' MUNIR A. SHEIKH, J.--This Intra-Court Appeal is directed against the judgment dated 28-5-1995 through which the Constitutional petition filed by appellants challenging the legality of order dated 21-8-1994 passed by respondents Nos.1 and 2 allowing the request of respondent No,3 for commercialization of her property No,3/E-II situated on Stadium Road, Gulberg-III, Lahore in relaxation of relevant regulations as regards obtaining of "No-Objection Certificate" from the owners of the properties in the neighbourhood has been dismissed by the learned Single Judge.
2. The appellants who are real brother and sisters are owners of property No,2-A/E-II, Stadium Road Gulberg-III, Lahore, whereas, respondent No,3 is the owner of adjacent bungalow No,3/E-II, Stadium Road, Gulberg-III, Lahore. The area of bungalow owned by the appellants as stated by their learned counsel is 10 Kanals 10 Marlas 150 sq. Ft. Whereas that of respondent No,3, 10 Kanals 13 Marlas 75 sq.
Ft. Both the plots are in the residential scheme originally prepared by the Lahore Improvement Trust at the relevant time under the Town Improvement Act, 1923. It was also not disputed by learned counsel for the appellants that both the parties purchased these properties somewhere 22 years ago and the location of both the properties has been correctly shown in the site-plan attached with the writ petition as Annex. 'B'.
3. In the year 1981 respondent No,3 made an application for commercialization of her property to L.D.A. Which was allowed but this could not be given effect to as she could not deposit the fee with the LDA. In the year 1984 new regulations were promulgated under which it was provided that commercialization of residential plots abutting Gulberg Road, Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town and other areas should not be allowed without the prior approval of the Director-General, LDA which may be granted by him only on production of 'No-Objection Certificate' from the owners of adjoining properties and on payment of such fees, as may be prescribed by it from time to time. The Director-General LDA was, however, empowered to allow commercialization without production of such 'No-Objection Certificate' in realization of the said Regulation. Respondent No,3 again sought commercialization of her property on which the appellants approached L.D.A. Through letter dated 28-11-1984 that the commercialization of property of respondent No,3 should not be allowed which was allegedly responded by a reply dated 8-12-1984 stating that the request of respondent No,3 for commercialization of her property shall not be considered unless it was accompanied by 'No- Objection Certificate' from the owners of properties in the immediate neighbourhood.
4. There is no dispute that the property of the appellants being adjacent to the property of respondent No,3 is in latter's immediate neighbourhood: The appellants coming to know that respondent No,3 was making efforts to get permission for commercialization of her property again approached the L.D.A. Through representation made on 3-8-1994. However, from a news item published in the daily Urdu 'Pakistan' subsequently on 30-8-1994 that commercialization of property of respondent No,3 had been allowed they challenged the said decision of L.D.A. And filed Writ Petition No,10326 of 1994 which has been dismissed through judgment dated 28-51995 by the learned Single Judge by holding that the decision of L.D.A. Did not suffer from any illegality and it was in accordance with the relevant rules and regulations.
5. Learned counsel 'for the appellants in support of this appeal raised the following contentions:--
(a) that the order of the L.D.A. Allowing commercialization of property of respondent No,3 was violative of the undertaking given earlier in response to the appellants' representation to the effect that the request for commercialization shall not be considered unless it was accompanied by a 'No-Objection Certificate' of the owners of the properties in the immediate neighbourhood;
(b) that the order for commercialization was passed without hearing the appellants;
(c) that the order was also violative of the preamble of the Lahore Development Authority Act, 1975 and the other provisions of the Act such as sections 13, 14, 20, 21 and 38 thereof;
(d) that the conversion of residential property to commercial use will have the effect of interference with the privacy of the appellants, the enjoyment of their easement right and put them in inconvenience as it would also disturb their peaceful living and proper use of their residential property;
(e) that obtaining of 'No-Objection Certificate' from the owners of the neighbourhood was absolute rule, as such, the L.D.A. Was left with no authority to allow commercialization without such 'No- Objection Certificate';
(f) that the power to relax regulation as regards production of 'No-Objection Certificate' was vested with the Director-General which in this case has not been exercised by him.
