MIAN HAMID FAROOQ, J.--- Seemingly aggrieved from the judgment dated 16.10.1996, passed by learned Single Judge of this Court, in W.P. No. 18723 of 1996, whereby the orders passed by the then Chief Minister dated 5.7.1993, 5.10.1994 and 2.10.1996, were declared to be without jurisdiction, the appellant/respondent, has called in question the said decision by way of filing the present appeal under Section 3 of the Law Reforms Ordinance, 1972.
2. Facts culminating to the filing of the present appeal, as narrated in the writ petition, are that appellant purchased property No. 109-A, Garden Block, New Garden Town, Lahore, while respondent No. 1/writ petitioner is living alongwith his family in the adjoining property bearing No. 109, Garden Block, New Garden Town, Lahore. It has been stated that appellant has converted residential house into a commercial building by opening gymnasium in complete violation of the Rules and Regulations of respondent No. 2. Appellant, reportedly, approached the then Chief Minister and was successful in obtaining order, dated 5.7.1993, in respect of house No. 109-A, whereby the Chief Minister directed that the said building should not be treated as commercial unit as it is a Health Clinic and that it should be treated at par with Doctor's Clinic. Consequent to the above order, Directorate of Town Planning issued letter dated 27.12.1993, through which the Director General, LDA allowed the appellant to use half of the floor area of the said house for running of Bodytalk Health Clinic, while the remaining half was to be used for residential purposes. Pursuant to the complaints received by respondent No. 2 regarding the use of building for commercial purposes and undesirable activities, respondent No. 2 withdrew the afore- noted permission, vide letter dated 30.8.1994, and ordered the appellant to restore the premises for purely residential status or to get the property commercialized after obtaining NOCs from the adjoining neighbours and payment of commercialization fee. It has been averred in the petition that despite the aforesaid order respondent No. 3 was successful in obtaining another permission letter dated 5.10.1994 from the Chief Minister, whereby the previous permission was restored.
Consequent to that LDA issued a letter dated 20.12.1994 to the appellant thereby allowing him to use the property for running health clinic. It is the case of respondent No. 1 that the appellant made unauthorized constructions, inasmuch as a swimming pool/squash courts were constructed and that objectionable activities are being carried out under the garb of a Health Clinic. A civil suit was also filed by respondent No. 1 against the appellant and respondents Nos. 2 and 3 against the alleged construction, which is, statedly, pending. Later on, upon the reconsideration of the entire matter, the Chief Minister ordered, on 16.6.1996, for holding an enquiry in the matter and recalled order dated 20.12.1994. Subsequently the Additional Secretary to the Chief Minister addressed a communication dated 2.10.1996, informing the Director General, LDA that the Chief Minister has recalled his earlier order dated 16.6.1996, resultantly the order for commercial use of bungalow No. 109-A, Garden Block, Garden Town, Lahore, as Health Clinic was reactivated.
3. In the above perspective respondent No. 1 filed a Constitutional petition (W.P. No. 18723 of 1996) in this Court, thereby challenging ' orders dated 5.7.1993, 5.10.1994 and 2.10.1996, as having been passed by respondents Nos. 2 and 3 without any lawful authority and thus without jurisdiction. The learned Single Judge in Chamber allowed the said Constitutional petition vide judgment, announced on 16.5.1997, and declared the afore-noted orders having been passed without jurisdiction and thus, were set aside. Aggrieved by the said decision, the appellant has called in question the said judgment by way of filing the present appeal.
