' SHAHID KARIM, J.---This Constitutional petition, at its heart, lays a challenge to the use of 26-FCC, Syed Maratab Ali Road, Gulberg IV, Lahore (disputed property) as commercial instead of as institutional which according to the petitioner is not the permitted use of the said area according to the reclassification undertaken by the Lahore Development Authority (LDA) in respect of Gulberg Scheme. This, and other challenges, constitute the panoply of the petitioner's attack to the construction of the disputed property.
The Relevant Facts:
2. The facts lend themselves fortunately to some simplification. The properties of the petitioners are either contiguous to or in the close neighbourhood of the disputed property. The disputed property measures 8.6 Kanals and construction is being carried out by respondent No,11 for building the head/corporate office of respondent No,10. The sanction for the construction plan was granted on 30-4-2014. It is submitted by the learned counsel for the petitioner that the provenance of the land use is a Notification No, TP/LDA/590-S/C M P/152 dated 1-2-2012 issued with regard to the Gulberg Scheme and in that Notification titled "Land Use Re-classification Plan of Gulberg Scheme" certain areas in the Gulberg Scheme were re-classified from residential to 'institutional' to 'commercial' without following any of the prescribed procedures of the relevant law. The reclassification of land use was given in Annex 'A' to the Notification dated 1-2-2012. The categories were 'residential plots', 'vacant plots', 'commercial plots' and 'industrial plots'. Based on this Notification, the sanction/approval to the disputed property was granted on 30-4-2014. However, according to him, the property in dispute is being used for a commercial purpose which contravenes the reclassification made by the LDA in respect of Gulberg Scheme. The learned counsel has referred to page 115 of the petition where at Sr. No,1012, finds mention the disputed property. He has pointed out to the class of land use in respect of the property to be institutional. This, according to him, is the document of the LDA itself.
' According to him, the Coca Cola Corporation has struck a deal for building a purpose-built office for its company and it intends to construct a multi-storey building on the said premises for use as its head office. In order to substantiate his assertion that the land use of the property and the permission granted for the land use falls within the ambit of the 'commercial area' and not the 'institutional area', he has referred to page 18 of the reply filed by respondent No,11 (a letter dated 31-102012 issued by the LDA), which is to the following effect:- "It is with reference to your application No,DCC/TP/1854969 dated 10-10-2013 submitted for the consideration of a commercial building use as prescribed vide Notification No, TP/LDA/590-S/ CMP/152 dated 1-2-2012 on the subject plot. The above cited plot falls in Institutional (Health, Education, Offices etc) zone with maximum height of 70 ' The above cited property is hereby allowed for land use conversion as per Land Use Rules (Classification, Reclassification and Redevelopment) 2009 subject to the following conditions:"
' He has also referred to the approval granted for the said project by the LDA which also mentions it to be a commercial use. He further refers to a letter at page 29 of the reply by respondent No, 11 from the environmental protection department which too refers to the land use as commercial.
Last but not the least, he has referred to page 45 of the same reply which is the deed of Lease dated 11-11-2013 between Messrs ANM Properties (Pvt) Ltd. And Coca Cola Beverages Pakistan Ltd.
Wherein too it has been mentioned that the permission is recorded as commercial in the record of LDA as also to page 68 where the nature of activity has been described as commercial. The learned counsel submits that he does not seek to challenge the provisions of the Lahore Development Act, 1975 (Act) in this regard or the Rules relating thereto viz the Lahore Development Authority Land Use (Classification, Reclassification and Redevelopment) Rules, 2009 (Rules 2009), however, he questions the land use of the property on two grounds:--
(i) the procedural formalities for issuing the impugned Notification have not been complied with; and
(ii) even if the formalities stand fulfilled, the area of the Gulberg Scheme in which the disputed property falls has been reclassified from residential to institutional merely and land use for commercial activities cannot be permitted.
' In respect of the proposition (i) above, he has referred to rules 36 and 38 of the Rules 2009 which must be complied with before any Notification in terms of Rule 42 of the Rules 2009 is issued. He submits that the term 'institutional' has been defined to be included in the term `commercial' mentioned in the such Rules and has not been independently dealt with as a separate category. At best, it can be referred to as a sub-category of the commercial. He has referred to the definition of 'institutional use' given in the Rule 2 (xxiv) which defines the nature of activities which can be undertaken under the classification of 'institutional' and which mentions private office to be included in the category of institutional use.
3. Learned counsel initially relied upon section 13 of the Act for support of the proposition that this is the only provision which deals with preparation of schemes. He also referred to section 14 of the Act to submit that any modification of the scheme has to be done by the Authority under this provision.
However, since the learned counsel chose to confine his challenge to the land use of commercial and Institutional and the due importance of these two terms, a reference at present to these provisions may not be relevant for the controversy. Be that as it may, these will be alluded to in the later part of this judgment. However, the primary challenge oscillated from the impugned Notification to the use of the disputed property as commercial which, at best, could be used as institutional only. The grounds of challenge shall be dealt with in greater detail in the determination that follows.
Respondents' submissions.
4. The charge on behalf of the respondents was led by Mr. Waqar A. Sheikh, Advocate, learned counsel for respondent-LDA on whose shoulder fell the burden to be discharged. Mr. Waqar A.