6. The main burden of argument presented by learned counsel for petitioners in support of this appeal was that no power was vested in the L.D.A. Under Building Regulations, 1984 framed under section 45 of the Lahore Development Authority Act, 1975, to grant permission to respondent No,3 for commercialization of her property unless 'No-Objection Certificates' had been obtained from the owners of the properties in the neighbourhood one of whom were the appellants, therefore, the decision of L.D.A. Impugned in the Constitutional petition was wholly void being violative of the said Regulations. Reliance was placed in support of this contention on Regulation No,96 of the Building Regulations, 1984. Since the success or otherwise of this contention centers around the interpretation and construction of the said Regulation, therefore, it is necessary to discuss the true import of the provisions of the said Regulation. The said Regulation declares the following areas to conform to the additional special control specified for each:-- 1.
2.
3.
4. Gulberg Road Main Boulevard in Gulberg, New Garden Town, New Muslim Town and Allama Iqbal Town and other areas subjected to conversion of use."
' Regulation No,96(4) provides that the properties abutting on Gulberg Road Main Boulevard in Gulberg and elsewhere may be subjected to change of use from "Residential" to "Special Commercial" subject to prior approval of the Director-General L.D.A. Which may be granted by him only on production of 'No-Objection Certificate' from the owners of adjoining properties and on payment of such fees as may be prescribed by it from time to time. The emphasis of learned counsel for petitioners was on the use of the expression "only" on production of 'No-Objection Certificate' from the owners of adjoining properties which expression according to him gives absolute right to the owners of such properties to give or not such a 'No-Objection Certificate' without which L.D.A. Was not vested with the power to grant permission for commercialization of any property abutting on these roads. He argued that the property of respondent No,3 for commercialization of which permission was granted abuts on Main Boulevard in Gulberg. Since the situation of property of respondent No,3 has material bearing upon the merits of this argument, therefore, it has to be determined whether the property of respondent No,3 abuts on Main Boulevard Road in Gulberg. Learned counsel for respondent No,3 has called our attention to paragraph 3 of the Constitutional petition to maintain that the appellants themselves admitted that the properties owned by both the parties abut on Stadium Road, Lahore. His contention was that in order to resolve a factual controversy of such a nature there cannot be better evidence than the admission of a party made in the pleadings of the same proceedings in which such a party wanted to raise a contrary plea. Paragraph 3 of the writ petition is reproduced in extenso in order to appreciate the argument:-- "That Scheme Gulberg-III, Lahore was framed and executed by the defunct Lahore Improvement Trust predecessor-in-interest of respondent No,1 in early fifties. The aforesaid Plot No,2-A/E-2 Gulberg-III Lahore belonging to the petitioners and the plot No,3/E2, Gulberg III, Lahore belonging to the respondent No,3 abut on Stadium Road, Lahore."
7. It is evident from this paragraph that it was not the case of the appellants in the writ petition that properties of respondent No,3 and the appellants were abutting on Main Boulevard in Gulberg whereas it was specifically pleaded that they were abutting on Stadium Road, Lahore, Learned counsel for appellants when questioned as to whether' there is any site plan available on the record, submitted that the site-plan appended by the appellants with the Constitutional petition as Annexure-B depicts correctly the position as regards situation of both the properties. We have examined the said document from which it is clearly made out that properties of both the parties are abutting on Stadium Road, Lahore and not Main Boulevard, Gulberg as on the back of these two properties there are other properties which are facing Main Boulevard Gulberg. Learned counsel for appellants when questioned as to how in the absence of any plea raised in the Constitutional petition that property of respondent No,3 was abutting on Main Boulevard in Gulberg or any other road to which Regulation No,96(4) as regards 'No-Objection Certificate' from the owners of adjoining properties could be invoked, submitted that on one side of the property of respondent No,3 there is green lawn/belt which abuts the Main Boulevard in Gulberg. Respondent No,3 has been permitted to open an entrance for her house from the said green lawn, therefore, her property shall be deemed to be abutting on Main Boulevard in Gulberg to attract the provisions of the said Regulation in relation to production of 'No-Objection Certificate' from the, owners of adjoining properties before the grant of permission for commercialization.
