2000SCMR1417 (PLP)

CH. MUHAMMAD ARIF, J.

Leave to appeal is sought against the judgment, dated 11-2-1997 passed in I.C.A. No.254 of 1995, whereby judgment, dated 28-5-1995 made in Writ Petition No. 10326 of 1994, was upheld. 2: The dispute herein relates to commercialization of Property No.3/E-II, situated at Stadium Road, Gulberg-III, Lahore, owned by respondent No. 3 herein.

3. Mr. Munir Ahmad Bhatti learned counsel for the petitioner vehemently argued that submission of No-Objection Certificates from the owners of adjoining properties is a condition precedent for vesting jurisdiction in the Lahore Development Authority, hereinafter referred to as L.D.A., in terms of Regulation No.96(A)(4) of the Lahore Development Authority Building Regulations, 1984, hereinafter referred to as the Regulations.

4. The case of the petitioners is that they are owners of the residential Bungalow bearing No.2A/E-II, Gulberg-III, Lahore and are residing there since 26-6-1965. It is alleged that respondent No.3 was a subsequent purchaser of the bungalow in dispute than that of the disputed plot of the

5. Respondent No.3 requested the L.D.A. for commercialization of her bungalow but the L.D.A. vide letter, dated 8-12-1984 declined the request on the ground that the same cannot be considered unless the application is accompanied by NOCs from her immediate neighbours.

6. The grievance of the petitioners is that notwithstanding the decision of the L.D.A. not to grant commercialization to respondent No.3 in the absence of NOCs from the ,adjoining neighbours including the petitioners, the. LDA granted such permission which is violative of Regulation No.96(A)(4). This happened on 21-8-1994.

7. The petitioners challenged the aforesaid order before the Lahore High Court by means of Writ Petition No. 10326 of 1994 which was dismissed. vide judgment, dated 28-5-1994. The petitioners thereafter preferred I.C.A. No.254 of 1994 praying therein that:-- .the impugned order, dated 21-8-1994 passed by the respondent L. D. A. allowing the request of respondent No.3 for commercialization of her Property No.3/E-II situated in Gulberg-III. Lahore may kindly be ordered to be set aside, having been passed at the back of the petitioners condemning unheard to the petitioners, against law and facts and against the Lahore Development Authority Act, 1975 and Lahore Development Authority Building Regulations, 1984 being of no legal consequence."

8. As stated above, the mainstay of the petitioners' case is that fn the absence of NOCs from the owners of the properties in the neighbourhood, the L.D.A. was not competent to grant commercialization and that too without hearing the petitioners in terms of Regulation No.96(A)(4) of the Regulations. The same plea was urged, duly considered and repelled by the Division Bench of the High Court, inter alia, with the following observations:-- " ....Merely because as a matter of concession on one side of the property of respondent No.3 she has been allowed to open an entrance from the green plot of L.D.A. which may be by the side of Main Boulevard Gulberg it cannot be argued that property of respondent No.3 should be deemed to be abutting on the said road in order to attract the provisions of Regulation No.96(4) regarding production of 'No-Objection Certificate' of the owners of adjoining properties before commercialization was permitted as we have held that for determining this fact the original position of the plot in the scheme is to be made the basis." As to the plea that the application of respondent No.3 for commercialization of the plot in dispute was earlier rejected, the learned Judges observed:-- '...We have also observed above that the properties of both the parties are not abutting Main Boulevard Gulberg, therefore, if any of the functionaries of the L.D.A. intimated the appellants that production of NOC in respect of commercialization of such properties was necessary on the erroneous assumption as if the relevant Regulations were applicable to such properties it cannot....and no argument can be raised in judicial proceedings to destroy right of any party or to claim any right based on that where none existed. " It was further observed that it was the Director-General, LDA, who was competent authority to take decision in the matter. In the instant case, the application of respondent No.3 was earlier rejected by an officer who was not competent to take decision in the matter. On these premises, the learned Division Bench observed as below:-- "The correctness of the legal position that in any case it was the Directot-General who -was the competent authority to decide the matters relating to commercialization, and as to requirement of production of NOC, or otherwise being a matter connected for taking decision whether commercialization of a particular property should be allowed or not, any admission in this behalf erroneously made by any other officer of the L.D.A. who exchanged correspondence with the appellants without the approval of the Director-General would not amount to a finding or an admission binding on the Director-General and the LDA. Learned counsel for appellants has. not been able to show that the officer who took stand in the letters addressed to the appellants that request for commercialization of property shall not lie considered unless accompanied by a NOC erroneously assuming that such a certificates was .necessary was made after the approval of the Director-General, therefore, argument of learned counsel for respondent No.3 that some lower officer in the L.D.A. made erroneous admission on a particular fact which was required to be determined by the Director-General in order to favour the appellants behind the back of respondent No. 3 appears to have some force. "

9. The learned Division Bench also took into consideration the failure on the part of respondent No.3 to append NOCs from the owners of adjoining properties with her application which was rejected 3 years prior to the grant of the commercialization and held that:-- " .....This power was conferred obviously to avoid a situation where any of the owners of the adjoining properties might without any justification or reason use the provision of production of NOC to blackmail the owner of the property who wanted to commercialize it. As has been observed, earlier also the commercialization of the property by the L.D.A. was allowed but respondent No.3 could not avail of the said facility as she could not deposit the fee. It no doubt establishes that as a matter of principle L.D.A. had earlier no objection to commercialization of property of respondent No.3, therefore, in our view it was ...in furtherance of the same that commercialization has been allowed for which respondent No.3 has already suffered as she had to pay a huge amount which she has paid for availing of this permission. "

10. The afore-quoted excerpts from the impugned judgment are a complete answer to the petitioners' pleas in their entirety. It is not necessary to dilate upon the point raised by the learned counsel for the petitioners in relation to submission of NOCs from the owners of the adjoining properties any further. Suffice it to say that in. the finding recorded by the learned Division Bench of the High Court, after perusing the material available on record as also after hearing the parties to support of their respective cases, it was rightly concluded that respondent No.3 could not avail of the facility of commercialization of her property on account of her failure to deposit the fee in that regard.

11. In these circumstances it is not necessary to decide as to whether the provisions of the Regulations are directory or mandatory. This aspect will be examined in some other appropriate case. No other point was raised.

12. In view of the foregoing discussion, the instant petition fails and is hereby dismissed. Leave is refused. - Q.M.H./M.A.K./H-12/S Petition dismissed.