Sheikh submitted that the scheme and its reclassification has a legal pedigree and is based on a study carried out worldwide regarding city business district. He submits that classification of the Gulberg Scheme was done on 29-11-2011, firstly, and then it, was reclassified on 23-2-2012. He has brought forth that more than fifty percent of the Gulberg area has been put to land we under this reclassification and according to him, all these persons are necessary parties to this petition and whose rights would be impinged upon in case the petition is accepted. He has replied to the legal contentions raised by the petitioner's counsel which will be dealt with during the course of this judgment. In a word, he submits that the property in dispute is squarely within the term 'institutional' as given in the Rules 2009 as well as the Lahore Development Authority Land Use Rules, 2014 (Rules 2014). To round off his arguments, he submits that there are three properties on Syed Maratab Ali Road which have been so confirmed for institutional use. He lastly submitted that petitioner No,1 who claims to own '7 FCC' a property opposite to the disputed property has already got three properties of her own converted to institutional use within the Gulberg Scheme.
5. Mr. Ashtar Ausaf Ali, Advocate, learned counsel for respondent No,11 has supported most of the arguments advanced by Mr. Waqar A. Sheikh, Advocate and additionally submits that respondent No,11 has a fundamental right to conduct its lawful business and that the planning permission is within the ambit of Rules 2009 and Rules 2014. He has referred to Annexure `A-1' to submit that the construction was permitted to be raised as an institutional use by the LDA and not as a commercial use. He lastly submitted that the petitioners do not have a sufficient interest in the instant petition in that the petitioner No,1 does not reside at Lahore and petitioners Nos.2 to 7 do not live in the vicinity.
6. Mr. Munawar us &lam Advocate represented respondent No,10 in his brief submissions referred to Rule 6 (b)(viii) of the Rules 2009 to submit that a private office has already bftn catered for in this provision to include the office of a professional not exceeding 25% of the floor area. According to him, the rest of the offices are not to be given a restricted meaning. He has raised the issue of laches and has relied upon Muhammad Rashid v. The State (PLD 1960 Supreme Court (Pak.) 168) for the proposition that the same term used in the same statute at different places ought to be given the same meaning throughout.
Determination
7. Three issues of law which would impact the outcome of this petition are encapsulated as under:
(i) Whether the Gulberg Scheme is ultra vires for its non-compliance with the mandate of sections 13 and 14 of the Act of 1975?
(ii) Whether the Gulberg Scheme has been reclassified in violation of Rules 37, 38, 39 of the Rules, 2009?
(iii) Whether in the alternative and in case the foregoing two grounds did not find favour, the structure being raised at the 26-FCC is included in the term 'commercial use' and not `institutional use'?
8. These issues are being dealt with in seriatim.
A prefatory: ' In this case this Court is concerned with the policy decision of the government (through its instrumentality, the LDA) regarding planning controls, building regulations, urban design, preparation of development schemes, housing, urban development and related works. A prefatory as to the scope of this Court's assertiveness in such matters can best be illustrated by quoting De Smith in Judicial Review (Seventh Edition). This will lend some actuality to the analysis and is stated in the following words:- "Judicial review has developed to the point where it is possible to say that no power-whether statutory, common law or under the prerogative -is any longer inherently unreviewable. Courts are charged with the responsibility of adjudicating upon the manner of the exercise of a public power, its scope and its substance. As we shall see, even when discretionary powers are engaged, they are not immune from judicial review. Discretion has been described as the "hole in the [legal] doughnut", but that hole is not automatically a lawless void. Nevertheless, there are certain decisions which courts cannot or should not easily engage. Courts are limited (a) by their constitutional role and (b) by their institutional capacity." (at p. 19)
"The constitutional status of the judiciary should not, however, excuse the courts from any scrutiny of policy decisions. Courts are able, and indeed obliged, to require that decisions, even in the realm of "high policy" are within the scope of the relevant legal power or duty, and arrived at by the legal standards of procedural fairness. The courts display reserve in impinging upon the substance of policy decisions, but even here they may legitimately intervene if the decision' is devoid of reason and not properly justified. Judges always possess the capacity to probe the evidence and assess whether the reasons and motives for decisions are rationally related to their aims. As will be shown in the chapters that follow, public law has rapidly advanced recently from a "culture of authority" to a "culture of justification". (at p. 21)
"A second institutional limitation of the courts is lack of relative experience. Particularly as the review of fact, or the merits of a decision, is not routinely permitted in judicial review, there are some matters which are best resolved by those with specialist knowledge. Connected with the issue of expertise is that of risk-assessment. " (at p.24).
"Asserting the constitutional capacity of the courts in these situations does not, however, mean that the courts should not recognise both their own constitutional and relative institutional limitations. A's we have already discussed in relation to the question of "justifiability", decisions involving "policy" -the utilitarian calculation of the public good -such as decisions about the levels of taxation or public expenditure are, constitutionally, in the realm of the legislature. In respect of other decisions, the relative institutional capacity of courts and the legislature, executive and other bodies will be relevant to the extent and degree of judicial intervention. Decisions that are polycentric, involving the allocation of scare resources (for example, whether a hospital should provide very, expensive treatments) are similarly not normally suited to decision by courts.
Decision taken by experts, and those best able to calculate risk, indicate some measure of institutional respect." (at p. 591).