8. We are afraid the argument in our considered view is plainly unsound. For the purpose of determining the applicability of Regulation No,96(4) as to situation of the property for the purpose of commercialization and production of 'No-Objection Certificate' primarily reliance has to be made on the original scheme of which a particular property is a part as residential plot. According to the appellants themselves Annexure-B site-plan depicts correctly position of the residential plots of both the parties in the original scheme which clearly furnishes strong evidence according to sanctioned scheme both the properties are abutting Stadium Road. The appellants' admission in paragraph 3. Of the writ petition that both the properties are abutting Stadium Road, corroborates this fact which admission can be used as evidence against them and they cannot be allowed to turn around and raise inconsistent contradictory plea in the argument. Merely because as a matter of concession on one side of the property of respondent No,3 she has been allowed to open an entrance from the green plot of L.D.A. Which may be by the side of Main Boulevard Gulberg it cannot be argued that property of respondent No,3 should be deemed to be abutting on the said road in order to attract the provision of Regulation No,96(4) regarding production of 'No-Objection Certificate' of the owners of adjoining properties before commercialization was permitted as we have held that for determining this fact the original position of the plot in the scheme is to be made the basis.
9. Faced with this difficulty learned counsel for appellants in his endeavour to overcome it submitted that on behalf of L.D.A. In response to a query made by the appellants when they approached it earlier to express concern over the matter of grant of permission for commercialization of property of respondent No,3 it was expressly stated in the reply addressed to the appellants that request of respondent No,3 for commercialization of her property shall not be considered without 'No-Objection Certificate' from the owners of properties in the neighbourhood, therefore, it constituted an admission on its part that the Regulation requiring production of such a certificate was mandatory in this case which impliedly was also an admission that her property was treated to be a property abutting Main Boulevard Road Gulberg.
10. The argument as raised no doubt appears to be ingenious but not tenable on close scrutiny of law and the provisions of the relevant Regulation. Learned counsel for petitioners by raising this plea in fact wants to advance the applicability of rule of estoppel against L.D.A. It is firmly settled law that there can be no estoppel against statute. In a given case if admission is made by a public functionary or department which is found to be not in accordance with the relevant law as such was erroneous, the same could not operate as estoppel and cannot be allowed to be acted. We have also observed above that the properties of both the parties are not abutting Main Boulevard Gulberg, therefore, if any of the functionaries of the L.D.A. Intimated the appellants that production of N.O.C. In respect of commercialization of such properties was necessary on the erroneous assumption as if the relevant Regulations were applicable to such properties it cannot any body and no argument can be raised in judicial proceedings to destroy right of any party or to claim any right based on that where none existed.
11. The correctness of the legal position that in any case it was the Director-General who was the competent authority to decide the matter relating to commercialization, and as to requirement of production of N.O.C. Or otherwise being a matter connected for taking decision whether commercialization of a particular property should be allowed or not, any admission in this behalf erroneously made by any other officer of the L.D.A. Who exchanged correspondence with the appellants without the approval of the Director-General would not amount to a finding or an admission binding on the Director-General and the L.D.A. Learned counsel for appellants has not been able to show that the officer who took stand in the letters addressed to the appellants that request for commercialization of property shall not be considered unless accompanied by a N.O.C.
