CH. MUHAMMAD TARIQ, d.- This I.C.A has been directed against the judgment dated 24.5.2011 passed by learned Single Judge in writ petition No. 863/2011.
2. Brief facts of the case are that the appellant is owner of plot No. B-l-23 Satellite Town Rawalpindi.
The appellant filed an application with ancillary document on 7.7.2005 to respondent No. 3 for the commercialization of above said plot and sanctioning of building plan for construction of a commercial building. After scrutinizing the documents, respondent No.3 vide letter dated 26.6.2006 directed the appellant to deposit Rs. 9, 40,948/- within 30 days from the receipt of demand letter.
However, respondent No. 3 offered that if the amount is deposited within the stipulated period of (30 days) a rebate of 5% will be extended to the appellant.
3. While sanctioning the building plan respondent No.3 further directed the appellant to provide 15 feet set back on the side facing main road while 10 feet set back either side, In compliance of above demand letter, the appellant deposited Rs. 8,93,935/- within the period of 30 days and also provided set back on the front side as well as 10 feet area facing the other side but thereafter, the appellant came to know that respondent N0.3/TMA has deprived the appellant from his valuable immovable property by misrepresentation. The appellant had surrendered 10 feet set back facing 30 feet road while there is no rule/regulation in Building bye Laws or under the Local Govt. Laws to surrender land for parking on two sides of a commercial building. So the appellant approached respondent No.3 and . Asked to revive the land which was through misrepresentation, the appellant was forced to surrender in favour of T.M.A but they refused the prayer of the appellant. So the appellant filed an appeal before the Secretary, Govt. of the Punjab, Local Govt, and Community Development Department which also failed vide order dated 19.8.2009. The appellant was left with no option except to i.e a writ petition which met the same fate and it was dismissed on 24.5.2011.
Since the appellant was not present and the matter was heard in the absence of appellant which is against the principle of natural justice. Hence this Intra-Court Appeal.
4. Learned counsel for the appellant contends that the appellant was deprived of 10 feet area of his plot on the side facing to 30 feet road by misrepresentation of respondent No.3. Since there is no such rule or regulation which empowers the TMA to refuse sanctioning of building plan unless an owner of land surrender area for. Parking on both sides of his commercial plot. This fact was not considered throughout, ICA be allowed, impugned judgments passed against the appellant be set-aside and respondent No.3 be directed to approve revised construction plan strictly in accordance with the provision of law.
5. Conversely, learned Additional Advocate General assisted by learned counsel for the respondents has opposed this ICA and has contended that there are so many precedents in which the owners of commercial building have surrendered their lands for parking on two sides. Further contended that the appellant had already constructed and completed his building so as this belated stage, the appellant cannot ask the respondents for revised sanctioning of building plan.
The instant appeal is without any merit, it be dismissed.
6. Arguments heard. Record perused.
7. The first objection raised by respondents was that since the appellant had already completed his building according to the sanctioned plan so at this belated stage, he cannot ask for sanctioning of a revised plan and further cannot claim that the area of 10 feet which he had already surrendered in favour of T.M.A be restored in favour of appellant. To resolve this controversy Mr. Laiq Khan Swati, Advocate was appointed as Local Commission with a direction to inspect the site and submit his report whether the building has been completed or it is still under construction and further that whether any other owner of commercial building in the vicinity have left set back on any other side of their building except front side.
8. The learned Local Commission visited the site in presence of parties and on 11.7.2011 submitted his report and observed as follow:-- "In fact the building of the petitioner has been constructed up to the roof of the basement, no shop etc has been made even in the basement which is like a hall and the material etc is gathered at the site and no construction is being raised over the roof of the basement. 15 feet set back has been left from the front and 10 feet set back has been left from left and right sides respectively in accordance with the order of the commercialization committee of TMA. No set back in any of the building if worth mentioning in the entire vicinity has been left more than 10 feet from the front and even they have not left from the either side or back even a single feet, as a set back, which shows the respondents are not abiding the rules of the TMA and factually the petitioner was/is treated discriminately."
9. According to the Commission Report, the appellant had constructed building up to the roof of the basement no shop etc has been made even in the basement. He has further observed that the appellant has left 15 feet set back from the front side and also 10 feet set back left and right side respectively. At the same time, learned Local Commission has observed that no set back in any of the buildings situated in the vicinity of appellant's building was left. This report was never challenged by the respondents by filing objections petition nor did respondents raise oral objection in this regard which mean that they agree with the report of local commission.
10. When further confronted, learned Addl. Advocate General or learned counsel for the respondents could not produce any provision of law in the Local Govt. Laws or Building Laws of TMA which authorize the TMA to ask an owner of land to surrender his land in addition to front side in favour of TMA. The record of case highlights that the behaviour of TMA towards the appellant was not only is wedded with discrimination but unconstitutional, illegal and void. The TMA had travelled beyond its jurisdiction. This is a glaring example of high handedness who had tried to extract maximum because of helplessness of appellant. Since TMA cannot compel an owner of land to surrender his land in his favour against the law.
11. As a result of above discussion, we are of the considered view, that respondent No.3/TMA has travelled beyond his jurisdiction because no law provide that an owner of land must surrender his property in addition to front setoff. Therefore, this ICA is accepted, impugned orders passed by all the forums below .Are hereby set aside. The surrender deed in favour of TMA is hereby declared cancelled and respondent No. 8 is directed to sanction a revised plan of appellant's building as prayed in the writ petition.