ISSUE No,1 ' The learned counsel for the petitioner has challenged the impugned Notification on the touchstone of sections 13 and 14 of the Act. According to him, for all schemes prepared by the Authority, the approval of the Provincial Government has to be accorded. It is then that the scheme becomes valid and is clothed with legality. On the same token, according to him, a classification or reclassification must follow the same route and an approval by the Provincial Government is a sine qua non. The learned counsel made a flanking rather than frontal attack on the basis of these provisions to the impugned Notification. The sections 13 and 14 of the Act for facility are being reproduced as under:-- Preparation of Schemes.---(1) The Authority shall, in such form and in such manner as may be prescribed, prepare schemes for the area or any part thereof.
(2) All schemes prepared by the Authority shall be submitted to the Government for its approval, except those schemes, the provisional estimated cost of which does not exceed such limit [as may be prescribed by rules] or for which no loan or grant is required from the Government."
"13 Land use classification.---The Authority may, at any time, modify a scheme prepared under this Act by way of change of land use through classification, reclassification or redevelopment in the prescribed manner and shalt publish, in the official Gazette, such modification or change."
' The learned counsel relied on the words 'in the prescribed manner' for the proposition that these words clearly convey a meaning to the effect that the reclassification must also have the approval of the Provincial Government and this is the only meaning that can be assigned to these words.
The prescribed manner, according to him, can only be the one given in section 13 of the Act. This argument is a fallacy and should receive a short shrift. Section 13 of the Act itself prescribes that no approval of the Provincial Government shall be required in which the provisional estimated cost does not exceed such limit as may be prescribed by rules or for which no loan or grant is required from the Government. This should put to rest this ground raised by the learned counsel as it has been submitted by the learned counsel for respondent-LDA that in this scheme no loan or grant has been taken from the Government. There is no evidence to the contrary. Further, in the prescribed manner, in my opinion, should be read to mean prescribed in the rules for which the Rules 2009 and now Rules 2014 have been promulgated. It will be seen that the power to modify a scheme by way of reclassification has been conferred on the Authority and if the intent of the law was for it to be approved by the Government, there was no impediment in the way of the legislature for it to be clearly laid down instead of leaving it to suit the reader's fancy. This reminds me of a warning by T.S. Eliot about literary critics who forget that they are dealing with a text and instead find in a work such as Hamlet "a vicarious existence for their own artistic realization." They substitute "their own Hamlet for Shakespeare's." (T.S Eliot, 'Hamlet' (1919), in selected Essays.).
Therefore, the impugned Notification is not ultra-vires sections 13 and 14 of the Act. ISSUE No,2 ' The learned counsel in support of this proposition has relied on Rules 37, 38, 39 of the Rules 2009.
These rules are reproduced as under:-- "37. Selection of project area.-- (1) The Authority shall select the project area by identifying and prioritizing an urban block or group of urban blocks proposed for reclassification in accordance with the following criteria:
(a) trend of changes in the existing land uses;
(b) market demand for the change of land use in the area;
(c) compatibility with adjoining uses;
(d) potential for up-gradation serving road network; and
(e) prospects for redevelopment.
(2) Notwithstanding anything contained in these rules, the Authority shall not select a planned industrial area as a project area unless the same is scrutinized and recommended by the Industrial. Area Scrutiny Committee as per rule 52.
"38. Preparation of reclassification scheme.-- (1) After the selection of the project area the Authority shall prepare a reclassification scheme by:
(a) demarcating the boundaries of the project area;
(b) undertaking survey of the project area including:
(i) a topographic survey;
(ii) land use survey;
(iii) documentation of the existing infrastructure and design capacities;
(iv) assessm ent of existing traffic volumes and design capacity of the road network;
(v) enlistment of key stakeholders, including local non-government organizations, community based organizations, public representatives, traders associations; and
(vi) collection of secondary data regarding utility services, traffic and transportation; (c)compiling and analyzing the collected data;
(d) proposing different options of land use reclassification as per Table "C";
(e) comparing and evaluating the land use re-classification options; and
(f) selecting the preferred option".
"39. Public consultation.-- (1) The Authority shall:
(a) invite objections or suggestion by giving public notice indicating salient features of the draft land use reclassification scheme of a project area on its website, to the key stakeholders of the area and in at least two leading national and one local newspaper;
(b) arrange public hearing' on a. Specified date, time and place; and
(c) maintain record of the proceedings for a minimum period of five years after the approval of draft .Reclassification scheme.
(2) The Chief Metropolitan Planner shall sign and stamp the draft land use re-classification scheme prepared after taking into considerations the public objections and suggestions."
' These rules relate to the procedural formalities which have to be complied with by the LDA in the process of reclassification. These steps have to precede that process. The learned counsel for the petitioner has referred to the preamble of the Act which reflects the specific import and purpose of the law. According to him, the conditions specified in the above rules have to be satisfied and put in place before the actual reclassification is put into effect. His precise submission was that between the period of reclassification and the redevelopment plan is put into effect, no permission for land use on the basis of reclassification can be given and this, according to him, is the implication which can be gathered from a combined reading of rules 37 to 41 of the Rules 2009.
(The scheme of these rules is different in Rules, 2014). This argument is nuanced and prone to inherent contradictions. Initially, the learned counsel for the petitioner has relied upon the rules 36 to 41 of the Rules, 2009 to canvas the proposition that these formalities have not been complied with.
