waqar ahmad seth, j:- - peshawar high court laws/bye laws and orders of peshawar high court peshawar...

JUDGMENT SHEET PESHAWAR HIGH COURT,PESHAWAR

JUDICIAL DEPARTMENT)

Writ Petition No.2635-P of 2013. Dr. Zahoor-ul-Haq��.Versus��Govt: of KPK etc.

J U D G M E N T. Date of hearing 10th March 2015.

Date of announcement 11th March 2015.

Petitioner (s) by Mr. Azhar Yousaf, advocate.

Respondent(s) by Mr. Rab Nawaz Khan, AAG & Mr.

Sabahuddin Khattak, advocate.

WAQAR AHMAD SETH, J:- Through this

single judgment we intend to dispose of the instant Writ

Petition No.2635-P of 2013 as well as the connected Writ

Petition Nos.3152-P, 3375-P, 3380-P, 3468-P, 3491-P,

3492-P, 4578-P, 3653-P of 2014 and 47-P of 2015 as

common questions of law and facts are involved in all

these petitions. The relevant facts of each case are given

below:-

2- (WRIT PETITION NO.2635-P OF 2012)

The petitioner is Managing Director of Zahaq

Associates (Private) Limited which is an educational and

2

consulting Institution, functioning since 2004 and is

properly registered with Government of Pakistan under

section 32 of the Companies Ordinance, 1984 and more

than 100 students are studying in it. That the petitioner’s

Institution is working on Charity basis and is a non-profit

organisation in Khyber Pakhtunkhwa and is bent upon to

give knowledge/education to the people of KPK in a better

manner as well providing them a chance to go abroad

and get more higher level education in different Countries

by giving consultancy to them. It is averred in the petition

that on 03/10/2013 a show cause notice was issued by

the Municipal Committee University Town, Peshawar

(respondent No.6 herein) directing the petitioner to stop

all illegal and non permissible activities carried out in a

house at University Town which notice is totally illegal and

malafide on the part of the respondents.


The petitioner is a qualified Doctor by profession

and running a private Hospital which is properly

registered under the law in the year 2012 for which

3

premises has been taken on rent at the rate of

Rs.90,000/- per month and there are twenty employees

working there; that Municipal Committee University Town,

Peshawar (respondent No.4 herein) issued notice

regarding the deposit of advertisement charges of sign

boards etc vide notice dated 21/08/2014 and he was

allowed for installation of sign board by respondent No.4

through letter dated 11/02/2014 and that on 16/10/2014

respondent No.4 came to the Hospital and directed the

petitioner to vacate the same house at a spur of moment

and also warned to remove the sign boards etc and

threatened him of sealing the premises of the said

Hospital.


In the instant petition the petitioner is running a

private Hospital which is properly registered under the law

in the year 2013 for which premises has been taken on

rent basis i.e. Rs.1,50,000- per month and there are

many employees working there. That on 07/11/2014

respondent No.4 came to the Hospital and directed the

4

petitioner to vacate the same at a spur of moment and

also warned to remove the signboards etc and threatened

the petitioner of sealing the premises of the said Hospital.


In this case the petitioner is operating Saloon by

profession in the name of “M/S Jugun Waseem Saloon”

in a rented premises on monthly rent of Rs.170000/- and

on 16/10/2014 respondent No.4 came to the said

premises and directed the petitioner to vacate the same

at a spur of moment,, warned him to remove the sign

boards etc and also threatened him of sealing the

premises and that the respondents advertised/published

notice in the Daily Newspaper “AAJ and Mashriq” on

30/09/2014 for stoppage work and in consequent to it is

bent upon to seal the rented premises.


The petitioner is the Administrator/Chief Executive

of “HUMZA SURGICAL HOSPITAL” which is providing

health facilities and services to the people for the last

thirteen years and is registered with Health Regularity

5

Authority; that a few days back respondents came to the

petitioner’s hospital and tried to illegally seal the same

without any cause on the ground that the petitioner is

carrying on commercial activities in the area which is

prohibited by the Government; and that respondent No.1

issued notice dated 11/11/2014 for vacation of the

premises within seven days and alongwith this notice the

respondents also handed over another notice dated

10/11/2014 wherein the petitioner was advised to attend

the meeting on the subject matter.


