' The petitioner besides its other involvements, is a developer of housing schemes who initially introduced such a scheme in the name of "Kohinoor Town" over an area of 40 acres, lay out of which was submitted before respondent No.3, which was approved by it, besides issuance of a "No Objection Certificate" dated 16-12-1995. The petitioner after approval of its "Kohinoor Town" by the competent authority, started sale of plots carved in that scheme and completed it during the period falling in the years 1996 and 1998. After successful completion of "Kohinoor Town", the petitioner submitted another scheme for approval of the respondent No.3, which, this time was covered by approximately 61 acres and was named as "Kohinoor City". According to the petitioner, this new scheme i.e. "Kohinoor City" is absolutely independent to the one earlier introduced by it and was separately approved by respondent No.3 vide letter No.5942/TP/FDA2000 dated 14-10- 2000.
2. The petitioner had sold out two commercial plots bearings Nos.20 and 29 measuring 3.7 Marlas and 3-1/2 Marlas respectively from "Kohinoor Town" in favour of respondent No.5 in the year, 1996.
These plots were sold on the basis of an approved plan by respondent No.3, which provided for reservation of a 10 feet arcade in front of those plots. Respondent No.5 constructed a shop in violation of approved plan, above referred, without leaving any space for a 10 foot arcade. Similar violation was also 'done by the other shopkeepers in the area. Respondent No.3 wanted to construct a service road of 20 feet width and consequently required respondent No.5 to remove the construction raised by him, without getting sanction for the construction of his shop. In this background, respondent No.5 filed a complaint before the Provincial Ombudsman wherein the petitioner was not impleaded as a party. The matter war decided on 1-4-2002 whereby respondent No.3 was directedto compensate the complainant either in terms of money or by providing alternate land.
3. Respondent No.3 felt aggrieved of the decision of the Provincial Ombudsman dated 1-4-2002 and filed a representation before the Governor of the Punjab (respondent No.1) under section 32 of the Punjab Office of the Ombudsman Act, 1997, where the parties i.e. Respondents Nos.3 and 5 compromised and on the basis of it, and order dated 18-9-2003 was passed, partly allowed the representation of respondent No.3. This order proposed a six points formula, which was accepted by both respondents Nos.3 and 5 at the back of the petitioner, which reads as under:--
(a) FDA will allow a set back of 10 feet instead of 20 feet for the construction of road. 10 feet set back is permissible under HUD and PHE Department's notification No.SO(D-II)5-2/81/Vol-11 dated 22nd July, 2001.
(b) Construction of shops will be without arcade.
(c) All purchase of commercial plots/affectees will submit an undertaking of acceptance of the aforementioned solution to FDA.
(d) FDA will give NOC to the TMA Faisalabad City on the above mentioned lines for approving the building plans of Kohinoor Town Scheme.
(e) FDA will intimate the TMA Faisalabad City not to clear/approve Phase-II of Kohinoor Town (owned by the same developer) unless it is cleared first with FDA.
(f) FDA will give the NOC for Kohinoor Town, Phase-II only after the developer pays compensation for the 10 feet setback to the affectees of the commercial plots.
' The points at serial No.(a) to (d) in the order of respondent No.1 dated 18-9-2003, does not concern the petitioner whereas points at serial No.(e) and (f) relates to it, whereunder it was agreed between the aforementioned respondents that on recommendation of FDA. TMA City, Faisalabad will not clear/approve Phase-II of Kohinoor Town (owned by the petitioner) unless it is first cleared by the FDA who was to issue NOC of Kohinoor Town, Phase-II, only after the developer pays compensation for the 10 feet setback to the affectees of the commercial plots.
4. The petitioner, inter alia, is aggrieved that though it is notresponsible for any construction raised by respondent No.3 in violationof Building Regulations, 1984 of the respondent No.5 yet it could not be burdened with any responsibility of compensating respondent No.3, in view of 10 feet setback to the affectees of the commercial plots, at its back and that too, without hearing. It is also complained that there is no "Kohinoor Town" Phase-II of the petitioner and its scheme in the name of "Kohinoor City" has incorrectly been made a warranty for payment of compensation to respondent No.3.
5. I have hard the learned counsel for the parties and have anxiously considered their respective arguments. It is not disputed that the petitioner was neither a party before the Provincial Ombudsman nor before respondent No.
1. Order dated 18-9-2003 passed by respondent No.1 is thus, patently, without notice, without hearing of the petitioner and was passed at its back. Law regarding notice and hearing of an affected party is settled by this time and the authorities discharging judicial or quasi-judicial functions are obliged to hear the person against A whom they proposed to proceed. The above portion of the order dated 18-9-2003 clearly demonstrates that the petitioner has.Been burdened with a liability, in its absence and thus, to its extent, this order is not maintainable at law. Regarding hearing of an affected party, I have with me, judgments or the Hon'ble Supreme Court in the cases of Collector, Sahiwal and 2 others v. Muhammad Akhtar (1971 SCM R 681) and Fateh Muhammad v.
Mushtaq Ahmad and 9 others (1981 SCM R 1061).
6. Besides requirement of a statute of giving notice of hearing to the party affected person. It is a cardinal principle of natural justice that nobody should be condemned unheard. A reference in this behalf can be made to the cases of Mst. Sattan and others v. Group Captain Masroor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt (PLD 1962 Lahore (W.P.) 151), Mst. Abeda Begum v. Government of B Pakistan and others (1985 CLC 2859) and Abdul Rashid v. Government of the Punjab through its Chief Conservator of Forests (1985 CLC 199). Law regarding hearing of parties has gone so far that if any statute does not provide any provision regarding hearing of the concerned person, such provision has to be read in each statute, in view of the law laid down by the Hon'ble Supreme Court in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408). Compromise between respondents Nos.3 and 5 brought to six points compromise formula, reproduced above, especially the points with caption (e) and (f) create liabilities and punitive actions against the petitioner who was not party to it and respondents who compromised were not acting as its agent, under any authority from the petitioner. Faced with this legal propositionlearned counsel appearing on behalf of respondent No.1 has shown his inclination of rehearing the matter at least to the extent of the petitioner and to decide the matter afresh after hearing it. Offer of the learned counsel for respondent No.1 is acceptable to the petitioner,consequently, I accept this Constitutional petition and declared the part of the order dated 18-9-2003 to the extent of the petitioner, concerning points reduced under serials (e) and (f) to he illegal, void and of no legal consequence, with the result that representation of respondent No.3 concerning the petitioner, shall he deemed to be pending before respondent No.1 which shall be decided afresh after hearing the petitioner, in presence of other parties, who are directed to appear before respondent No.1 on 22-4-2004 for decision the matter within a period of two months.
There will be no order as to costs, of the petition in hand.