4. Learned counsel for the appellant, while relying on Sh. Ihsanul Haq Piracha Vs. Mr. Wasim Sajjad and others (PLD 1986 SC 200) and Engr. Iqbal Zafar Jhagra and others Vs. Khalilur Rehman's and 4 others (2000 SCMR 250) = (2000 CLR 260 + PSCC 2000 442) has contended that the appellant is a professional, and as the liberal and broad construction of the 'word' professional is to be taken, therefore, the appellant's case amply falls within the scope of Regulation No. 51 of Building Regulations of 1984, thus, he is entitled to use 1/2 of its residential property for nonresidential purposes. He has further contended that the Government has levied tax on the persons engaged in profession, by promulgating Punjab Finance Act XV of 1977 and further as, according to item (viii) of Second Schedule to the Punjab Finance Ordinance Ill of 2000, tax has been levied on Health Clubs and Gymnasiums, therefore, the appellant can lawfully run a Body Talk Gymnasium in his residential property. On the other hand, the learned counsel for the respondents, while supporting the impugned judgment and relying upon Section 45 of the L.D.A. Act, 1975 and Regulations Nos. 17 and 51 of Building Regulations, 1984, has contended that the appellant is neither a professional nor his case falls within the scope of Regulation 51 ibid, therefore, he is not entitled to take benefit of the said regulation.
5. Before dilating upon the said issues, it appears appropriate to reproduce certain extracts from the written statement, filed by the appellant to the Constitutional petition:-- Para 4. ".... In that the Health Clinic functioning in the answering respondent's property was started...."
"....Moreover, they have also been using the facilities provided by the answering respondent's Health Clinic...."
On merits at page 5. "....Whereby the answering respondent was allowed to use more than 50% of property No. I 09-A, Garden Block, Garden Town, Lahore, as Gymnasium and Sports Medicine Clinic, in relaxation of LDA's Building Regulation, 1984...."
At page 14. "....The answering respondent is using more than 50% of the ground floor of his property as Gym. And Health Clinic under permission granted by the D.G., LDA in accordance with/relaxation of LDA Building Regulations."
At page 34. "....Profession adopted by the answering respondent is relatable to a Health Clinic which, no, doubt, is not the same as a doctor's clinic, but definitely at par with it for the purpose of Regulation 51 ibid." (underlining is ours)
At page 35. "....Although no formal NO OBJECTION CERTIFICATE was obtained from the neighbours, all of them, including the writ petitioner and her family members, fully endorsed the setting up of the Health Clinic...."
The appellant in para A(4) of the written statement has admitted that a swimming pool in the portion of the open space having a maximum breadth of 6 meters and maximum length of 12 meters has been constructed in the year 1995. Furthermore, it has also been admitted that two squash courts on the Ist floor have also been established by converting two already constructed rooms for this purpose.
6. The first question which arises is that as to whether the appellant is a professional and that whether the running of a gymnasium/swimming pool/squash courts, etc. Can be taken as associated with the appellant business. As regards the qualification of the appellant, it appears from the record (Annex. R/36) that he is only holding a degree of Bachelor of Arts from the Punjab University. However, in order to demonstrate that the appellant is a professional, he, in reply to sub- para (J) of para 17 of the main petition (page 33 of the written statement) claiming to be a professional fitness and nutritional consultant has relied upon certain certificates issued by some unknown academies and some alleged organizations dealing with the sports and medicines. After giving some details of the certificates, the appellant at page 33 of the written statement has asserted as under:-- .............. He is, therefore, entitled to the full benefit provided by Regulation 51 of LDA Building Regulations, 1984 and can use 1/2 floor area of his property as Health Clinic, i.e. Subsequent to his profession."
7. The word 'Profession' and/or 'Professional' has not been defined either in LDA Act, 1975, or in Building Regulations, 1984. The learned counsel for the appellant, while relying upon the afore- noted judgments rendered by the Hon'ble Supreme Court of Pakistan in Ehsan-ul-Haq Piracha and Engr. Iqbal Zafar Jhagra's cases, supra, has tried to import the definition of 'professional', as given in Article 5(i)(a)(iv) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977, President's (Post-Proclamation) Order V of 1977 (hereinafter referred to as the Order) in this case.