In this case the petitioner is running the business of

“Beauty Parlour” for the last one year in a lawful and

peaceful manner without any complaint whatsoever from

the Government or public at large especially from the

residents of the locality and that all of a sudden the

petitioner received notice dated 11/11/2014 from

respondent No.2 for closure of the business and vacation

of the premises.

6


In this case the petitioner is running the business of

“BEAUTY PARLOR” for the last two years in lawful and

peaceful manner without any complainant from the

Government or the public at large especially from the

residents of the locality and all of a sudden she received

notice dated 11/11/2014 from respondent No.2 for closure

of the said business and vacation of the premises.


The petitioner is running the business of “hair

transplant and hair repair” for the last about eleven

years in lawful and peaceful manner without any

complainant from the Government or the public at large

especially from the residents of the locality and all of a

sudden she received notice dated 11/11/2014 from

respondent No.2 for closure of the said business and

vacation of the premises.


In this case the petitioner is owner of House No.43-

D-II, Old Jamrud Road, Peshawar and running a business

7

of “Import-export” and distribution of Medical

equipments; that on 26/09/2013 the respondents sealed

the property of the petitioner illegally, unlawfully and

without lawful jurisdiction and also disconnected the

electricity, Gas and water supply connections but in the

light of the orders of August Supreme Court of Pakistan

the property was un-sealed and all the connections were

restored and after rejection of Writ Petition No.1578-

P/2012 by the Apex Court, respondent No.1 issued notice

to the petitioner dated 11/11/2014 to vacate the premises

within seven days.


In this writ petition, the petitioner is running the

business of “SCHOOL” for the last ten years providing

best services to the public at large, in lawful and peaceful

manner without any complaint whatsoever from the

government or public at large especially from the

residents of the locality and that all of a sudden

respondent No.2 tried to close the said business and

vacate the premises.

8

12- Arguments heard and record perused as the

learned counsel for the parties are adamant for earlier

disposal of these cases.

13- In all the writ petitions, the petitioners have

challenged the Advertisement dated 30/09/2014

published in daily Newspapers “Aaj & Mashriq” as well

as notice dated 11/11/2014 issued by Chief Municipal

Officer, Municipal Committee University Town, Peshawar

wherein it was mentioned that they have started

illegal/non permissible commercial activities in the

residential House/premises of University Town Peshawar

which is sheer violation of Local Government Act, 2013,

Building Laws/bye laws and orders of Peshawar High

Court Peshawar and apex Supreme Court of Pakistan as

well and they are directed to vacate the premises within

seven days after that no excuse shall be

entertained/acceptable in this respect.

14- Record is suggestive that not even a single

document has been annexed by any petitioner showing

that any sanction or approval for converting the disputed

9

premises in to commercial or for any particular purpose,

other than the residence has been obtained, even any

request made on behalf of the occupant, in this behalf has

not been shown or placed on record. In some of the writ

petitions utility bills have been enclosed, showing that

these utility bills are in commercial tariff and NOC was

issued by the respondent’s/authority, but no such NOC

has been annexed with the writ petitions nor was

produced at the time of arguments. In some of the writ

petitions petitioners have annexed notices regarding

advertisement charges contending that the University

Town Committee, was charging for commercial bill boards

/ advertisement board and as such impliedly, they are

using the premises for commercial purposes with the

consent of respondents/authority. Perusal of these

notices would show that these notices were issued on

temporary basis and the same pertains to the year 2013,

when tax was imposed upon such types of signboards,

but admittedly there is nothing on record to show that any

competent authority, or authority of the respondents,

10

whether lawful or otherwise, had ever given sanction or

any request was processed, in this respect.

