rule I I CPC was filed by PDA, which resulted into rejection of the plaint, which was questioned by the petitioner through appcal. Before the appeal court ir settlement took place, application wa-s submitted, joint statemenl was recorded on 06.07.2015 but instead of decreeing the suit, thc appeal sas dismissed. 1'he pctitioner being not satislied approached to this Court through C.R No.541Pl2015 questioning thr: order dated 13,07.2015 ol' lezrncd Additional District.ludgc-XIII, Peshawar with the prayer that in view of the slatement, he rvas e ntitled for a decree in his lhvour in view of the terms and conditions setded in compromise. Civil Revision was heard by this Court on 96.10.2015, and was allowed, suit of the plaintifl was decrced as per terms and conditions of the compromise. Director General, PDA filed an application under Section l2(2) CPC for setting-aside the order dated 26.10.2015. Application filcd by the applicant was dismisscd, however, with the observation that Rules and Regulations of PDA iue applicable in the matter and the same cannot be Iloutcd in thc garb of thc judgemcnt ol'this Court, therefore, the s:unc would be dealt with by PDA in accordance with the Rules and Regulations, the order was announced on 15.02.2016. Petitioner filed an application to Director Geneml, PDA for transfer of the plot in terms of thc decree passed by this Court and being aggrievcd approached this Court fior enforccmenV implementation of the judgement of this Court dated 26.10.2015 passed in C.R No.54%P/2015 through Civil Miscellaneous No.5l0-P/2018, which was disposed o[ iu the lbllowing tenns: - oln open bu4 the respondents assues the Cout to implement the jufument of this Cowt in its leuer and spirit, after the decision of this &wtin CM No.61-P/2018 i.e. l2(2) CPC petition ia C.R No.542-P/201,5 in uiew of which both the CM arc allowed but rryith a

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note of waniag to the rcspondents to be carcful in firarre."

3.In view of the statement made before thc Court and decision of this Courton 28.01.2019, on 01.03.9019 the plot was transf'erred in flavour of petitioner, after payment of all dues and lbes to PDA and Government Taxes but under protest subject to ?ury contra-ry decision/order by the Higher Appellate Court i.e. Supreme Court of Pakistan. 'fhc petitioner through the instant petition has questioned thc rcccipt ol'enhanced tax in Lerm ol'notilication datcd 01.01.2019. 1'he pctitioner through Civil Miscellaneous No.187& P/2022 have placed on file the valuation tablc lbr the year 2014 about the rate per marla of District Peshawar, wherein Hayatabad 'Iownship was at Serial No.l, with valuation for commercial plot per ma.rla was Rs.18,88,042/-, according to him he was entided fior transfer ol'the plot in view of the valuation table for the year 2014 and not as mentioned in the notification dated 01.02.2019, which reflects the valuation of commercial plol at Hayatabad Township at Serial No.3l arnounting to Rs.28,66,056/-, Rcspondents were dirccted to lunrish the cornments, who havc opp<>scd drc issuance of writ through their comments by asserting therein that the respondent.s havc charged the petitioner on the ratcs of FBR, where the rates for transt'er were enhanced through notilication datcd 01.02.2019; hence, the pefition deserve dismissal.

4.Arguments heard record perused.

5.'lhe only confoversy, rvhich requires rcsolution is that; on which rate. the petitioner could be charsed for Eansfer of plot i.e. as per the valuation table of the vear 2014 when for commercial olot in Hayatabad l'ownship. per marla was Rs.18.88.042l- or the time when the olot was transferred in term o fno tffication dared 01.02.20I9 rellectins the transler o[ one marla commercial plot amounlne tcr Rs.28.66.056/-P

6.It is an adnritl,ed fact that the resporxlents wcre party in Civil Suitb€aringNo.l72/l liled on 12.07.20L4 decided on 10.10.2014. It is also an admitte d I'act that Housing Oflicer, PDA was defendant No.2, Dilector Geneml, PDA was dcl'endant No.l in Suit No.172/1. It- is also an admiued fact drat respondents were also party'in C.R No.542/2015, rvhich was allorvcd by this Court on

26.10.2015. 'Itre controversy was between pctitioner and M/S Marwat Enterprises aginst whom, the pctitioner was seeking declaration ol'his ownership with further prayer of ransfer of plot in the namc ol'the petitioncr through PDA.

