ALI AKBAR QURESHI, J. - The petitioner through this Constitutional petition has sought the invalidation of letter 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 department as stated by the petitioner, issued the No Objection Certificate, but the respondent-L.D.A. 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 Meter prohibited radius range of Ammunition Depot, Multan Road, Niaz Baig, Lahore, therefore, the request of the petitioner cannot be acceded. The petitioner for the redressal of the grievance given number of applications and she also filed the Constitutional petition, but . The respondent-L.D.A. 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 L. D.A. Filed report and para-wise comments and re., the grounds taken in the afore-said letter for rejection of ii.. 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 meter prohibited radius range of Ammunition Depot, Multan Road, Lahore.
8. Mian Iftikhar Ahmad, Advocate, learned counsel for respondent-L.D.A. Contended that the L.D.A.
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- L. D.A.
Has not commercialized the plots of the other landowners, therefore, this petition is not maintainable.
9. 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-L.D.A. To commercialize the site of the petitioner is without any lawful authority and justification particularly in the circumstances when the others 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 with 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 vin 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 A/aseem, 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 SC 341) and (1991 MLD 1988).
10. The contents of the Constitutional petition and the para-wise comments filed by the respondent-L.D.A. 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 L.D.A. 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 bf the petitioner falls within the controlled area of the L.D.A. 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 Deport, It was further affirmed that till today, the respondent-L.D.A. Has. Not taken any action or initiated any proceedings in terms of the 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-L.D.A. Submitted that the L.D.A. 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 L.D.A. Meaning thereby, the L.D.A. 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 afore- said notification so the refusal on the part of the L.D.A. On the basis of the afore-said notification has no legal sanctity. The Constitution of Pakistan, 1973 has already given the guarantee to all the citizen 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 Balohistan 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 principle 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 reason 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 liabilities imposed.
(vii) that, in order to make a classification reasonable it should be based:-
(a) on an intelligible differentia which distinguished person or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object nought 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).
11. For the foregoing reasons, this petition is allowed, the tetters dated 23.5.2006 and 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 the property/site to establish the C.N.G. Dispensing Station, shall be deemed to be pending and decided in the light of the afore-said findings. The petitioner obviously shall pay all the dues demanded by the L.D.A. For the said purpose. No order as to costs.