15- Record is further suggestive that the wrong is

recurring since long and the concerned authorities of the

respondents were negligent since from the beginning and

specially from 2002/2003, when for the first time notices

to the number of schools and other occupants who were

using the residential premises for the purpose other than

residence were issued. These notices were challenged in

five different writ petitions by number of petitioners and

the same were decided by this court in writ petition No.

676/1199, vide judgment dated 30.10.2003 and the said

judgment was never ever challenged before any forum

and the same has attained finality but even then, the

respondents/department kept mum, which in-fact is a

criminal negligence on their part and in this respect,

recommendations would be made later on in the

judgment.

16- In the above referred writ petitions and judgment

dated 30.10.2003, two types of notices were issued by

11

the Administrator, University Town, Committee, were

discussed and upheld. One notice was based on the

decision of the Provincial Government to shift all schools

from the University Town, residential area and the other

notice alleged violation of NWFP (KPK) Building

Regulation, 1985, was discussed. The first notice was

based on the decision of Provincial Government, in a

meeting held on 2.12.1998, presided over by the Chief

Secretary, KPK, and attended by all others necessary

official, wherein it was specifically decided that’ “All

Educational Institutions, local or Afghan operating in

residential areas in Peshawar/other towns shall be

removed from such localities to suitable sites away

from residential areas”. Whereas, the second notice

was issued under NWFP (KPK) Local Government

Ordinance 1979, read with KPK, Building Regulations,

1985, to the effect that under section 79 of the Ordinance

ibid, states that no building can be erected without a plain

approved by the Corporation and section 81 provides,

“Except with the prior sanction of the Municipal

12

Committee, no building shall be put to use other than

the used as shown in the sanctioned building plain

according to which it was erected or re-erected,

provide that the Municipal Committee shall not

sanctioned any change in the use of a building which

may be in violation or contravention of the master

plain or site development scheme”.

17- In the above referred judgment, NWFP (KPK) Local

Government Ordinance, 2001, was also discussed as

NWFP (KPK) Building Regulations 1985, was amended

by NWFP (KPK) Regulations, 1985, read with

section/article 34 of the 6th schedule in the Local

Government Ordinance, 2001, where under, the use of

residential building for any other purpose was also

prohibited unless the requisite sanction was formally

obtained. The petitioners in those writ petition and the

petitioners in the present writ petitions have not contested

this legal position, rather by that time and this time also,

they have only pleaded that notwithstanding the

prohibition, the petitioners have been allowed to establish

13

and run the premises, occupied them, which were initially

sanctioned and used as residence, for other activities. In

the above referred writ petitions decided by this court, the

questioned of conservancy charges were also discussed

in the following terms:-

“As to the conservancy charges,

the same has been imposed by

Notification of 13.12.1994 issued

under Rule 185 of the University

Town Committee, Peshawar Rules,

1989, read with section 137 of the

NWFP Local Government

Ordinance 1979, wherein different

conservancy rates have been

enhanced. For example, for

schools and colleges, the existing

rate of Rs. 1000/- per month has

been revised to Rs. 200/- per

student per month or Rs. 2000/- per

month, whichever is higher. The

conservancy charges therefore

were already in force and by the

said notification it has only been

increased. Rule 18 of the University

Town Committee, Peshawar, Rules

1989 empowers the University

Town Committee to levy taxes

rates, tolls and fees with the

previous sanction of the

Government. Since civic amenities

14

utilized by schools, colleges,

hospitals etc are much more than

those used in residential houses.

The conservancy charges have

been fixed to meet the additional

expenses on account of such

increased use. These charges have

nothing to do with the conversion

of the use of a building form

residential to educational or

commercial. By no means can the

levy of the conservancy charges be

considered as grant of sanction by

the competent authority to change

the use of the building. There is

formal procedure laid down in

section 81 of the Local Government

Ordinance 1979 and after its

replacement by the NWFP Local

Government Ordinance, 2001 under

Article 34 of the 6th Schedule

thereto. Both the provisions are

similarly worded. It will therefore be

appropriate to reproduce only one

of them. Section 81 (1) of the 1979

Ordinance reads as under:-

81. Regulation of buildings.

(1) Except with the prior sanction of

the Municipal Committee, no

building shall be put to a use other

than the use as shown in the

sanctioned building plan according

to which it was erected or re-

erected.