' However, it seems that he did not, at a later stage in his arguments, want to seriously contest or take issue on this position, in that, neither a lapse in the process was pointed out nor were any facts brought forth which could make the impugned Notification procedurally improperly done. The argument regarding redevelopment to precede any permission was raised as a penumbra to the above argument and the entire emphasis in respect of this issue was to the effect that reclassification and redevelopment must be taken together in tandem with each other and until the redevelopment is complete any permission for land use has to be put on a hold. The learned counsel has, for the purpose, referred to an implementation plan for proposed water and sewerage schemes in Gulberg Scheme by WASA to bolster his argument. He submits that no permission ought to be given till the time this plan by WASA has been undertaken. The legal worth of this argument will be addressed later, suffice to say here that the preparation of the plan by WASA amply demonstrates that the LDA has taken elaborate steps towards the legal formalities to be complied with. This document along with others (such as the Urban Regeneration Study Gulberg, Land Use and Traffic Analysis) provides the empirical data for the reclassification.
' This argument in any case, does not take into account rule 45 of the Rules 2009 which is to the following effect:-- "45. Redevelopment plan.-- The Authority shall prepare a redevelopment within one year after the notification of the land use reclassification scheme."
' Reading Rule 45 with the Rules 36 to 41 of the Rules, 2009, holistically, it becomes apparent that the redevelopment plan has to be prepared within one year after the Notification of the land use reclassification scheme. The rules following then delineate the different contours and proceedings regarding the reclassification and redevelopment plan. There is nothing in the rules to suggest that until the redevelopment plan has been put into effect completely, no permission for land use under the reclassification can be granted and I am not prepared to read anything into the rules to such an effect. Be that as it may, the learned counsel for the respondent-LDA has submitted that redevelopment plan has already been prepared and more than 30% has been put into effect and completed. He has made a reference to the re-modeling of MM Alam Road, Hussain Chowk and Kalma Chowk in this regard. He submits that there are only three properties which have been converted to an institutional use on Syed Maratab Ali Road and the subject property is the first on that road which is of such magnitude and, therefore, there is no need at the moment for the redevelopment plan for the said road to be implemented. It will be seen that the learned counsel for the petitioner has implied to be read most of his submissions into the Rules and they cannot directly be culled out through a reading of the rules relied upon by the learned counsel. In fact, the policy of the rules framed with regard to the reclassification and redevelopment seems to be that the two acts, reclassification and redevelopment, shall be initiated and completed as two separate stages of the same purpose yet one, however, is not dependent upon the other nor do the rules place a clog in respect of the grant of permission for land use during the interregnum. Another fact which is bound to exercise a gravitational pull on the said issue is the argument raised by learned counsel for respondent-LDA and it is to the effect that the redevelopment plan can only be implemented from the funds raised for conversion of the land use in consequence of the reclassification. Since this is one of the schemes which is not being funded by the government, the only source from which the funds can be raised is the fee levied for the purpose of conversion of land use. Therefore, the submission of learned counsel for the petitioner is not tenable and does not take into account the ground realities of the functional basis of such schemes. As also it does not take into account the raison-detere of the two functions viz reclassification and redevelopment. I would, therefore, hold that no material has been brought forth to demonstrate a lack of legal formalities in the process of reclassification so as to render it ultra vires on that account. Again cavil was taken to the process of public consultation in respect of reclassification of Gulberg Scheme by the learned counsel on the basis that mere seven days notice was given for the said consultation which is not reasonable. However, Rule 39 of the Rules 2009 does not prescribe any period and, in the absence of anything to the contrary, nothing can be read into the law to this effect. In the case of the petitioners however, no reasons are forthcoming, too, for them to have waited for more than two years to lay a challenge on this ground which could have been done earlier on coming to know about the fact of reclassification. After all, the petitioner No,1 has made use of the reclassification in respect of her own properties.
ISSUE No,3 ' On the threshold, it will be useful to refer to the rules which would be applicable for the resolution of this issue. The learned counsel for the petitioner has, in support of this issue, relied for most part on the Rules 2009, which according to him, will be applicable to the case of the instant petition. But it is important to point out that by the time the building plan was approved by the LDA on 30-4- 2014, the Rules 2014 had already been promulgated on 1-4-2014 and therefore, I shall presume that while granting permission the LDA would have the Rules 2014 in contemplation and not Rules 2009 however, while deliberating upon this issue I shall also refer to the Rules 2009 which for all purposes do not substantially alter the position. Here, a recapitulation of some basic facts regarding the property may be made. The land use conversion of the disputed property to institutional use was granted by the LDA on 31-10-2012 vide letter No,DTP(C)/10035/ LDA/12652. The respondent No,11 purchased the property on 22-9-2013. The Environment Protection Agency, Punjab accorded its approval for the said construction through its letter dated 29-4-2014. The Traffic Engg. And Transport Planning Agency carried out the Traffic Impact Assessment and vide letter dated 2-4- 2014 declared it adequate. On 30-4-2014, the building plan was approved by the LDA.
