KARACHI, Feb 8: The Sindh High Court has directed the KDA to charge Non-utilization Fee (NUF) on the basis of original occupancy value at rates prescribed in the allotment letter/original contract, and declared the subsequent enhancements of occupancy value and rate illegal.

The order was passed by a division bench comprising Justice Sabihuddin Ahmed and Justice Zia Pervez while allowing a constitutional petition of Dr Muhammad Junaid who had made the KDA and its director recoveries the respondent in the case.

The petition pertaining to the KDA’s claims with regard to a plot owned by the petitioner in Block-5 in Clifton was filed through Afzal Munif, uncle of the petitioner. The petitioner was represented by counsel Raja Qasit Nawaz Khan, H. A. Rahmani and Aziz A. Malik.

The petition stemmed from a notification of the KDA through which rebate of 40 per cent was allowed in NUF on payment of a lump sum payment by March 31, 2001.

On the basis of that notification the respondent No 2 issued notice /challan after allowing 40pc rebate for an amount of Rs438,734 for the plot in question which on the face of it is charged at commercial rates while the plot was allotted and bought in an open auction for GPC whose rates are much lower.

It was also his case that higher rates had been charged on current occupancy value contrary to the terms of allotment, auction and possession letters, hence the impugned demand notice was unjust, harsh, exorbitant and illegal and arbitrary.

It was also his case that he was fully qualified to claim under NUF as in the absence of the petitioner, who was in the USA, it was not possible to raise construction and run a clinic.

He contended that charging of “fee” carried the element of services which was absent in this case as no services had been provided by the KDA.

The petitioner also contended that the levy of NUF was without any legal basis as it was levied without prior sanction of the provincial government. The impugned notifications did not have approval or sanction of the provincial government headed by the governor. It was a settled law that no executive order could be passed except under some contemporary law.

The imposition of NUF had no nexus with the services provided by the KDA as the KDA was compensated by the governments concerned, the petitioner claimed maintaining that the NUF was also discriminatory and violative of fundamental rights, and abuse of discretion and authority vested in the Authority.

It was contended that the levy of NUF at enhanced occupancy value and new rate of NUF on commercial basis was also unjust and illegal as the respondents were public functionaries, and therefore they had no authority to act against the contractual obligation and to interfere with the lawful property rights acquired by the petitioner.

The court allowed the petition. Reasons will be recorded later.