2009 PLP 71 (MLD)

ALI AKBAR QURESHI, J.

The petitioner through this constitutional petition has sought the invalidation of letters, dated 23-5-2006 and 17-11-2006 whereby the request of the petitioner for commercialization of his property was rejected.

2. The petitioner, who is intended to establish a CNG dispensing Station, approached to the concerned Departments for issuance of No Objection Certificate. All the concerned departments as stated by the petitioner, issued the No Objection Certificate, but the respondent-LDA refused to commercialize the site owned by the petitioner on the ground that the site proposed to be used to establish a CNG Station, falls within 1143 meters, prohibited radius range of Ammunition Depot. Multan Road, Niaz Beg, Lahore, therefore, the request of the petitioner cannot be acceded. The petitioner for the redressal of the grievance given number of applications and also filed the constitutional petition but the respondent-LDA finally rejected the request of the petitioner to commercialize the property vide letter, dated 17-11-2006, impugned herein.

3. In response of the notice, the respondent-LDA filed report and para wise comments and reiterated the grounds taken in the aforesaid letter for rejection of the request of the petitioner. In para. 8 of the para wise comments, it is mentioned that the Commercialization Committee in its meeting examined the case of the petitioner for commercialization but finally rejected on the ground that in terms of the Notification, dated 17-9-1989 issued by the Government of Pakistan, No Objection Certificate cannot be issued to any property which falls within 1143 meters prohibited radius range of Ammunition Depot, Multan Road, Lahore.

4. Mian Iftikhar Ahmad, Advocate, learned counsel for respondent-LDA contended that the LDA cannot issue the No Objection Certificate or to commercialize the property because of the Notification, dated 17-9-1989 issued by the Government of Pakistan as the property in question is situated within the radius of the Ammunition Depot, Further contended that the respondent-LDA has not commercialized the plots of the order landowners, therefore, this petition is not maintainable.

5. The main thrust of the learned counsel for the petitioner while arguing the case that the petitioner is being treated discriminatory as within the prohibited radius range, many other petrol pump and CNG stations are working so the petitioner cannot be deprived of his valuable constitutional right to do the lawful business. Next contended that all the other concerned Departments have already issued No Objection Certificate, therefore, the refusal on the part of the respondent-LDA to commercialize the site of the petitioner is without any lawful authority and justification particularly in the circumstances when the other land owners are using their property commercially. Learned counsel in support of his contention, referred the name of few petrol pumps established within the radius of 1143 prohibited zone range, the names of the same are. (i) Shell Pump situated within 825 meters. (ii) PSO pump situated within 568 meters. (iii) Pentagon Factory situated within 598 meters and (iv) Saudagar Thermopole Industry situated within 725 meters. Learned counsel lastly contended that the Hon'ble Supreme Court of Pakistan as well as this Court has already decided in plethora of judgments that nobody should be treated discriminatory and no one can be restrained to do the lawful business but in accordance with law. Reliance is placed on Naseem Mahmood v. Principal, King Edward Medical College, Lahore and others (PLD 1965 Lahore 272), I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SCMR 341) and (1991 MLD 1988).

6. The contents of the Constitutional petition and the para-wise comments filed by the respondent-LDA revealed that there is no denial that the petitioner is the lawful owner of the property; the other few persons/land owners are doing their business while establishing the petrol pump and other Industries within the radius as pointed out by the LDA while referring a notification, dated 17-9-1989 issued by the Government of Pakistan, the other concerned Departments have already issued No Objection Certificate to the petitioner, the site of the petitioner falls within the controlled area of the LDA and the request of the petitioner has been rejected on the ground, that the proposed site falls within the prohibited range of the Ammunition Depot. To ascertain the factual position at the site, the Director Commercialization was directed by this Court to appear. In compliance of the direction, the Director Commercialization appeared in the Court and confirmed that some other petrol pump and Industries are established and working within the prohibited radius of the Ammunition Depot. It was further affirmed that till today, the respondent-LDA has not taken any action or initiated any proceedings in terms of Notification, dated 17-9-1989 issued by the Government of Pakistan. When asked to the Director Commercialization that why the petitioner is being refused or treated discriminatory, the said Director could not offer any satisfactory explanation but reiterated the only ground which was taken while rejecting the request of the petitioner for commercialization. Learned counsel for respondent-LDA submitted that the LDA has no objection to commercialize the site of the petitioner but is unable to perform his duty because of the instructions given by the Government of Pakistan in the Notification, dated 17-9-1989, the contention raised by the learned counsel has no force as the others, already are doing their business within the said radius area and till today no action has been taken by the LDA. Meaning thereby, the LDA because of its inactive conduct has impliedly given the commercialization to them so apparently there appears no justification to reject the request of the petitioner for commercialization of the site. The other Government Departments who had issued the No Objection Certificate not only to the petitioner but others, must have carefully examined the instructions given by the Government of Pakistan in the aforesaid notification so the refusal on the part of the LDA on the basis of the aforesaid notification has no legal sanctity. The Constitution of Pakistan 1973 has already given the guarantee to all the citizens to do the lawful business and all the legislations including the Lahore Development Authority Act, 1975 are subject to the provisions of Constitution, 1973 Article 25 is reproduced hereunder:-- (1) All citizens are equal before law and are entitled to equal protection of law, (2) There shall be no discrimination on the basis of sex alone. (3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Reliance is placed on Government of Baloshitan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). The Hon'ble Supreme Court of Pakistan while dealing with the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan has laid down the principles for application of equality clause of the Constitutional which are reproduced:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reasons for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and lia5iities imposed; (vii) that in order to make a classification reasonable it should be based-- (a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. Even otherwise, the LDA has not pointed out any other illegality or irregularity committed by the petitioner in making the request of commercialization of the property owned by him, therefore, the petitioner is also entitled for the same, treatment as observed by the august Supreme Court of Pakistan in case titled as I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341).

7. For the foregoing reasons, this petition is allowed, the letters, dated 23-5-2006 arid 17-11-2006 are declared to be illegal, unlawful and unjustified and the same are hereby set aside, the application filed by the petitioner for commercialization of his property/site to establish the CNG Dispensing Station, shall be deemed to be pending and decided in the light of the aforesaid findings. The petitioner obviously shall pay all the dues demanded by the LDA for the said purpose. No order as to costs. M.B.A./A-147/L Petition allowed.