15

Provided that the Municipal

Committee shall not sanction any

change in the use of a building

which may be in violation of

contravention of the Master Plan

or Site Development Scheme, if

any.

The above provision couched in

negative terms, explicitly

prohibiting the putting into use of a

building in contravention of the

approved building plan without

prior sanction of the Municipal

Committee. Under the Ordinance

XIV of 2001, the Municipal

Committee has been substituted by

“the concerned Local

Government”. Even the competent

authority is restrained from

granting the change of use if it

would violates the Master Plan or

the Site Development Scheme. The

above provision envisages a formal

application for sanctioning the

change of use of a building and the

approval is to be granted only after

considering whether or not the

sanction would be in conformity

with the Master Plan or Site

Development Scheme, if any.

Neither the petitioners had moved a

formal application for the change of

16

use of their building, nor indeed

has any sanction been granted.

As stated earlier some of the

impugned notices have been

issued on the basis of the decision

of the Provincial Government

directing the University Town

Committee to shift the school out

of the University Town. Argument

has also been raised before us that

the said decision did not relate to

local Schools but was confined to

schools run for Afghan Refugees.

Whether the notices have been

issued by the Administrator

University Town Committee on his

own or on the direction of the

Provincial Government, is not

relevant to the issue as to whether

the petitioners can under the law

be allowed to run their schools. As

held above, the establishment of

the schools by the petitioners is

premises constructed for

residential purposes without

proper sanction of the competent

authority, is in violation of the law.

Even otherwise the equitable relief

cannot be granted to those who

violate the law.

18- The above referred judgment attained finality as the

same was not challenged before any forum, but

17

unfortunately the same was put in cold storage by the

respondents, may be due to certain hidden intentions and

the concept of establishing a colony for the employees of

the Government conceived in the year 1958, after

acquisition of area and scientifically planed by providing a

complete residential atmosphere to the allottee and the

residence was ignored. Due to this negligent act i.e non

implementation of the provision of law and even the

above cited judgment, it is witnessed that a Mushroom

growth of non residential and commercial activities in the

shape of Clinics, Guest Houses, Fitness Club, Hotel and

Restaurants, Offices and Beauty Parlours after Schools

and Colleges have cropped up, in an alarming strength

which has overloaded the domestic facilities meant for

residence of the area in the shape of choking of drains,

parking of vehicles on roads, coming of strangers to the

locality, traffic conjunction, use of extra electricity and

gas, rather in nutshell it has become nuisance for the

residence, but all due to the negligent and malicious mum

of the respondents.

18

19- The above narrated negligence and non

implementation of law and the judgment as discussed

above had encouraged other peoples in the other

localities and residential townships, created under the

other laws i.e Local Area Authorities and it is witnessed

that the other townships in the entire Khyber

Pakhtunkhwa, Province the residential premises are

misused for commercial purposes, just giving advantage

to individuals. In this respect number of writ petitions were

filed and this court has decided the matter in Writ

Petition No. 1690-P of 2014, decided on 5.6.2014,

wherein it has been held as under:-

“Peshawar Development Authority

(“PDA”) was put to notice and in

response to the assertions made by

the petitioners in their petitions and

the submissions of the worthy counsel

for petitioners, contended that this

matter has been finally resolved by

this Court in its judgment dated

30.10.2003, in case titled “Principal

International Schools Versus

Government” (Writ Petition

No.1027/1996) vide its judgment dated

30.10.2003.

19

When the learned counsel for PDA

was confronted with the challenge

made by the petitioners on the

basis of “discrimination” he

responded by providing to the

court a list of 292 notices issued to

various persons carrying on

commercial activities in residential

area/ buildings of Hayatabad. The

said list consisting of 08 sheets is

placed on the record as Exh:

PHC/1.