7 . No doubt, respondents being the authority are maintaining the record o[ the properties owned by individuals Ibr which, they are being paid by the owuers in accordance with law especially fbr transfer of plot/property etc. The matter between petitioner and M/S Marwat Enterprises has come to an end and petitioner had become the owner of the property. In such ar1 eventuality, on the basis ol'the decree of the cour! respondenLs were legally required to transf'er the pkrt in the name of petitioner and thc petitioner was under obligrtion to pay the charges as per the dren Rules and Regulations in vogue but thcy instead of'trarsf'erring t}le plot in the uanre ol' petit.ioncr t;uestioned the judgement ol' this Court through application undcr Section l2(2) CPC. 'l'hough, thcir application was dismissed, lrowever, their rights were protectcd when this Court has observed tJrat Rules and Regulations ol'PDR applicable in the matter cannot be flouted in the garb of the judgement of this Court, therefore, the sarne would be dealtwith by PDA in accordance with their Rules and Regulations. The application of the respondents PDA was dismissed on 15.02.2016 against the judgement & decree dated 26.10.2015. It is worth to mention that beingaware, they were requircd to tlzrns{'er thc plot but they creatcd impediment, which resulted into sulrrnission ol' thc application to Dircctor General, PDA by ttre pctitioner and that [oo was not accorded, which resulted into another application by thc petitioncr Iiled before this Court seeking implementation of the judgement' Therealier another application i.e. CM No.30GP/2018 was liled by the petitioner befbre this Court for direction to respondens/PDA to act in accordance with the order dated 16.10'2017 passed in earlier civil miscellaneous and lastly CM No.5l0-P/2018 was also filed, which was decided on assurance of the respondents/PDA to irnplernent thc .iudgcment of this Court in letter irnd spirit. This order was passcd on 2U.01.2019 when thc pkrt was lraursf'erred, the

pedrioner was charged in consonance with notification of

8.No doubt, the rates were enhanced, but who was at fault is a question requiring resolution. The respondens/PDA have delayed the matter from 2015 till 28.01,2019 when last order was passed but even than it was transferred on 01.03.2019. The notification based on which, the petitioner was chargcd was issued on l" of February that too, alter the announce ment ol' thc judgernent. During hearing, rve have asked learned counscl representing PDA as to whether there was any such notification lor enhancement of the transfer fee, in between the valuation table of the ye ar 2014 and the last enhancement vide notification dated 01.02.2019P However, he could not produce any such document. In addition, it is an admitted fiact that no such enhancement was ever notified because the petitioner was charged for transfer fee of plot being based on the notification dated 01.02.2019. The petitionerwas held as the owner of the plot through judgement rnuch earlier to the notification and evcn the application o[ t]re respondents under section l2(2) CPC was dismissed earlier to t]rc notilication datcd 01.02.2019. Moleso, it was not the case ol'rcspondenls that the petitioner has not requested for transfer ol' plot because numbers of the applications for implementation of the judgement were filed and were decided by this court directing the PDA to transfer the plot in the name of petitioner subject to the translbr fee thus, they were under an obligation to transfer the plot in terms of the direction of this Court but they lingered the matter till 01.03.2019 thus, for no justification and for no good reasons the delay was caused by the respondents which resulted for enhanced tr-ansfer charges fbr no fault ol'petitioner, 1'he pctitioner coukl bc chargc<l for the transf'er lce o[ the plot applicable on the date of decree or on the date ol'dismissal of respondents' application filed under section l2(2) CPC. The question of retrospcctivity and applicability thereof is of much significance. The submission of the leamed counsel for the respondents/PDA that sincc at the ffansfer of the plot i.e. 01.03'1999, the notification dated 01.02.2019 was in field is misconstrued because the stance

taken befbre this Court by respondents/PDA pertaining to tr-ansfer of the propcrty was passed on 28.01.2019 when no such notification was in field.

