SH. AZMAT SAEED, J.-- Through this Constitutional Petition No. Objection Certificate (N.O.Cs) issued by respondents Nos. 2, 5 and 8 to 29 permitting the establishment of CNG Stations by respondents Nos. 3 & 4 and respondent No. 6 have been challenged.
2. Brief facts leading to the filing of this Constitutional Petition are that the petitioner is running a Petrol Pump at 233/B Peoples Colony, Faisalabad for the last several decades. Respondents Nos. 3 & 4 as well as respondent No. 6 wish to establish CNG Stations at the properties owned by the said respondents respectively. Such properties are situated within the confines of the People Colony.
The said respondents sought and were eventually granted the requisite N.O.Cs. From the respondents Nos. 2, 5 and 8 to 29 which have been challenged by the present petitioner through this Constitutional Petition. Pursuant to an order of this Court the respondents have filed their written statements.
3. The learned counsel for the parties have been heard and the record appended with this petition has been perused.
4. It is contended by the learned counsel for the petitioner that at the time of inception of the scheme in question plot No. 233/B was designated as a site for a Petrol Pump. The present petitioner established and is running a Petrol Pump/Filling Station at the site. It is further contended that the sites at which respondents Nos. 3 & 4 and respondent No. 6 proposed to establish the CNG Station are not designated or earmarked for the establishment of a Petrol Pump or CNG Station.
Hence, the grant of N.O.Cs. By the other respondents is illegal and in violation of Section 3(2), Section 4(e)(iii) and Section 6 of Disposal of Land by Development Authorities (Regulation) Act, 1998 i.e. Act XII of 1998 as the said sites were originally residential in nature.
5. The contentions of the learned counsel for the petitioner have been controverted by the opposite side. The learned counsels for respondents Nos. 3 & 4 and respondent No. 6 contend that no doubt the sites at which their respective clients are establishing CNG Stations were originally residential in nature. However, subsequently in accordance with the Commercialization Policy, after due process , the roads whereat the said sites are situate were declared to be commercial roads. Whereafter after fulfilling all formalities the said respondents were permitted to carry on commercial activities.
Consequently, applications were filed with the requisite designated authorities for grant of consents and permissions for establishing CNG Stations which were duly granted in accordance with law and the CNG Policy of the Government of the Punjab. It is further contended that on the basis of the said consents and permissions the respondents have expended large sums of money at the site in order to construct CNG Stations. The maintainability of this Constitutional Petition has also been disputed and it is contended that the petitioner and/or his family members have initiated a large number of proceedings before the Civil Courts at Faisalabad in an attempt to restrict and restrain the establishment of the CNG Stations in the said Colony. Such civil suits have all failed. Hence, this Constitutional Petition is not maintainable. It is further contended that his Constitutional Petition is mala fide and has been filed to avoid fair competition. The title of the petitioner qua plot No. 233/B has also been disputed.
6. The learned counsels for the concerned Departments as well as the learned Additional Advocate General Punjab have also controverted the contentions raised on behalf of the petitioner and have taken the plea that any and all actions taken by them are strictly in accordance with law. Hence, the Constitutional Petition is liable to be dismissed.
7. The learned counsel for the petitioner in rebuttal reiterated the above-mentiOned contentions and further submitted that in the host of previous litigations the Government of the Punjab had taken a plea that CNG Station cannot be established except at a site duly designated for a Petrol Pump could not be used for any other commercial purpose. In this behalf copies of written statements filed in a civil suit as well as communications issued by the Housing and Physical Planning Department of the Government of the Punjab were referred. The said documents were not congruent with the stand taken by the said department in their comments filed before this Court.
Consequently, in order to clarify the situation more particularly with reference to the stand of the Government of the Punjab the concerned Secretary i.e. Secretary, Housing and Physical Planning was asked to appear before this Court who categorically stated that as per the Law, Rules and Policy of the Government, of the Punjab a CNG Station can be established at a site designated for use of commercial purposes subject to fulfilment of the terms, conditions and requirements of the Law, Rules and Policy on the subject. He further stated that in case of conversion of use of residential properties for commercial purposes, no separate or specific plots are earmarked for particular commercial use such as establishment of CNG Station. He, however, candidly conceded that perhaps the Commercialization Policy currently in vogue needs to be revisited and re- examined in this behalf.
8. It is an admitted fact on the record and not disputed by either side that .The sites at which the respondents Nos. 3 & 4 and respondent No. 6 are in the process of establishing CNG Stations were originally residential in nature. It is not disputed by any side that the said sites are owned by the vest in private persons and not the Directorate of Housing and Physical Planning. It was equally apparent from the record that the roads whereat the sites in question are situate have been declared to be commercial roads through a notification the vires whereof have not been challenged before this Court through the lis at hand. It is also not the case of the petitioner that any requirement necessary for consummating the act of commercialization has not been fulfilled by the respondents Nos. 3 & 4 and respondent No. 6 respectively, such as the payment of any dues.
The Act XII of 1998 caters for change of use of a property i.e. From residential to commercial with C.L.R. the approval of the competent authority as is evident from a bare reading of Section 3(2) thereof.
And for such purpose Punjab Commercialization of Properties Rules, 2001 have been framed in exercise of powers conferred, inter alia, under Act XII of 1998. A commercialization of Policy also has been framed in this behalf. In the instant case the roads where the properties of respondents Nos, 3 & 4 and respondent No. 6 are situated have been selected/decaled for commercialization purposes. The vires of the said notification has not been challenged by the petitioner through the present Constitutional Petition.
9. Reference to Section 4 of the Act XII of 1998 by the learned counsel for the petitioner is also misconceived as it pertains to the mode of disposal of plots vesting in the Development Authority and does notapply to the privately owned properties. Hence, the said provision has no application on the properties in question which are admittedly not owned by the Directorate of Housing and Physical Planning but by the private individuals.
10. The Government of the Punjab has issued a CNG Policy whereunder a CNG Station can be established at any site which is commercial in nature. The sites in question owned by the respondents Nos. 3 & 4 and respondent No. 6 are commercial in nature. Hence, basic pre-condition for establishment of CNG Station is fulfilled. The said Policy spells out in great details the requirements, precautions, consents and permissions required for the establishment of CNG Station and it is not the case of the petitioner that the said Policy is ultra vires any law nor that the N.O.Cs. In question have been issued in violation thereof. Thus, in the facts and circumstances of the case no legal infirmity in the issuance N.O.Cs. In question has been established by the petitioner.
11. In pith and substance the case of the petitioner appears to be that when and if a residential, area or plot is allowed to be converted for commercial use, such conversion is not sufficient to permit the establishment of CNG station or Petrol Pump for which purpose specific conscious permission must be granted at the time of commercialization. Unfortunately, neither the law nor the Rules, Regulations or Policies made thereunder cater for such a restriction. The right to carry on business, trade or profession is a fundamental right guaranteed by Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 and any restriction thereto cannot be read into the law in the absence of a specific provision in the law regulating or otherwise applicable to such trade, business or profession.
12. In this view of the matter, this Constitutional Petition cannot succeed and is hereby dismissed.