When the judgment of this court in

“Principal International School’s

case (‘supra’) was reviewed, it is

note with approval that the said

decision has aptly discussed the

legal status of PDA, since its

establishment and evolution over

time through the various statutory

regimes; in this regard the

Province of Khyber Pakhtunkhwa

Urban Planning Ordinance, 1978.

Province of Khyber Pakhtunkhwa

Ordinance No. XVI of 2002, Khyber

Pakhtunkhwa Ordinance XVI of

2001, the Khyber Pakhtunkhwa,

Building Regulation of 1984

(“Regulation”) elaborately

discussed and finally after

discussing the five different types

of buildings namely; Residential

Buildings; Clinical Buildings;

20

Commercial Buildings;

Educational Buildings and public

Buildings: came to the conclusion

that:

“According to these definitions it

is the designing of the building for

a particular use that would

determine its nature. In the year

1989 by the addition of schedule B

to the 1985 Regulation by

notification dated 20.2.1989 an

express prohibition was made to

the use of buildings in a manner in

consistent with the prescribed

use. We have to examine whether

the use of the “Residential

building” for establishing schools

and clinics would be

“inconsistent” with the

“prescribed use”LLLL.

“It follows that the use of

“Residential Buildings” for

running schools or opening clinics

is expressly prohibited under the

1985 regulations. This prohibition

is made in the public interest so

that the residents of the township

can be saved from the disturbance

caused by the large number of

people visited the schools and

clinics. It is for the peaceful

enjoyment of the residence by

these residents that the Hayat

21

Abad Scheme had reserved

separate areas for clinics and

public buildings away from the

residential areas. Additionally, the

amenities provided to the

buildings are meant to cater for

the use for which they were

originally sanctioned. To use a

building for a different purpose

may burden the amenities planned

for the area where that building is

situated. Power, gas supplies and

sanitation provisions for a family

in a residential building may not

be able to scope with its use as a

school with hundred of students.

For the reasons aforestated we

have no hesitation in holding that

the use by the petitioners of the

Residential buildings for running

schools or clinics was in violation

and the NWFP Building

Regulations 1985. Thus the

impugned notices issued to the

petitioners have been issued in

accordance with law and do not

suffer form any legal infirmity.

Consequently, the writ petitions

are dismissed.

We are in complete accord with

the principle laid down and the

reasons rendered in support

thereof in concluding that none

22

including the petitioners are

entitled to carry on commercial

activities in “Residential Building”

as the same would be surely in

violation of the terms of allotment

of the plots and Khyber

Pakhtunkhwa Building

Regulations, 1985.

Before parting with this judgment

this court would not shut its eyes

to the duties and obligations of

respondent PDA, which being a

development regulatory authority

and custodian of urban planning,

inter-alia, in Hayat Abad Township,

Peshawar, and thus are obliged to

apply and enforce the provisions

of Khyber Paktunkhwa Building

Regulations, 1985, for urban

planning of buildings and to all

buildings structures, without fear

or favour. While performing its

duties, PDA, has to ensure,

without favour or fear, that all are

treated in accordance with law and

without any discrimination.

Moreover, the guiding principle for

PDA is to ensure that general

public good reign’s supreme;

Necessities public major est quam

private:-

Public necessity is greater than

private; that the necessary

23

requirements of the public good

are stronger, and prevail against

private or individual necessity or

right.”

That the petitioners, including

others, who have plots allotted as

“Residential Building” in Hayat

Abad Township, Peshawar, cannot

be allowed to carry on commercial

activities. However they be

provided 30 days to close down

their “guest house”.

That the respondents PDA being a

development authority and

custodian of urban planning in

Hayat Abad Township, Peshawar,

are obliged to apply Khyber

Pakhtunkhwa, Building

Regulations, 1985, for urban

planning of buildings and to all

building structures, without fear or

favour.