Erroneously assuming that such a certificate was necessary was made after the approval of the Director-General, therefore, argument of learned counsel for respondent No,3 that some lower officer in the L.D.A. Made erroneous admission on a particular fact which was required to be determined by the Director-General in order to favour the appellants behind the back of respondent No,3 appears to have some force.
12. The question whether production of N.O.C. Of the owners of properties in the neigbourhood is an absolute rule or not pales into insignificance for the matter has not been left by the relevant provisions of the Regulations at the whim of owners of adjoining properties in the neighbourhood as the Director-General has been conferred power to relax the said rule even if it was applicable in a given case regarding production of N.O.C. This power was conferred obviously to avoid a situation where any of the owners of adjoining properties might without any justification or reason use the provision of production of N.O.C. To blackmail the owner of the property who wanted to commercialize it. As has been observed, earlier also the commercialization of the property by the L.D.A. Was allowed but respondent No,3 could not avail of the said facility as she could not deposit the fee. It no doubt establishes that as a matter of principle L.D.A. Had earlier no objection to commercialization of property of respondent No,3 therefore, in our view it was therefore in furtherance of the same that commercialization has been allowed for which respondent No,3 has already suffered as she had to pay a huge amount which she has paid for availing of this permission.
13. Learned counsel for appellants submitted that relaxation of the relevant provisions of the Regulation in respect of production of N.O.C. Was made in consideration of services of respondent No,3 during 1965 War without spelling out the details and the nature of her services, as such, permission should be struck down.
14. This argument has not impressed us. The services of respondent No,3 during 1965 War were too well-known to be spelt out, notice of which could be taken by the concerned authority.
15. We have also viewed the question of bringing of one's property .To a different use from the point of view of fundamental rights given to every citizen under the Constitution of the Islamic Republic of Pakistan, 1973 of holding property under Articles 23 and 24 thereof. Article 23 provides that every citizen has a right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 provides protection to the owner of property against its compulsorily deprivation except in accordance with law.
16. The right to acquire, hold and dispose of property as enjoined by Article 23 would also impliedly include right to enjoy and user of the same in any manner provided it is not violative of any reasonable restriction imposed by law in the public interest. It can safely be held that right of an owner of immovable property also includes his right to use it in a manner which he thinks was suitable and beneficial to him is a general rule and imposition of reasonable restrictions by law in the public interest is an exception. Therefore, while deciding the question of relaxation of the Regulation requiring production of N.O.C. Of the owners of adjoining properties was to be exercised liberally so that no owner who wanted to commercialize his property should be deprived of enjoyment of his property and to derive maximum benefits financial and other of course without infringing rights of the owners of other adjoining properties. Unless it was shown that commercialization property of respondent No,3 was calculated to cause any injury to the adjoining properties or that it would either cause infringement of their rights recognized by law it as a matter of general rule could not be declined as the relevant authorities exercising such power under the Statute or rules are required to act with due care and caution keeping in view the rights of the owners of properties as to their use and enjoyment, justly, properly and equitably.
17. Learned counsel for appellant submitted that erection of a commercial building over the plot of respondent No,3 would interfere in the privacy of the appellants as they will not be in a position with the same convenience sit in open and it will also infringe their easement right and would also cause inconvenience to them as in consequence of commercialization there is likelihood of parking of vehicles in the vicinity, by the customers visiting the shops, therefore, the commercialization was not only likely to interference in their abovementioned rights of easement but also to cause nuisance. Taking his argument further learned counsel for appellant submitted that on account of above reasons the permission for commercialization of respondent No,3' s property was violative of the principles embodied in the preamble of Lahore Development Authority Act, 1975 and the other provisions such as sections 13, 14, 20, 21 and 38. In support of his argument learned counsel placed reliance on following reported judgments: Ahmed Javed Shah v. Lahore Development Authority (1996 CLC 748), Akhtar Hamid Ghori and 4 others v. M/s. Saima Estate Developers and another (1996 CLC 2173) and Ardeshir Cowasjee, Karachi and 4 others v. M/s. Multilne Associates, Karachi and 2 others (PLD 1993 Karachi 237)
18. We have undertaken detailed scru tiny of the writ petition and Memo. Of this appeal and find that no case of such inconvenience or infringement of easement rights and parking of vehicles as argued specifically was urged or made out. Respondent No,3 had been permitted to commercialize her property subject to a number of conditions which constitutes effective check against its misuse. The said conditions are as follows:--
(1) Prescribed setback of 30 feet will be provided at the front of the plot.