9. The learned counsel for the petitioner has referred to the definitions of `commercial use' and 'institutional use' given in the Rules, 2009 which are reproduced as under:-- Commercial use "commercial use" means land use which is predominantly connected with sale and distribution of goods and services; "
Institutional use "institutional use means land use which is predominantly connected with education, health, public or private office, hotel, theatre or auditorium; "
' These definitions are in para materia with the definitions given in the Rules 2014. The learned counsel for the petitioner submits that since the property in dispute has been permitted the institutional use, therefore, it has to be a use which comes within the ambit of the term as defined in these rules. He has referred to the term 'private office' included in the definition of institutional use to submit that the present structure is not a private office by any stretch of imagination and the term private office has to be restrictively construed to mean an office of a smaller magnitude with a limited height and certainly not of the scale as the disputed property. According to him, the size of the present structure takes it out of the definition of institutional use and puts it in the realm of commercial use which is a much broader term and in any case is not permitted in the reclassification of the Gulberg Scheme. He has submitted that the term institutional use has not been separately defined in the Rules 2009 but has been included in the term commercial which shows that the legislature intended a restrictive meaning to be given to the term institutional use.
When it was pointed out to him that the term private office is also included in the commercial area by rule 8, he relied upon Understanding Statutes by S.M. Zafar to submit that in exceptional cases different meaning can be assigned to different terms used in one statute. Further submitted that this is a corporate office which should be distinguished from a private office. In a word, his submission was that the term private office should be read differently when used in the commercial area in contradistinction to when it is used in the institutional area. The private office which can be permitted in institutional use can only cater to a small commercial practice and not to a full blown commercial activity as is being proposed to be done in this petition.
10. As I have alluded to above, the applicable rules in this case will be the Rules 2014 and these are the rules which shall govern any determination in the instant petition, for it may not be conceivable that the building permission by the LDA was granted on the basis of repealed rules and not on the basis of current rules. Though the conversion of land use was done in the year 2012 yet the approval of building plan was given on 30-4-2014, when the Rules 2014 were in vogue.
11. The definition of commercial use simply refers to land use which is predominantly connected with sale and distribution of goods and services. This broadly relates to the general activity which can be called commercial in nature viz. The sale and distribution of goods and services. However, the term institutional use as defined, seems to restrict the use to activities other than sale and distribution of goods and services. This is the broad compartmentalization being envisaged by the Rules 2014. However, the rules relating to use of commercial area and use of institutional area given in the body of the Rules give an insight into the defined nature of these two uses. It will be pertinent to mention here that in the Rules 2009 no separate category with regard to the institutional use was elaborated. However, the Rules 2014 do mention the institutional use as a separate category.
Suffice to mention that Rule 5 relates to land use of commercial area and in it are included, as permitted uses, a host of different land uses including multi-storey buildings, apartment, plaza and private office, business facility, shopping mall etc. Likewise, Rule 7 gives the nature of the land use of institutional area and the permitted uses are reproduced as under: "7. Land use of institutional area:
(a) Permitted uses:
(i) educational and research institution (not less than 2 kanal);
(ii) office;
(iii) diplomatic mission;
(iv) religious institution;
(v) park, memorial and monument;
(vi) public utility and buildings;
(vii) community facilities;
(viii) art councils and auditorium;
(ix) local and zonal Municipal and Government offices; and
(x) residences and other uses incidental to the permitted uses but which do not cause any nuisance or hazard."
12. It will be seen that in place of private office which is given in the definition, the term simply 'office' has been used. However, the rest of the permitted uses, brought forth above, would lead to an ineluctable conclusion that the institutional use is not confined to activities on a restrictive or limited scale as the learned counsel invites this Court to hold. For example, it mentions educational and research institution with the condition that it has to be on an area of more than two Kanals which by any means is a large area and so is a park, a monument buildings etc which are permitted uses in an institutional area. Amongst others, one of the permissible uses is the offices of a commercial and financial institution. It would, therefore, be a fallacy to give a restricted meaning to the term private office or an office as used in Rules 2014 and I see no reason why this court should read anything into these rules. This would be tantamount to interference in the policy making domain of the executive and this Court will be loathe to do that. Further I see no reason to give a restrictive meaning to the term office as used in the Rule 7 of the Rules, 2014 to only include a smaller private office space and not a corporate office. No such implication can be read in the said rules. At this juncture, let me pause to dwell on the meaning of the term `office'. This has not been defined in the Rules 2014. As a preface, let me state what Professor Lawrance Tribe has to say as to the basic rule of interpretation, which is thus:-- "In the beginning was the word. In stark contrast to modes of interpretation that place tradition and authority at the center of belief stands the mode that centers on text as the most obviously authentic embodiment of constitutional truth'. (From his essay, American Constitutional Law, published in 'It is a Constitution we are expounding'.). ' Therefore, upon settled principles, this Court shall resort to the dictionary meaning of word 'office'. In Oxford Advanced Learners' Dictionary, 8th Edition, it is defined as under:-- "ROOM/BUILDING 1 [ countable ] a room, set of rooms or building where people work, usually sitting at desks."
' In Longman's Dictionary of Contemporary English, the word office means:-- "I BUILDING [ countable ] a building that belongs to a company or an organization with rooms where people can work at desks:".