That the respondents PDA are

further directed to submit its

report, under the hand of the

Worthy Director General, PDA, of

the progress made in 292 cases

mentioned in Ex.PHC-1 within a

period of three months, if not

earlier, of receipt of this judgment,

to the Additional Registrar,

(Judicial ) of this court. It may also

24

be noted that the report be

meaningful, clear in its contents,

specific in the steps taken and the

status achieved.

With the above observations,

these writ petitions are dismissed

with no order as to costs.

This judgment was upheld by the Apex

Court in CP No. 1167 to 1173 of 2014, decided

on 30th October 2014, wherein it was held that

the court has the power to issue directions

regarding implementation.

20- Had the respondents acted in time, this alarming

situation would have been avoided. The act on the part of

petitioners running a commercial activities in residential

area has badly effected the life of other co-residence and

at present every 10th residential house is being used for

commercial activities and this act is neither permissible in

law nor under the constitution and specially when no

permission has been obtained or granted. Since, there is

no permission in this behalf, therefore, it can be easily

held that all such activities carried out is illegal, unlawful

and void. It is observed that in the residential areas for

schooling purposes, the students belongs to the same

25

locality, but even then the act was declared illegal, in the

above referred judgment dated 30.10.2003, what to say of

Guest Houses, Clinics, Hospitals, Hair Dresses, Beauty

Parlour and Hospital, which even otherwise, are a cause

of public nuisance in general and specially in the society.

21- In the above referred writ petition decided on

30.10.2003 section 80, 81, of Local Government

Ordinance, 1979, and 6th schedule (section 195) clause

34 of Local Government Ordinance, 2001, have been

discussed in detailed, hence need no further elaboration.

Local Government Ordinance, 2001, was repealed vide

Khyber Pakhtunkhwa, Local Government Act, 2012

(Khyber Pakhtunkhwa, Act No. VIII of 2012) which also

contains the same provision as was in the Local

Government Ordinance, 2001, in the shape of section 109

(1) which reads as under:-

“Regulation of buildings---(1)

Except with the prior sanction of the

Municipal Committee, no building

shall be put to a use other than the

use as shown in the sanctioned

26

building plan according to which it

was erected or re-erected.

Provided that the Municipal

Committee shall not sanction any

change in the use of a building

which may be in violation or

contravention of the Master Plan or

Site Development Scheme, if any”.

The proviso in section 109 even creates a bar on

the respondents / Municipal Committee for not

sanctioning any change in the use of the building which is

in violation of contravention of the Master Plan or site

Development Scheme, if any. Admittedly all the premises

in which petitioners are running their businesses etc were

obtained either on rent or in some cases, are the owner’s

but the site plan were approved as residential houses and

not else. The original site plan scheme produced by the

respondents clearly shows specific places for commercial

activities whereas; the original map is in respect of all

residential area. The plea of the certain petitioners that

they are paying taxes in pursuance of their guest houses

would not effect nor would create any vested right in their

favour to perpetuate their illegality by paying something

27

against the unauthorized and illegal activities. At the time

of arguments a hand written list was produced by

petitioners showing that certain buildings have been

permitted conversion from residential buildings to

commercial plazas by the different agencies/respondents.

In this respect it is observed that Local Government

Ordinance, 1979 to Local Government Act, 2012, there is

a specific bar and even the Municipal Committee/authority

cannot sanction any change in the use of a building which

is in violation or contravention of Master Plan and as such

separate recommendation would be made lateron.

However, this plea would not come to the rescue of

present petitioners because in the referred cases the

buildings were converted into commercial plazas although

not authorized, but present petitioners are using the

buildings / premises which are constructed as residential

houses and there is no such order of conversion may be

illegal, to this effect.

22- During the pendency of suo moto case as well as

pendency of these cases Khyber Pakhtunkhwa, Local

28

Government Act, 2013 has been introduced by repealing

the earlier one, which even further strengthen the powers

of the authority for enforcing the law on the subject.