(2) That the coverage to exceeding 50% of the plot area shall be allowed on each floor.
(3) That only a three-storeyed building having maximum height of 38-feet above plinth level with a plot floor area ratio of 1:1.8 shall be allowed on the plot.
(4) That the building shall be constructed in accordance with the Building Regulations, 1984 and after getting the plan approved from the Competent Authority.
(5) That the entry and exit shall be provided only from the Stadium Road.
(6) That the doors and windows at the upper floors shall be arranged in such a way that privacy of the neighbour is safeguarded.
(7) That no encroachment out of the boundary of the property shall be allowed to be made on the right of way.
(8) That the green belt provided between the property under-consideration and the roundabout will not be disturbed and no access will be allowed through this green belt.
(9) That the basement shall be constructed after leaving the mandatory open spaces.
(10) Since the plot with its total area of 10 Kanals, 13 Marlas and 75 Sq. Ft. Is being allowed to be commercialized, its sub-division earlier allowed vide this Office Letter No,TPG-2127/285 dated 12-1- 1988 and No,TPG-2127/707 dated 8-5-1988 respectively stand cancelled and withdrawn.
(11) That the construction of building shall be started after getting the design of drainage approved from WASA.
(12) Parking space will be provided in accordance with the Building Regulations, 1984."
' These conditions if considered as a whole is complete answer to the apprehensions expressed by the learned counsel during arguments on behalf of the appellants as regards inconvenience, infringement of easement rights and privacy of the appellants as it clearly provides that doors and windows at the upper floors of commercialized building shall be arranged in such a way that privacy of the neighbours is safeguarded. In order to secure that no parking of vehicles is made in the area on the roads it was provided that no encroachment out of the boundary of the commercialized property shall be allowed to be made on the right of way. It further elaborates that green belt provided between the commercialized property and the roundabout will not be disturbed and no access will be allowed through the said green belt and basement was to be constructed after leaving the mandatory open spaces. Set back of 30-feet was also required to be provided at the front of the plot and the coverage was not to exceed 50% of the plot on each floor and in order to keep the property to a minimum height it was provided that only three-storeyed building could be constructed of which maximum height will not exceed 38 feet above plinth level.
19. Learned counsel for appellants when asked as to how and in what manner if commercialization is made subject to these conditions it could be argued that the permission thereof was either violative of any of the provisions of the L.D.A. Act, 1975 or was calculated to cause any inconvenience, nuisance or infringement of easement right if any of the appellants, was not able to satisfy us and we are fully convinced that the appellants were labouring under unfounded misgiving and apprehensions that commercialization of property of respondent No,3 would cause them inconvenience.
20. Even if there was likelihood of any person having opportunity of overlooking the property of the other from the window of the upper storey of his property the same was not considered to be a sufficient ground to hold that there was interference in the enjoyment of the property by the said other owner or it would amount to interference in his privacy or easement right, for, if on such grounds an owner of property is deprived of his right of enjoyment and user of the same no one would be in a position to use and enjoy his property. This view finds support from the following reported judgments referred to by learned counsel for respondent No,3: Haji Fazal-i-Raziq v. Syed Zaman Shah and others PLD 1980 SC 193, Sayed A. Sheikh, Advocate v. Siddiq and another 1990 CLC page 628 and Moosa Bhunji v. Hashwani Sales and Services Ltd. And another PLD 1982 Karachi 940.
