' This Constitutional petition seeks order, dated 15-1-2004 passed by respondent No.1 to be declared illegal, void and of no legal consequence, whereby order of the Provincial Ombudsman, dated 5-8- 2002 was set aside.
2. Precisely relevant facts are that property No.94-13/1, Gulberg-HI, Lahore was originally owned by Pakistan Mineral Development Corporation (PMDC), who applied for its commercialization on which two options were given by the LDA Office i.e. Permanent commercialization on payment of Rs.71,41,000 subject to furnishing of NOCs from the owners of adjoining properties and temporary commercialization on payment of yearly charges of Rs.5,38,297. PMDC elected to have commercialization on 15-5-1995. This property was subsequently sold through open auction to Mr. Muhammad Saleem Bhatti, Chief Executive of the petitioner, who moved an application for permanent commercialization of the property at previously offered rate, but LDA did not accede to this request on the ground that PMDC had availed the earlier order and it was a closed transaction.
Petitioner was conveyed on 30-8-1997 that the request for commercialization by two options is not acceptable and fresh request will be considered on production of NOCs from the owners of the adjoining properties. Consequently, NOCs from the owners of the adjoining properties were provided by the petitioner except that of property No.94-AB/I, which resulted in deferring the case, awaiting NOC from the remaining property owner.
3. Petitioner filed Writ Petition No.5431 of 2000 before this Court averring that petitioner by purchase, above referred, stepped into the shoes of the Corporation (PMDC) and thus the LDA was obliged to grant permanent commercialization of the plot in question on payment of Rs.71,41,000 as commercialization fee. This writ petition was dismissed on 13-6-2000, whereafter ICA No.522 of 2000 filed by the petitioner also met the same fate with the observation that matter regarding commercialization vests with LDA, who may determine it in accordance with rules. In the meanwhile, a new commercialization policy was introduced by LDA in June, 2001. Which waived the condition of. NOCs on a number of roads including Main Boulevard Gulberg, on which the subject property is situated. Petitioner once again approached LDA for commercialization of the property, on which LDA directed it to pay an amount of Rs.91,18,849 for permanent commercialization, which was deposited under protest on 28-1-2002, besides which petitioner also applied for cancellation of sub division of the said property which had earlier taken place on 8-12-1997. Request of the petitioner was accepted subject to additional charges of Rs.28,29,624. Petitioner challenged demand of the LDA, besides challenging the additional charges already deposited through a complaint before the Provincial Ombudsman, who vide his order, dated 8-5-2002 directed the LDA to determine commercialization fee on the basis of their offer to PMDC or in the alternative, on the amount against which the petitioner had purchased the said property through open auction.
4. Lahore Development Authority filed an appeal/representation under section 32 of the Punjab Office of the Ombudsman Act, 1997 before the Governor of the Punjab, where the matter was heard by Mr. Shahid Khan, Secretary Food Punjab, a nominated Hearing Officer, whereafter the Governor Punjab himself passed an order on 15-1-2004, concurring to the view taken by the ICA Bench of this Court and reversed order of the Ombudsman, dated 5-8-2002 and directed the LDA to process case of the petitioner in accordance with their prevalent commercialization policy. Petitioner is aggrieved of decision of the Governor of the Punjab, dated 15-1-2004 and has filed instant Constitutional petition for the relief noted above.
5. Learned counsel for the petitioner submits that the officer who heard the parties (Mr. Shahid Khan, Secretary Food Punjab) had been previously Additional Director General of the Lahore Development Authority and he in this capacity had processed and decided the case of the petitioner thus was estopped to deal with the appeal/representation filed before the Governor of the Punjab. He further submitted that under the provisions of Punjab Office of the Ombudsman Act, 1997 appeal/representation against the order of Provincial Ombudsman was to be heard and decided by the Governor himself and his power could not have been delegated to respondent No.3, thus the order impugned is without lawful authority and jurisdiction. He further submitted that the order impugned has been passed out of misreading of the record, according to him order of this Court in ICA was misread when in the impugned order it was remarked that High Court declined to give any relief to the petitioner. It .Was also contended that order, dated - 15-1-2004 proceeds on erroneous assumption of facts because under the new commercialization policy, the petitioner is liable to pay 20% of the sale price as commercialization fee. According to him, Provincial Ombudsman had directed according to this policy, but a contrary view taken in appeal/ representation is not in consonance with the stand of the LDA itself.
6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, appeal/representation of respondents Nos.2 and 3 before the Governor of the Punjab was decided on merits by the Governor himself. It is immaterial that the appeal/ representation was processed by an officer who earlier held an office of Additional Director General of respondent No.2 because the Governor of the Punjab has not relied on any reference, report or opinion. Of Mr. Shahid Khan, Secretary Food Punjab. Order impugned clearly demonstrates application of independent judicial mind by the competent authority itself. Similarly, argument of the learned counsel for the petitioner that powers of decision of appeal representation cannot be delegated, has no substance because the case was not decided by the officer who processed it. It is amazing if it is assumed that Chief Executive of the Province would himself process the appeal/representation. None of the record could be shown to have been misread. Operational part of the judgment by the DiN;ision Bench of this Court, dated 24-10-2000 has been reproduced in the impugned order in view of which it can hardly be said that order of this Court has been misconstrued or misread.
7. Petitioner earlier was declined commercialization by L.D.A. In the sum of Rs.71,41,000 vide its letter, dated 26-11-1999 against which Writ Petition No.5431 of 2000 was filed but had failed on 13-6-2000 and then ICA No.522 of 2000 was dismissed on 26-10-2000 affirming judgment in the writ petition.
Petitioner had not challenged judgment, dated 26-10-2000 before the Honourable Supreme Courts.
It is not understandable as to how Ombudsman can sit in appeal against the ICA judgment and hold that LDA should accept the same commercialization fee of Rs.71,41,000. It appears that order of the Ombudsman was not warranted and has rightly been annulled through the impugned order.
Since the ICA judgment, dated, 26-10-2000 allowed the LDA to - process fresh application of the petitioner for permanent commercialization in accordance with rules and a similar direction is also contained in the impugned order, I feel it appropriate that matter be sent to respondent No.2 where the petitioner shall file a fresh application for permanent commercialization which shall be processed within two weeks after hearing the petitioner, in accordance with law and rules applicable. Order impugned having been passed within the lawful ambit of the authority and being in consonance with the record and ICA judgment of this Court, cannot be declared, as prayed. This petition consequently affirming the impugned order, is disposed of for decision by respondent No.2, as noted above.