' Lastly, in Merriam Webster's Unabridged Dictionary, the word office has been given the following meaning:-- "5 : a place where a particular kind of business is transacted or a service is supplied: as a : a place in which the functions (as consulting, record-keeping, clerical work) of a public officer are performed b : the directing headquarters of an enterprise or organization continuing point of contact of the new student with the college office -Official Registrar of Harvard University* *directives to branch factories were sent out from the New York office* c : the place in which a professional man (as a physician or lawyer) conducts his professional business."
"7 : the company whose place of business is an office; specifically Britain : an insurance company."
13. From the above, it follows indubitably that the word 'office' is used broadly and includes within it corporate offices housed in large buildings. It was held in Kamaluddin Qureshi v. All International Co. (PLD 2009 Supreme Court 367), that:-- "It is a settled principle that when ordinary meanings can be given to the clear and plain unambiguous language of an enactment, the same are to be followed without any addition or deviation..."
14. Further, the term private office has been used both under Rule 5 of Rules, 2014 relating to land use of commercial area as well as in the definition of institutional use. As a general rule, a word used in a statute at more than one places has to be assigned the same meaning unless there is a different intention to the contrary. On the basis of the said rule thus, I would think that the legislature intended the term private office to be interpreted uniformly throughout the statute and not differently. "There is a natural presumption that identical words used in different parts of the same Act are intended to have the same meaning". Atlantic Chasers & Dyers v. United States, 286 US 427, 433 (per Gatherland, J.). In Reading Law, the canon is explained as under:-- "The correlative points of the presumption of consistent usage make intuitive sense. The preparation of a legal instrument has traditionally been seen as a solemn and deliberative act that requires verbal exactitude. Hence it has long been considered "a sound rule of construction that where a word has a clear and definite meaning when used in one part of a...Document, but has not when used in another, the presumption is hat the word is intended to have the same meaning in the latter as in the former part." And likewise, where the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea. If it says land in one place and real estate later, the second provision presumably includes improvements as well as raw land. " (at p. 170).
"The presumption of consistent usage applies also when different sections of an act or code are at issue. "(at p. 172)
' But this argument in any case loses significance in view of the use of the term office simply in place of the term private office in the Rules 2014. Some of the canons of statutory interpretation which will come into play in the further dilation of the instant matter may be referred to at the forefront of the determination. First a reference to the 'fair reading' method expounded in the book 'Reading Law', the interpretation of legal texts by Antonin Scalia and Bryan A. Garner may be made in the following words:-- "The interpretive approach we endorse it that of the "fair reading": determining the application of a governing text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued".
"Among the best historical statements of the fair-reading approach is that of Chief Justice John Marshall: ' To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor Extended to objects not comprehended in them, nor contemplated by its framers; --is to repeat what has been already said more at large, and is all that can be necessary". (,.33)
' Further: words are to be understood in their ordinary, everyday meaning:-- "The ordinary-meaning rule is the most fundamental semantic rule of interpretation. It governs constitutions, statutes, rules, and private instruments. Interpreters should not be required to divine arcane nuances or to discover hidden meanings. Justice Joseph Storry's words are as true today as they were when written in the middle of the 19th century, and they are true not just of constitutions but of all other legal instruments: [E]very word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to, control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings." (p. 69) ' and: "The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it. The judge should not presume that every statute answers every question, the answers to be discovered through interpretation. As the noted lawyer and statesman Elihu Root said of the judge: "It is not his function or within his powers to enlarge or improve or change the law." Nor should the judge elaborate un provided-for exceptions to a text, as Justice Blackmun noted while a circuit judge: the Congress [had] intended to provide additional exceptions, it would have done so in clear language." (p.93)
' Bennion on Statutory Interpretation (sixth edition) may be cited for the following basic canons:- "In the case of an ordinary English word, where Parliament chose not to give it any special meaning, there is no need for the courts to define it.
' The above contrasts the concept of an ordinary word with the concept of ordinary meaning. It would be elegant to avoid this repetition by speaking of ordinary and extraordinary words and their usual or unusual meanings. Judicial usage is too strong for this rationalization, but it is useful to bear it in mind.
' The question of a word's meaning is normally to be answered directly, not by rushing to dictionaries, or by searching the Internet for substitute words and expressions, or by the use of a non-statutory check list; or by recourse to Hansard, or by working through a range of hypothetical situations. It has been said that a word necessarily is a 'linguistically irreducible' word which judges should not replace with a synonym or paraphrase. Asked to consider whether cutting off a woman's hair constituted 'actual bodily harm' within the meaning of the Offences against the Person Act, 1861 S. 47, Cresswe ll J said: 'As there are no decisions directly in point, we must address the problem on first principles, nothing .That, according to Viscount Kilmuir LC in DPP v Smith [1961] AC 290 at 334, "bodily harm" needs no explanation and that the phrase "actual bodily harm" consists of three words of the English language which require no elaboration and in the ordinary course should not receive any...-. (p.
1058)
"Where a word has both a wider and a narrower ordinary meaning the court will, other things being equal, select the meaning which most nearly corresponds to the mischief, so avoiding a casus omissus or casus male inclusus.
