2022 CLC 1261
From bare reading of section 284 of the Punjab Loch Government Act 2019 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.
2022 CLC 1261
At serial No.62 two types of offences have been described, firstly, erection or reerection 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 wa s introduced through amendment Ordinance which relates to violation of sanction building plan but this offence stood omitted with the e laps Act.
2022 CLC 1261
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 Article 4, 9, 18, 23 and 24 of the Constitution of Islamic Republic of Pakistan, 1973.
2022 CLC 1261
There is no cavil with the proposition that erection or 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.
2022 CLC 1261
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.
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