Shahid Jamil Khan, J. Through this petition, order dated 24.05.2010 passed by Secretary , LG&CD Department is assailed, whereby petitioner 's request for not charging commercialization fee has been declined. Operative part of the order is reproduced hereunder:- "5. After hearing the parties at length and from the perusal of the record, it is concluded that the request of CAA is not covered under policy letter of the Government dated 14.7.2005 as the said land falls in the jurisdiction of TMA and TMA is providing municipal services therein. Moreover , the property was commercialized on the request of the lessee during the year , 2004 and he paid all the dues accordingly . Appeal is hereby dismissed."
2. Learned counsel for the petitioner submits that land owned by Civil Aviation Authority is a federal subject, therefore, is not amenable to the powers and jurisdiction of Tehsil Municipal Administration (as it then was). For this submission, he has placed reliance on judgment in Sindh Revenue Board through Chairman Government of Sindh and another v The Civil Aviation Authority of Pakistan through Airport Manager ( 2017 SCMR 1344 ).
On facts, the learned counsel submits that due to construction of a public road the old airport was split in two portions and on the edge of one portion the land owned by Civil Aviation Authority was leased out for CNG Station.
An application for commercialization was moved by lessee of the petitioner , where upon commercialization fee was fixed and charged from the lessee in the year 2004. The petitioner moved an application in the year 2010 requesting for waiving of and refund the commercialization fee on the legal ground, ibid, which was declined through the impugned order . He explaine d that land in question is part of 'Aerodrome' and 'Airport' as defined in Section 2(i)&(ii) of Pakistan Civil Aviation Authority Ordinance, 1982 ("Ordinance of 1982") and falls under Entry No.22 of Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). Referring to the judgment, supra, learned counsel argued that subject under the Entry 22 can only be regulated by Federal Law and not by or under Provincial Laws, as has been held in the judgment. Concludes that in this case Commercialization Rules, 2004 have been made applicable on the land which is part of the Aerodrome and Airport etc. Without prejudice to the earlier submissions, learned counsel submits that the Commercialization Rules do not apply on the land in question also because the land is already commercial in nature. Explains that all the commercial outlets within the airport premises are already commercial, charges for which are received and are regulated by Civil Aviation Authority . Also submits that due process of commercialization under the Commercialization Rules 2004 were not followed.
On a specific question, whether all these arguments are part of application, which has been decided through the impugned order , the answer of learned counsel is in negative, therefore, the argument of not following due process under the Rules cannot be entertained at this stage. Learned counsel is also specifically asked whether the CNG Station on petitioner 's land is being used for the purpose of Aerodrome or Airport , he replied in negation and admitted that purpose of the CNG Station, on the land in question, is for general public.
3. Learned counsel for the respondent/TM A has supported the reason given in the impugned order . He could not reply to the question whether land in question falls within the approved plan of that area, however , has read ground
(d) of the writ petition wherein petitioner has himself written that the land administered under the Ordinance of 1982 for Aerodrome and Airport , etc. cannot be allowed for general public.
4. Heard. Record perused.
5. The definition of Aerodrome and Airport as defined in Section 2(i)&(ii) of the Ordinance of 1982 alongwith Entry 22 of the Constitution is reproduced hereunder:- "2. Definitions.- In this Ordinance, unless there is anything repugnant in the subject or context,-
(i) "aerodrome" means any area of land or water designed, equipped, set apart or commonly used or intended to be used, either wholly or in part, for affording facilities for the landing and departure of aircraft, and includes all buildings, sheds, vessels and other structures and roads thereon or appertaining thereto;
(ii) "airport" means an aerodrome at which facilities have , in the opinion of the Federal Government, been sufficiently developed to be of importance to civil aviation ;"
Entry 22 of the Fourth Schedule of the Constitution "22. Aircraft and air navigation ; the provision of aerodromes ; regulation and organization of air traffic and of aerodromes ."
[emphasis supplied] The definition of aerodrome and airport is conspicuously showing that these are meant for the purpose of Civil Aviation which has been explained in preamble of the Ordinance of 1982, which is reproduced hereunder:- "Whereas it is expedient to establish a Civil Aviation Authority to provide for the promotion and regulation of civil aviation activities and to develop an infrastructure for safe, efficient, adequate, economical and properly coordinated civil air transport service in Pakistan ;"
[emphasis supplied] Entry 22 shows that its subject activities are relating to 'aircraft and air navigation' 'provision for aerodrome and 'regulation and organization of air traffic and aerodrome' . Admittedly , the use of land in question is for none of the above noted purposes.
None of these provisions suggest that any property owned by Civil Aviation Authority situated within the territorial limits of a local or provincial government and in particular when being not used for any of the purposes under the Ordinance of 1982, shall be outside the jurisdiction of Provincial or Local Authority .
6. The argument that land owned by petitioner is already commercial and has to be regulated by it for this purpose also has no force. Any land within the premises of an Airport, used for commercial purpose, may not require commercialization by Provincial or Local laws, because such commercial activity shall be primary for the passengers and other persons related thereto. However , a land outside the Airport premises, within territorial limits of Provincial or Local authority used for commercial activities for general public, would not fall under the Ordinance of 1982 or rules thereunder .
7. The judgment, supra, relied upon by learned counsel for the petitioner is on the subject of taxation when Provincial Sales Tax was being charged upon the activities/services which fell under the Entry 22. The dictum laid down in this judgment is not applicable to the facts of this case. Admittedly , land owned by the petitioner is on the edge of a public road, outside the Airport premises, and is being used to provide commercial service and supply of CNG to general public. The arguments, as advanced, by learned counsel for the petitioner , if accepted, may lead to encroachment upon the Provincial and Local Government' s administrative and executive authority , which has been re-defined and enforced by 18th Amendment in the Constitution.
In simple words, any land owned by an authority like Civil Aviation if not used for the purposes as defined under Ordinance of 1982 shall be subject to the Provincial and Local Government' s administrative and executive authority and laws relating thereto shall be applicable unless any different intention appears in the Constitution or is exempted by the relevant Provincial or Local Government laws.
8. Before concluding, it may be observed that ground/objection that land in question does not fall within the approved plan of TMA, being not satisfactorily answered by the responden ts, may be raised before the respondents. If so raised, it be decided on merits without prejudice to the decision in this case.
The petition is dismissed.