In some of the reported judgments on which reliance was made by learned counsel for the appellants the disputed building permitted to be constructed was of 9-storey and each of other cases proceeded upon its own peculiar facts and circumstances, therefore, the principle laid down in each of them when considered in the light of facts of this case are found to be not attracted.
21. It was argued that the power under the Regulation to relax the condition of production of N.O.C.
Was vested in the Director-General, L.D.A. Who in this case did not exercise the said power. We find that the request for permission to commercialize her property made by respondent No,3 was processed in the office and the case was placed before the Chief Minister who ex officio was also the Chairman of L.D.A. After considering all the aspects of the case he recommended the case and it was placed before the Director-General who accorded the permission.
22. Learned counsel for petitioners submitted that the Director-General shall be deemed to have acted on the direction of the Chief Minister and not of his own as such the discretion vested in him was not exercised by him independently, as such, the order is bad. The argument is not convincing.
The Chief Minister ex officio being the Chairman of L.D.A., and if the matter was brought to his notice which is a matter concerning the internal administration of L.D.A. Therefore, in our view such a procedure was good as it served as a check over the arbitrary exercise of power by the D.G. The matter was scrutinized in the L.D.A. By the two highest public functionaries, therefore, in our view no objection could be raised, for the permission for commercialization has been given by the Director- General and no exception can be taken to the same merely because the Chief Minister/Chairman had also examined the case. It may prominently be mentioned here that the Director-General did not before the learned Single Judge took plea that he was not allowed to exercise the power as he wanted. It was a matter between the Chairman of L.D.A. And him i,e, D.G., therefore, no exception can be taken to the procedure adopted by the L.D.A. Which was their internal administrative affair and legal efficacy of the order passed by the Director-General is not in any manner adversely effected by such considerations.
23. Learned counsel for appellants lastly argued that if the services of respondent during 1965 War were to be given consideration for permitting her to commercialize her property the appellants had also in their pleadings before the learned Single Judge spelt out services rendered by them in medical field which should also have been given consideration. The appellants are certainly entitled to get a similar treatment as regards permission for commercialization of their properties as and when they would intend to do so and approach the L.D.A. But they could not by virtue of their such services plead that respondent No,3 should be deprived of the right to bring her property to a use permitted by law which she thought was the best use for her.
24. We may before parting with the judgment observe here that each of the properties of the parties has an area of more than 10 Kanals. The authorities while making residential plots of such huge area in the residential schemes about more than 30 years ago had in their consideration the situation prevailing at that time. With the passage of more than 30 years the circumstances have undergone a considerable change. The population has increased and the city of Lahore has expanded. Any person who purchased plot of more than 10 Kanals of area 30 years ago must have legitimately believed and thought to bring the property at proper time with the passage of time in his old-age to a better use when he would not be physically capable of doing any job for earning his livelihood. The use of property so as to derive income therefrom to meet his financial requirements and such other requirements of his family to meet their growing needs is owner's right. Owner of such a huge property could not be expected and compelled to maintain the same as such and declined right to derive income therefrom in old age. The permission granted for commercialization in this case would enable respondent No,3 to derive maximum financial benefits of which no owner could be deprived being his right to enjoy the same subject to reasonable restrictions imposed by law.
25. After considering the arguments of learned counsel for the appellants and the relevant law we find that the permission granted by the L.D.A. For commercialization of her property to respondent No,3 did not suffer from any legal infirmity or jurisdictional defect. Learned Single Judge has rightly observed that in case respondent No,3 while constructing commercial building in pursuance of the permission is guilty of violating the conditions subject to which permission was granted the appellants shall have right to object to the same and bring it to the notice of L.D.A. Which is vested with the power to get them complied with.
26. For the foregoing reasons the appeal has no merits which is accordingly dismissed with no order as to costs.