MALIK MUHAMMAD QAYYUM. J.- This judgment shall dispose of W.P. Nos. 12200. 5073, 4776, 4777, 4775, 4652 of 1997. 11002, 11005, 11004, 11006. 11003 and 11001 of 1996 in all which only question which falls for determination is as to whether it is Lahore Development Authority established under the Lahore Development Authority Act, 1975 or the Lahore Metropolitan Corporation, in urban local council constituted under the Punjab Local Government Ordinance, 1979 which has a right to rent or lose out sites/poles for allocation of neon signs or advertisement boards.
2. In W.P. No. 4211/1997. Lahore Development Authority Traffic Engineering & Transport Planning Agency is petitioner No. I while three other petitioner claim to ave entered into agreements with Lahore Development Authority whereby they have been leased out the right to display neon signs on the poles along side the roads mentioned in para 5 of the petition.
3. In support of this petition, the Learned counsel for the petitioners has relied upon section 18 of the Lahore Development Authority Act, 1975 and the notification dated 17-7-1995 whereby certain roads including The Mall Road, Aiwan-i-Tajarat Road and Lawrence Road were declared as "controlled area". Learned counsel has also referred to Regulation 65 of the Lahore Development Authority Building Regulations. 1984 framed by Lahore Development Authority Act, 1975 according to which neon signs and advertisements can be displayed at suitable places subject to the approval of the Authority and payment of necessary fee for each sign/advertisement board.
4. On behalf of Metropolitan Corporation and respondent No. 3 which claims through it, it has been argued by Raja Zulqumain. Advocate that it is the Corporation which has the power to perform municipal functions in the metropolis of Lahore under the Punjab Local Government Ordinance, 1979 w wich includes maintenance of streets and road lights an as such it is respondent No. 1 which has the exclusive authority to rent or lease out poles or places for display of neon signs arid other advertisements. He has also referred to section 137 of the Punjab Local Government Ordinance.
1979. Entries 18 and 25 of Part III of Second Schedule to the Act which authorises an urban local council to levy fee on advertisements. Learned counsel pointed out that so far as Lahore Development Authority was concerned, in the absence of any notification of the Provincial Government under section 19 of the Lahore Development Authority Act, 1975, the municipal functions cannot be performed by the authority but continue to remain with the Metropolitan Corporation Lahore. Learned counsel further says that Metropolitan Corporation Lahore was paying 75% of the revenue collected by it from house tax to the Lahore Development Authority' for the purposes of maintenance of roads.
5. Raja Abdur Rehman, Learned counsel for respondent No. 2 has argued that the matter is sub judice before the Civil Court in the form of a civil suit filed by respondent No. 2 in which status quo has been ordered to be maintained. According to the Learned counsel, petitioners No. 2 to 4 have sought enforcement of contractual rights in the exercise of Constitutional jurisdiction which cannot be permitted. The other point urged by the Learned counsel was that petitioners No. 2 to 4 have failed to perform their pan of the contract and their obligations towards the petitioner No. 1.
6. So far as the legal objections raised by the Learned counsel for respondent No. Concerned, those are totally without any force. Petitioner No. Is an authority established by a statute and does not seek to enforce any contract as against the respondents, it is true that petitioners No. 2 to 4 derive their right under agreements from the petitioner No. 1 but again the remedy which they seek is not against petitioner No. 1 but against respondent No. 1 which according to them has no authority to interfere in their business. The pendency, in the circumstances, of a civil suit is not a bar to the maintainability of this petition inasmuch as the dispute in this petition is essentially between Lahore Development Authority and Metropolitan Corporation Lahore and calls for interpretation of the relevant provision of Lahore Development Authority Act, 1975 and Punjab Local Government Ordinance, 1979. If any authority is needed, reference may be made to Abdullah Muhammad Peer Mohamed v. Karachi Municipal Corporation & 3 others (PLD 1971 SC 130) and Malik Meraj Khalid v.
The Islamic Republic of Pakistan through its President through MEO (PLD 1988 Lahore 325 ).
7. Having disposed of preliminary matters, the main controversy between the parties may be advened to. As already observed, the core of the dispute is whether it is the Lahore Development Authority or the Metropolitan Corporation Lahore which has the power to lease out the rights to display neon signs/advertisements on the poles fixed along roads which have been declared as controlled area under section 18 of the Lahore Development Author in Act. 1975.
8. The first thing which is to be noted is that it is admitted on all hands that those poles on which neon signs/advertisements have been fixed belong to Lahore Development Authority or Traffic Engineering & Planning Agency which is a instrumentality of the Lahore Development Authority created vide notification dated 8-12-1987 issued by Lahore Development Authority under section 6
(3) (xii).