We find ourselves unable to agree with the contention raised by the learned counsel, as the definitions given in the order cannot be read into these regulations, as the object and scope of the two enactments are different. It has been held in Ghulam Mustafa Jatoi Vs. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others (1994 SCMR 1299) that it is not safe to pronounce judgment on the basis of provisions of one Act with reference to the decision dealing with the other Acts which are not pari materia. Furthermore, the definition of 'Professional' given in the Order has not been incorporated by reference either to LDA Act or to the Regulations.
Being guided by the afore-noted principle laid down by the Hon'ble apex Court of the Country, we are of the view that the definition of 'Professional' given in the said Order cannot be imported, while dealing with the provisions of Building Regulations, 1984.
8. Another aspect of the case, with reference to the above , is that in the afore-noted judgments, the word 'Professional' has been interpreted with reference to the qualification, as in the said order, the word 'Professional' has been used with the word qualification whereas, in the Regulations the word 'Professional' has been used with the residence. Furthermore, in the case of Ehsan-ul-Haq Piracha supra, the Hon'ble Supreme Court of Pakistan has interpreted the word 'Professionals' and 'Technocrats' side by side and after considering the definition of 'Professionals' used with the word qualification, and the word 'Technocrats', came to the following conclusions:-- "Held, a person without professional qualification but who is otherwise professionally competent, which professional competence is a nationally or internationally recognized, can, become a 'Technocrat if he fulfills the other conditions in the definition of technocrat."
9. As regard the case of Engineer Iqbal Zafar Jhagra supra, the Hon'ble Supreme Court of Pakistan while dealing with the definition of 'Professionals' has mainly relied upon the afore-noted case of Ehsan-ul-Haq Piracha and ha reproduced the relevant portion of the said judgment. While interpreting the word "Profession" or "Professional", it has been held that definition fully governs the particular situation. In the case of Engineer Iqbal Zafar Jhagra, the Hon'ble Supreme Court of Pakistan has mainly relied upon the afore-noted judgment of Ehsan-ul-Haq Piracha, in addition to other judgments relied upon therein.
10. In view of the above, we are of the considered view that the judgments relied upon by the learned counsel are not applicable to the facts and circumstances of the present case and are of no avail to the appellant, as they were rendered in different context and while dealing with a different statute, which is not pari materia either with the LDA Act or/and the Regulations thus the reliance by the learned counsel is misplaced.
11. Now the question arises as when a "word" has not been defined in that particular statute, then what would be the meaning, definition and interpretation of that particular word. It has been held in Ghulam Murtaza Vs. Muhammad Ilyas and 3 others (PLD 1980 Lahore 495) that when the word has not been defined in the concerned statutes, ordinary dictionary meaning can be referred for determining the meaning of such word.
12. Word Profession has been defined as under in Black's Law Dictionary:- "Profession. -- A vocation or occupation requiring special, usually advanced, education, knowledge, and skill; e.g. Law or medical professions. Also refers to whole body of such profession.
The labor and skill involved in a profession predominantly mental or intellectual, rather than physical or manual."
Word 'Professional' has also been defined in the said dictionary as under:-- Professional'. - One engaged in one of learned professions or in an occupation requiring a high level of training and proficiency."
Word 'Profession' has been defined in Wharton's Law Lexicon as under:- Profession', calling, vocation, known employment; divinity, physic, and law are called the learned professions."
If the meaning and definition of the word 'Professional' as enumerated hereinbefore is placed in juxta position to the qualifications of the appellant, claiming to be a professional, given in the written statement, one has to come to an irresistible conclusion that the appellant is not a professional, so as to take benefit of Regulation No. 51.
13. Now the next question arises whether the appellant who is held not to be a professional, can otherwise take benefits of Regulation 51 of Building Regulations, 1984. It would be appropriate to reproduce Regulation No. 51 of the said Regulations, because the entire controversy revolves around the said Regulation:--
51. "Non-residential use. -- Notwithstanding the provisions of Regulation 17, as Housing Unit may include a part, not exceeding 1/2 of its floor area, to be used as office associated with the resident's profession e.g. a doctor's clinic or office, a lawyer's office or technical consultant's office etc."