' Example 363.11 The question arose whether a self-employed accountant who had obtained work by a dishonest deception fell within the Theft Act 1968 S.16(2) as having been 'given the opportunity to earn remuneration ... In an office or employment'. Held The wider meaning of 'employment' would be applied since otherwise there would be a gap in the legislation". (p. 1063)
' If the argument of the learned counsel were to have its sway, the term private office should not be mentioned in the commercial use list. That is since the counsel lays emphasis on the magnitude and size rather an ordinary every day meaning to be assigned to it. And as we have seen, the words 'private office' only occur in the definition clause and in the rule 7 itself the word 'office' alone has been used which literally unshackles the term and frees it from the prefix private. The intention clearly is to render it an expanded meaning to include any office may it be private, public or corporate. The L.D.A itself has put a limit on the height to which it can be raised for institutional use.
That is a matter of policy and not for this Court to determine. I seek support from the judgment viz. Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (PLD 1988 Supreme Court 53), a ruling cited by the learned counsel for the petitioner himself which lays down that:-- "...Yet there is ample authority for the principle of interpretation that a definition of a term in a Statute is merely declaratory in nature and should not be necessarily inflicted where it does not fit in with the subject or context..."
15. The word 'private office' might refer to a limited space if the arguments were to be accepted but it seems then that the terms private office and public office belong to an obvious and readily identifiable genus viz office. If I were to accept to assign a restrictive and narrow meaning to the word office, this Court would be doing as justice John Marshall Harlan warned, an invitation to judicial law making results inevitably in "a lessening, on the one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the blood stream of our system of government" (John Marshal Harlan, The Evolution of a Judicial Philosophy: selected opinions and papers of Justice John M. Harlan)
16. In furtherance of the discussion, the following passage from the speech of Lord Radcliffe in Smith v. East Elloe R.D. C. (1956) A.0 736 may be referred to where he stated as follows:-- "Of course it is well known that courts of law have always exercised a certain Authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from; and if the authority that confers them prescribes, explicitly or by implication, certain conditions as to their exercise, those conditions ought to be adhered to. It is, or may be, an abuse of power not to observe the conditions. It is certainly an abuse of power to seek to exercise it when the Statute relied upon does not truly confer it, and the invalidity of the Act does not depend in any way upon the question of whether the person concerned knows or does not know that he is acting ultra vires. It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorized person. Probably most of the recognized grounds of invalidity could be brought under this head; the introduction of illegitimate considerations, the rejection of legitimate ones, manifest unreasonableness, arbitrary or capricious conduct, the motive of personal advantage or the gratification of personal ill will. However, that may be an exercise of power in bad faith does not seem to be to have any special preeminence of its own among the causes that make for invalidity. It is one of several instances of abuse of power, and it may or may not be involved in several of the recognized grounds that I have mentioned. Indeed, I thing it plain that the Courts have often been Content to allow such circumstances, if established to speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power had actually proceeded in bad faith."
' However, the courts in interpreting whether a particular decision is at variance with a development plan or for that matter any other statutory plan under the current legislation, have considered that such adjudication is not on the reasonableness of the making of the decision as much as the jurisdiction to make the decision.
17. At this point, it must be borne in mind that courts have to give considerable latitude in the wording of Planning Decisions or Development plans. This is observed in Re: X.J.S. Investments Limited (1996) I.R 750 (a Supreme Court of Ireland- decision), in which Mr. Justice McCarthy giving the judgment of the Supreme Court said as follows:-- "Certain principles may be stated in respect of the true construction of planning documents: -
(a) To state the obvious they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material:
(b) They are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning..."
18. Another aspect which will exercise a gravitational pull on the decision of this Court is the element of certainty which must be brought to bear on all planning permissions. The legislature even though, not specifically, yet as a necessary adjunct of such matters which must be read by way of implication, sought to bring certainty to such plans and decisions and to limit a challenge by way of judicial review to a reasonable period after which a strong case could be made out for laches. In my estimation, the' opportunity of persons to impugn decisions made by Planning Authorities such as LDA must be greatly confined and restricted to a certain reasonable period. This is based on a simple premise: "One must assure that it was intended that a person who had obtained a Planning Permission should, at a very short interval after the date of such decision, in the absence of judicial review, . Be entirely legally protected against subsequent challenge to the decision that was made and, therefore, presumably left in a position to act with safety upon the basis of that decision (K.S.K Enterprises Ltd. v. An Bord Pleanala (1994) AIR 128, per Finley C.J, Ireland Supreme Court)".
19. In many jurisdictions now, a period has been given for such challenge. In the case in hand, the challenge, in pith and substance, is to the reclassification of the land use of Gulberg Scheme. There could not be any other way to challenge the impugned construction, in my opinion. For, the scale, the magnitude, the height etc. Of such structure to come within the institutional use has been prescribed and given in the Rules. It is otiose and irrelevant to assert now that the office block must be confined to a certain restricted level at the whims of the petitioners, while at the same time it conforms to the standards laid down and LDA vouches to it and stands by the permission given by it. What's more, scores and scores of buildings have been constructed on these standards in the Gulberg Scheme since the year 2009 and the impugned structure is not an isolated case. By any stretch of imagination, therefore, the instant petition will be tantamount to a challenge to the entire reclassification of Gulberg Scheme and this cannot be permitted to be done in the guise of this petition. The inherent contradiction which permeates the petition is evident from the fact that the notification impugned is that of 1-2-2012 while the following two paragraphs seem in actual fact, to encapsulate the challenge at the heart of this petition:-- "50. That, nonetheless, as is evident from the language of this definition "institutional use", under the Land Use Rules 2014, permits only a limited extent of office space, related primarily to purposes such as education, health and private/private offices, under special circumstances, in areas designated for "institutional use".