9. So far as the legal position is concerned, section 18 of the Lahore Development Authority Act, 1975 on which the petitioner No. 1 relies reads as under:- "The Authority may. By notification in the official Gazette, declare any locality within the Area to be controlled area, for the purposes of this Act and may issue in respect of such locality such directions as it considers fit and appropriate and do all such things as may be necessary for the prevention of haphazard growth, encroachments, and unauthorised construction in such area."
It is common ground between the panics that in terms of the aforesaid section a notification bearing No. Election-3/95-1746 was issued by the Lahore Development Authority on 22-6-1995 which was gazetted on 6-9-1995 whereby cenain roads in Lahore including the ones dispute had been declared as falling within the controlled area. One of the consequences which flow from that declaration of any locality as controlled area is that Lahore Development Authority becomes empowered to issue such directions as it may considered fit and appropriate and do all such things as may be necessary for the prevention of haphazard growth, encroachments and unauthorised construction in that area.
10. Section 45 of the Lahore Development Authority Act, 1975 empowers the authority to frame regulations for carrying out the purposes of this Act in the exercise of which the authority has framed Lahore Development Authority Building Regulations, 1984, regulation 65 of which reads as under:- "Advertisements.-Display of neon signs/advertisements. Etc. Shall be permissible at suitable places subject to the approval of the authority: The Authority shall charge necessary fee for each sign/advertisement board at the rate and in a manner as fixed from the to time".
This regulation clearly permits Lahore Development Authority to regulate the display and fixation of neon signs and other advertisements in the controlled area subject to payment of such fee as the Authority may fix from the to the, in view of this regulation it is difficult to sustain the challenge of respondent No. 1 to the right of Lahore Development Authority to permit the display of neon signs and other advertisements in the controlled area particularly on the poles which belong to respondent No. 1.
11. Learned counsel for Metropolitan Corporation Lahore has claimed that the charges for consumption of electricity in connection with neon signs are borne by Metropolitan Corporation.
Learned counsel for the petitioners has however disputed this fact and stated that the power to several neon sign is supplied through separate meters and charges are directly paid to WAPDA.
12. Learned counsel appearing for respondent No. 1 has attempted to challenge the vires of regulation 65 by arguing that it, travels beyond section 18 of the Lahore Development Authority Act.
1975. It was elaborated that after the declaration of a locality as controlled area, the only pow er w wich the Authority can exercise is to take such steps as may be necessary for the prevention of haphazard growth, encroachments and unauthorised construction in the area. That may be so, but having heard the Learned counsel for the parties, I am of the view that the words "haphazard growth. Encroachments and unauthorized construction" are wide enough to cover the display and taxation of hoarding, neon sings and other advertisements alongwith road.
13. Mr. Azmat Saeed, Learned legal Advisor of Lahore Development Authority, has relied upon Sardar Muhammad and 4 others v. Municipal Committed Jhelum City through Chairman Municipal Committee-Jhelum (PLD 1970 SC 497) to show that anything done on public street amounts to encroachment, it may also be stated that the regulation of advertisements, hoardings and boards is also necessary in order to check haphazard growth and that power cannot be denied to Lahore Development Authority in view of the w ide language employed in section 18 of the Lahore Development Authority Act. 1975.
14. As regards the arguments of the Learned Legal Adviser of Metropolitan Corporation Lahore that in the absence of any notification issued by the Provincial Government Lahore Development Authorities not competent to perform any functions of the municipal committee. I am not call upon to make any comments inasmuch as it is not being claimed by Lahore Development Authority that the power to allow fixation of hoardings vests in them by virtue of section 19. On the other hand, as already stated, that power flows from section 18 of the Lahore Development Authority Act, 1975.
Consequently, non-issuance of notification by the Provincial Government under section 19 is of no material consequence.
15. Again there may not be dispute that Metropolitan Corporation Lahore has the power to levy tax on advertisement in terms of Second Schedule read with Section 137 of the Punjab Local Government Ordinance, 1979 but he Learned Legal Advisor of Metropolitan Corporation Lahore is not in a position to show that any tax has indeed been levied by Metropolitan Corporation. On the other hand, what appears is that Metropolitan Corporation Lahore, instead of levying tax on the hoardings and advertisements, as the case may be, has resorted to recovering rent charges by entering into agreements with private individuals by renting out to them spaces for fixation or display of neon sings which, as already observed, falls within the exclusive domain of Lahore Development Authority so far as the controlled area is concerned.
16. In view of what has been stated above, this petition (W.P. No. 4211/97) is allowed and action of respondent No. 1 in interfering with licensing or leasing out sites/poles for display of neon signs and hoardings on the roads declared as controlled area under section 18 of the Lahore Development Authority Act, 1975 is declared to be without lawful .Authority and of no legal effect. The remaining petitions mentioned in para 1 of this judgment are dismissed with no order as to costs.