After having undertaken the in-depth study of the said Regulation, to our mind, a person who wishes to take benefits of this Regulation had to prove three necessary and inseperable ingredients, which are as under:-
(i) to be used as office,
(ii) such an office must be associated with residence profession, (i.e) that such a person falls within the category mentioned in the latter part of the Regulations e.g. a doctor's clinic or office, a lawyer's office or technical consultant's office etc.
14. The most significant word which emerges from the reading of Regulation 51 ibid is the word "office" as the same has been used in the said Regulation on four different places i.e. "such an office", "doctor's clinic or office", "as lawyer's office" or "technical consultant's office". The main stress in this Regulation is on the word "office". To our mind while enacting the said Regulation, the competent authorities were mindful of the fact that a person who is engaged in a profession should be allowed to use a portion of his residential property as his office. After having discussed the afore-noted Regulation, now the next question is as to whether the appellant fulfils three necessary ingredients, as mentioned above. Admittedly, the appellant is running a Body Talk Gymnasium in the residential area as admitted by him in his written statement. If for the sake of arguments, it is conceded that the appellant is a professional, then he can only establish an office in his residential property. Nobody on earth can say, under any stretch of imagination, that a running of Body Talk Gymnasium, inviting the people to take advantage of health club and running a swimming pool and squash courts on a commercial basis can fall within the term office. The learned counsel for the appellant has raised this contention completely forgetting that even if the appellant be considered as a professional then in view of Regulation 51, he can be allowed to set up only an office. If at all the appellant may be considered as a professional, without conceding, even at the maximum he can set up an office in his residential property, but in no way can establish Body Talk Gymnasium, Health Clubs, Cafe-teria, facilities of the swimming pool and inviting the customers to take benefit of the utilities and benefits on commercial basis. Even according to the stance of the appellant, as noted in preceding paras, he has not established any office, but doing the business of Body Talk Gymnasium etc. His stance appears to be that as since he is a professional, therefore, he can use 1/2 of his residential property for nonresidential purposes for whatever purpose and according to his on wishes. We may observe here that this is not the intention of the law-makers in enacting Regulation 51 and the stance of the appellant is itself contrary to the provisions of Regulation No. 51 as discussed above.
15. So far as the reliance of the learned counsel on the provisions of Finance Act, 1977, and the Punjab Finance Act, 2001, if at all any tax has been levied on the profession of Gymnasiums and Health Clubs through the aforesaid provisions, it is not understandable how the imposition of those taxes would entitle the appellant to use the property for running a Body Talk Gymnasium etc. In a residential area and contrary to Regulation No. 51. This contention is of no avail to the appellant.
16. Since civil suit filed by respondent No. 1, against the appellant and others, is, statedly, pending before the Civil Courts challenging the alleged illegal construction, therefore, we have refrained ourselves from giving any findings on the said aspect of the case and the issues regarding the illegal constructions are left to be decided by the Civil Courts.
17. Upon the examination of the impugned judgment passed by the learned Single Judge in Chamber, we find that the judgment is legal, unexceptionable, deals with every aspect of the case and the learned Single Judge after taking into consideration the facts on record and the law on the subject, while exercising its Constitutional jurisdiction, which is, admittedly, equitable and discretionary, has accepted the writ petition. We find that even on equitable grounds, the appellant has got no case and further the discretion has been exercised by the learned Single Judge in accordance with the settled principles laid down by the superior Courts of the country governing the exercise of judicial discretion. We have no reasons to interfere in the said judgment, thus, while affirming the findings rendered by the learned Single Judge, we are inclined to maintain the said judgment.
The upshot of the above discussion is that the present appeal is devoid of any merits, thus, the same is dismissed with no order as to costs.