9.Record rellects that after decreeing the suit in favour of the petit.ioner, respondents have left no stone untumed to create impediment, hunlles and barriers in translerring the property in the narne ol' petitioncr, which resulted into rnultilarious application being submitted lrcfore this Court. 'l]re ellect of notilication dated 01.03.2019 couhl not be given to the transfcr, which was bascd upon the judgement of this Court passed much earlier to that and even *re respondents were bound to transfer the property no sooner had the petitioner got the decree in his I'avour then he was entitled fior its exe cution/implementation and the respondents were bound to exccutc it in is letter & spirit. 'l.l e petitioner has never denie d from the payment of transfer charges rather the respondents clelayed the nrattcr tlrus for their delay the petitioner could not be hzunntercd lbr cnha.nccd charges of' transf'er' ol' plot. lrarncd counsel fbr the petitioner made reliance on the case o[ "Abdul Sattar Vs. Province of the ab throudr Resistrar/Denuw Commissioner I-ahore & another" (1995 CLC 187), however, thc controversy in the ibid case was about the transler charges/stamped duty on the ba"sis of the agreed price/sale considcration, whereas, in the instzurt rnatter, irrespective of the sale consirleration fixed betwe en the parties, the valuation table is the dctermining f'actor for char ging the vendee lbr tralsfer of'the property at per marla; thus, judgement relicd upon by the counsel for the petitioner being distinguishalllc cannot be applicd to the instant pctitbn. Morcovcr, when a sLlhltory notilication is issued under a delcgated authority (e.g., by a minist-ry or regulatory body), it generally u*.es prospectivc ellect unless: (a) the law under which it is issued expressly allows retrospective operation. (b) The notification ilsell' states a retrospective date, and such retrospectivity is authorized by the parent statute. Rcliance is placed on the case of "@ent-Qf&kistal throrrsh S ec?e ta/ Ministrv of Commerce L Serrel-eriat lslamabad Versus Messrs, Villa.se Developm Ormnization. v.p.o. l.andrwan . Di56id I aki Marwat thro udr (General Attornev)

SherAdam" (2005 SCMR 492), "Muhammad 7-afar Niand others Versus Asim Gulzar and others" (2015 SCMR 365), "Al-Noor Susr Mills Lirnited and another Versus Fed on Of Pakistan and others" (2018 SCMR 1799), Conb:oller General Of Accounts Versus Fazil Ahmad. DAO EC (C&W Division HanEu) and others" (2021 SCMR 800).

10.By considering dre contention of learned counsel for the parties, principle of prospectivity, the valua[ion table earlier to the notification dated 01.02.2019, judgement pa^ssed in favour of the petitioner, the instant petition is allowed, and it is held that: o lt is a well-established orinciole of law that un essex oresslv or bv necessary imDlication made retros Dective. laws or notlfications operate prospectively a The oetitione/s rirhts, havinr b een crvstalllzed bv the decree in 2016. cannot be subiected to a fee e nhancement introduced throuch notlficatlo n dated 01.02.2019.

o ADolvins the e hanced fee retrosoectlvelv wou d amount to imooslnl a flnanclal burden wlthout authorihr law vlolati nc orlncloles of natural lustice and lerltlmate exoectation Hetrce, the transler fee charged based on notific:rtion dated 01.02.2019 is hercbydeclared againstthe law, illegal and unjustthe petitioner is entitled for returned of excess amount received from hirn which shall be retumed to the petitioncr by the respondeuts. No ordcr as to c()sts Ann

26.M.2025

JUDGE

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