Section 71 of the Act, reads as under:-

“S.71. General Powers of

Enforcement Officers.---(1) In case of

any serious threat to the public

health, safety or welfare or danger to

life and property, or where violation

of any rule or bye-law is being

committed, the enforcement officer

may, in his area of jurisdiction, in

addition to imposition of fine or

initiating prosecution under this Act-

(a) Suspend any work;

(b) Seize the goods;

(c) Seal the premises;

(d) Demolish or remove work; or

(e) Issue directions for taking

corrective measures within a

specified time.

(2)LLLLLLL

(3) An Enforcement Officer may,

in relation to the

offences specified in Fourth

and Fifth Schedules-

29

(a) Issue notices in writing on

behalf of the local

government.

(b) Initiate legal proceedings in court;

and

(c) Assist in defending legal

proceedings against the local

government.

Whereas, Fourth Schedule (section 66) serial No.5

and 12 reads as under:-

Serial. 5. Doing an act without license or

permission when the doing of

such act requires a license or

permission under this Act or the

rules or bye laws made under it.

Serial.12. Violation of the prohibitions

provided in the Master Plan, the

sanctioned Site Development

Schemes under this Act, or any

other law for the time being in

force including plans and

schemes sanctioned under the

repealed enactments.

23- All the petitioners were issued by name notices

which have been impugned in their writ petitions and the

same notices were published in daily newspapers AJJ &

Mashriq dated 30.09.2014 which Chief Municipal Officer

MCUT, Peshawar, which reads as under:-

30

“To.

------------------------------------

Subject: - NOTICE FOR CLOSURE OF COMMERCIAL ACTIVITIES FUNCTIONAL IN RESIDENTIAL HOUSES / PREMISES SITUATED AT UNIVERSITY TOWN PESHAWAR.

Whereas, it has been observed that you have

started illegal/non permissive commercial activates in

the residential / premises of University Town

Peshawar, which is sheer violation of Local

Government Act, 2013, Building Law / Bye Laws and

orders of Peshawar High Court, Peshawar and Apex

Supreme Court of Pakistan as well.

In this regard a public notices has been

published in Daily “Aaj and Mushriq” dated

30.03.2014, to close down all illegal / non premises

commercial activities whatsoever within 14 days.

Now in a meeting 10/11/2014, with Additional

Deputy Commissioner Peshawar, it has been decided

to take concrete action against the violators.

Therefore, you are directed to vacate the premises

within 7 days, after that no excuse shall be

entertained/acceptable in this respect.

Chief Municipal Officer MCUT, Peshawar”.

24- The above referred section 71 of the Act, 2013, fully

empowers the enforcement officer to seal the premises if

any violation in Fourth Schedule is committed by anyone

as referred above, and also have the power to take the

31

matter to court for the offences in this respect. The

notices issued to the petitioners are in respect of sealing

of premises and which is the power of the respondents /

institutions. It is imperative on the public functionary like

the authority/respondents to ensure adherence of the

regulations. Even otherwise, as per law of the land /

country, lands specified for a particular purpose cannot be

used for any other purpose and specially in a

circumstances when there is a specific bar even on the

competent authorities not to change the original plan.

Learned counsel for the petitioners failed to justify the use

of residential houses for commercial activities, besides

conceding that they have no specific order, in this

respect, by any of the authority, legal or otherwise,

showing that they were permitted or authorized, even for

time being to occupy the premises under their occupation

for any other activity other than the residence.

