ORDER This Intra-Court Appeal is directed against order dated 23-7-2009, passed by the learned Judge in chamber in Writ Petition No.5942 of 2009 titled Mazhar Saleem v. Tehsil Municipal Officer etc., the petition was allowed and Tehsil Municipal Officer was directed to issue "No objection certificate" in favour of the petitioner for installation of CNG station in residential area.
2. The learned counsel for the appellant has argued that the learned Judge in chamber has decided the case with undue haste in as much as that writ petition was instituted on 20-7-2009, notice was issued to the appellant for 23-7-2009 and it was decided without affording an opportunity of hearing as well as without affording an opportunity to the appellant for filing report, Para were comments. The impugned direction was issued to the T.M.O. For issuance of the no objection certificate for installation of CNG station. It is argued that while passing the impugned order the learned Judge in chamber had not adhered to the provision of Rule 6(C) Punjab Land Use (Classification, Reclassification and Redevelopment), Rules, ,2009 which prohibits commercial use of residential area. Since the CNG Station being installed was in the thickly populated area it was not possible for the appellant to issue "No Objection Certificate". It was alleged in petition that from Mission Chowk to Chowk Divisional Commissioner Office, Sahiwal, three CNG stations already existed. According to the learned counsel for the respondents the assertion was baseless and incorrect, as there is no CNG Station on the said road. It is also argued that the impugned order has been passed on the basis of a misstatement of fact. According to the learned counsel for the appellant it was imperative for the learned Judge in chamber to discover the truth before passing impugned order. It is also maintained that it was the residential house of the respondent which was being converted into CNG station, near the residence of DPO on one side and residence of DCO and other government officials in front thereof existed. It is also prayed that under the Provisions of The Punjab Land Use (Classification, Reclassification and Redevelopment) Rules, 2008 the Tehsil Municipal Officer had no discretion in issuing the "NOC" in residential area; therefore, order passed by the learned Judge in chamber merits to be set aside.
3. On the other hand, learned counsel for the respondent has maintained that I.C.A. Is not maintainable against the impugned order; that the contention of the appellant that there is no CNG station on the same road is factually wrong and that the petitioner is being discriminated, he is entitled to have the CNG station as claimed by him in the writ petition. The learned counsel for the respondent has relied on Secretary Education (Schools), Government of Punjab, Civil.
Secretariat, Lahore and 2 others v. Tariq Mehmood, PTC Teacher (2005 PLC (C.S) 851) and Agha Muzamil Khan through General Attorney and 8 others v. Consolidation Officer, Lahore and 62 others (PLD 2005 Lahore 422) in support of his contention that I.C.A. Is not maintainable against the impugned order.
4. We have anxiously gone through the contents of memorandum of appeal and heard arguments of learned counsel appearing from both sides.
5. Ordinarily, this Court is not inclined to exercise jurisdiction in I.C.A. Where it is not maintainable.
Prima facie, it also appears that this I.C.A. Is not maintainable. However, in the peculiar circumstances of this case and on the basis of averments made in the Memorandum of Appeal we are inclined to hold that the learned Judge in chamber had acted in undue haste and the impugned order has been passed without jurisdiction in as much as that the appellant was not allowed to file report and comments nor an opportunity was afforded to the departmental representative to go through the contents of writ petition, which was presented before the learned Judge in chamber on 20-7-2009. Notice was issued for 23-7-2009 which was conveyed telephonically without copy of this petition and on 23-7-2009 order was passed. We could not reconcile with the idea of allowing a CNG Station in an area of 1 Kanal 2 Marla and 8 Sarsahis situated in thickly populated area of the City. CNG Station has its on hazards Which must be taken care of. The rules mentioned above have also not been considered while passing impugned order.
It would have been appropriate to direct the appellant to apply mind to the application of the petitioner, consider it and pass speaking order thereon and if any grievance was made out from order passed by the department an appeal was provided under the rules. Without resorting to the departmental remedy the petitioner jumped to the writ jurisdiction wherein the learned Judge in chamber has passed hasty order. We think ends of justice would be met if direction is issued to the appellant to entertain application of the writ petitioner, decide the same within a period of 15 days and if order is not found favourable by the respondent/writ petitioner he shall file appeal before departmental authorities under the rules, which shall be decided within a period of 30 days. .With the above direction impugned order is set aside and this appeal is disposed of with no order as to costs.