51. That this "institutional use" classification does not, under any circumstances, permit the construction of large scale office space, such as the Commercial Construction, or allow for wide spread and large scale Gulberg Commercialization to take place and neither can the same cannot be justified under the garb of illegal Impugned Notification."
20. Much water has, meanwhile, flowed under the bridge. According to LDA, more than 30% of the redevelopment plan, in pursuance of the reclassification, has been put to implementation. There are hundreds of residents who have been granted planning permission and who have, in turn, converted their land use, modeled their building structures accordingly and may have raised entirely new construction. All of this has come about at a cost and expenditure. This petition will have the unpalatable effect of undoing all of that and the potential of causing damages to hundreds of people not party to this litigation. In my opinion, such matters have to be lent certainty and precision after some time as the planning permissions, redevelopment, reclassification and land use decisions have the effect of causing people to change their position to their detriment and mostly ones which cannot be reversed. O'Keeffe v An Bord Pleanala (1993) 1 I.R 30 is a watershed case from the Irish jurisdiction on these matters and the criteria emerging from that case is aptly applicable to this case too: It was stated by Finlay CJ thus: "(v) Under the provisions of Planning Acts, the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the Planning Authorities and An Bord Pleanala which are expected to have special skill, competence and experience in planning questions. The Court is not vested with that jurisdiction, nor it is expected to, nor can it, exercise discretion with regard to planning matters.
(vi) In order for an applicant for Judicial Review to satisfy a Court that the decision making authority has acted irrationally so that the Court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which would support its decision.
(vii) The onus of establishing all that material is on the applicant for Judicial Review, and if he fails in that onus, he must fail in his claim."
'
When the attention of the learned counsel for the petitioners was called to the aspect, he retorted by relying on the off-quoted maxim, "let justice be done, though the heavens should fall". It does not have a respectable origin and was first used to excuse the most outrageous injustice. The story which forms its origin should serve as an answer to this argument of the learned counsel. The story has been reproduced by Lord Denning in his book 'The Family Story", at p.172. It is in the following words (the story as told by Seneca): "Piso sentenced a soldier to death for the murder of one Gaius. Ile ordered a centurion to execute the sentence. When the soldier was about to be executed. Gains came forward himself alive and well. The centurion reported it to Piso. Piso sentenced all these to death. The soldier because he had already been sentenced, the centurion, for disobeying the order, and Gains, for being the cause of the death of two innocent men. Piso excused it by the plea: let justice be done, though the heavens should fall".
21. In the peculiar facts and circumstances of the case, therefore, I hold that this petition is barred by aches and a challenge on this account must fail too. The impugned notification is not overturnable on this basis.
22. In so arriving at this decision, I have taken into account the context of invalidity, too. Lord Woolfe Mr. In Rv immigration Appeal Tribunal Exp. Jeyeanthan [2000] 1 WLR 354, in this regard, considered whether there had been substantial compliance with the requirements, whether non-compliance was capable of being waived, and the practical consequences of non-compliance. In the instant case, there seems to be substantial compliance with procedural formalities of rules 36-41 of the Rules 2009.
23. Also, I am here, also concerned with what has been called a 'domino effect'. It is described thus in De Smith's Judicial. Review (seventh edition):- "When official action or delegated legislation is held to be unlawful, and if the effect of that holding is that the matter is void ab initio then there may be what has been called a "domino effect" on a number of othr decisions which were made on the assumption that the first act or decision was lawful. For example, where byclaws have been successfully challenged as unlawful. Arc all person who were previously convicted on the basis of" those byelaws entitled to damages against the police for false arrest?"
24. Hundred of persons in the Gulberg Scheme have altered their position post reclassification, to their detriment, or to their benefit. Much work has been accomplished to give effect to the reclassification. This Court, therefore, cannot stand aloof to these ground realities and must give them due consideration. Any decision to upset the reclassification or even to attempt to redefine institutional use will have a domino effect of unprecedented proportions; Lord Mansfield (father of English Commercial Law) said:-- "The successful conduct of trade investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations. In all mercantile transactions, the great object should be certainty and therefore, it is of more consequence that a rule should be certain. (Quoted in the Rule of Law -Tom Bingham, p.38)."
APPEAL:
25. Ride 27 of the Rules, 2014, gives the right of appeal to any person aggrieved by an action taken under these rules, within thirty days, before the Government. The issue was not brought up by the parties and so have not dealt with this aspect. However this provision can always be made use of by any person so aggrieved. This right was not available in the Rules, 2009.
A CAVEAT:
26. Upon reclassification, a redevelopment plan is put into motion by the LDA. This is the mandate of the Rules, 2014. An obligation is thus cast upon the Authority (LDA) to take that redevelopment plan to its fruition and without, in any way, deviating from it. Further the Authority, as an overarching regulatory body is further obligated to keep a constant vigil in respect of the conversion of all land uses in the area. In respect of the disputed property, as in all similar cases, the Authority must ensure the compliance of the conditions of permission granted.
' In view of what has been adumbrated, this petition being devoid of any force is dismissed.