25- The plea of the petitioners that a vested right has

been created in their favour as they are occupying the

premises for the commercial activity other than the

32

residence, since long, is not a legal argument for the

reason that in the particular area as the same was design

for residential purposes and the people who are in

majority acquired by inhabiting therein had a vested right,

which has been created in their favour. This right is in fact

a necessary appendage to the right to live as enshrined in

article 9 of the constitution and right of leisure as referred

to in the Article 39 of the Constitution. Thus, in the original

plan of the respondents to convert or to permit conversion

or use would have offended against the right of the

inhabitants. In the case of ‘Dr. Abdur Rauf and others

Vs Sh. Muhammad Iqbal and others’ reported in (1991

SCMR 483), it has been held as under:-

---S. 260(h)---General Clauses Act (X

of 1897), S. 21---Town Planning

Scheme Building operation in respect

of specified category of open space

were permanently prohibited---

Government allowed relaxation on

application of private persons

permitting them to build the same---

Governments order was challenged

in Constitutional jurisdiction of High

Court---Town planning scheme

according to which building

33

operations in respect of specified

space were permanently prohibited

had been approved under S. 260, City

of Lahore Corporation Act, 1941---

Petitioners having obtained approval

of the scheme under S. 260 City of

Lahore Corporation Act, 1941, could

not now urge that same was not

under the said section---Provision of

S. 260, City of Lahore Corporation

Act, 1941 provided an elaborate

procedure for initiating a scheme---

Jurisdictional facts necessary for

making reservation under the

provision of the Act had been

enumerated with particularity---For

relaxation of prohibitions contained

in the Town Planning Scheme,

procedure, had not been followed

either on the direction of the

Government or independently by the

corporation---It was not shown that

removal or prohibition contained in

Cl: (b), S. 260, City of Lahore

Corporation Act, 1941, followed the

disappearance of the ground or

factor which necessitated the

prohibition---In the absence of

express power to that effect and in

view of restriction contained in

General Clauses Act, 1897, it was

incumbent upon the corporation to

adopt proper procedure and also to

spell out satisfaction of jurisdictional

34

requirement---That having not been

done, order of corporation whereby it

had ordered relaxation of prohibited

specified area allowing therein

building of Housing Scheme suffered

from legal defect not only in form but

in substance as well”.

26- All the counsel for the petitioners heard at great

length, who could not pointed out that the respondents

were doing something which under the law / byelaws they

could not do or they were required by law/byelaw to do

something which they were wrongfully refusing to do or

they have done something without lawful authority, which

could justify this court to interfere in the matter in exercise

of constitutional jurisdiction. Equally, the petitioners could

not established that they were similarly placed in similar

circumstances, but were treated differently with owners/

tenants of properties situated in the same vicinity / road.

As respondents have categorically stated that no owner /

tenant has been granted permission to convert residential

house into commercial enterprise, therefore, this court

could not issue directions to the respondents to do what

they were not required under the law / rules to do.

35

27- Before parting with the judgment, it is observed in

general that other housing scheme through out the

Province under Local Area Authority and the KPK

Building Regulation, 1985, are applicable, those

authorities are also keeping mysterious mum on these

conversion / use of residential premises and localities for

commercial activities, despite clear directions given to

them in WP No. 3399-P of 2012 decided on 15.05.2014

and WP No. 1690-P of 2014.

28- In view of the above, while dismissing these writ

petitions respondents are directed to.

i) That law / bye laws / Regulations meant for

the purpose be made applicable at par

without any discrimination and even in some

cases the conversion has been allowed,

which is not permitted by the law, the same

be revisited and proper action be initiated.

ii) The Schools / Colleges and Hospitals

excluding Medical Clinics, be given four

months time for shifting of their businesses

and exactly after four months law should be

enforced, positively.

36

iii) Rest all the petitioners or premises against

which the notices have been served and all

the premises which are being used for any

other purpose except residence be sealed,

immediately.

iv) Action be initiated against all those, right

from field officials till the head/controlling

authority who remained in the office/power

after the judgment delivered in WP No.

676/1999 decided on 30.10.2003 for

committing criminal negligence, inefficiency

amounting to misconduct and compliance

report be submitted to the Additional

Registrar (Judicial ) of this court within three

months. The office of the Advocate General is

put to alert in this respect and any non

compliance be brought to the notice of this

court through a reference. Copy of this

judgment be sent to all Local Area Authorities

of all Townships of the Province.

ANNOUNCED. 10th March 2015

J U D G E

J U D G E

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