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Petitioner: Mrs. ROZINA ALI through attorney and others VS Respondent: KARACHI METROPOLITAN CORPORATION through Administrator and 4 others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:Mrs. ROZINA ALI through attorney and others vs KARACHI METROPOLITAN
CORPORATION through Administrator and 4 others Case No.:C.M.As. No, 250, 3405 of 2016 in Suit No,44 of 2016 and C.M.As. Nos, 5688 of 2016 and 16712, 16713 of 2017 in Suit No,841 of 2016 Date of Judgment:2018-05-04 Reported As: 2019 CLC 1081 Result: Order accordingly Judgment ORDER MUHAMMAD JUNAID GHAFF AR, J.---- Suit No,44/2016 has been filed by a resident of House No,12/1 Block 9, Clifton, Karachi, primarily against Defendant No,6 who is running an A-level School /College in the Suit premises bearing House No,F-1 1 Block 9, Clifton, Karachi. Suit No, 841/2016 has been filed by the College (tenant) against the owner of the property (Landlord) as well as Clifton Cantonment Board, subsequent to filing of Suit No, 44/2016. In Suit No 44/2016 on 9.1.2016 an order was passed by this Court directing the parties to maintain status quo and subsequently , in Suit No,841/2016 on 8.4.2016 the notice issued by Defendant No,2 dated 5.4.2016 for shutting down the College was suspended. The pending applications in both these Suits have been heard together and are being decided through this common order . For ease of reference; the Plaintif f in Suit No,44/2016 would be hereinafter referred to as "Plaintif f", whereas, the Plaintif f in Suit No,841/2016 who is Defendant No,6 in Suit No, 44/2016 would be referred to as " Defendant No,6 " for the purposes of both these Suits. 2. Briefly , the facts as stated are that Plaintif f is resident and owner of House No, F-12/1 Block 9, Clifton, Karachi and is aggrieved with the act and conduc t of official Defendants as well as Defend ants Nos, 5 and 6 for running a College in property bearing No,F-1 1 Block 9, Clifton, KDA Scheme No, 5, Karachi which is just adjacent to the Plaintif f's house. This according to the Plaintif f is without lawful authority and is a matter of inconvenience as well as nuisance. Learned Counsel for the Plaintif f has contended that this Suit was filed on 9.1.2016 and at the relevant time it was only the renovation work on the Suit premises which was going on, and upon inquiry , it came to the knowledge of the Plaintif f that some College is being opened. However , the Plaintif f was then unaware as to who will be running the College and therefore, it was only Defendant No,5, the owner of the property , who was arrayed as a Defendant. He has further contended that as soon as the construction/renovation started, a legal
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notice was issued on 26.3.2015 wherein, it was categorically stated that the property in question on the basis of the covenants of the Lease can only be used for residential purposes, and therefore, the Defendant No,5 was called upon to halt / desist and cease operations of any nature towards establishing and running of any School or College. Learned Counsel has also referred to Regulation 18-4.2.2 of the Karachi Building and Town Planning Regulations, 2002, which according to the learned Counsel, provides that a residential plot can only be allowed to be used for educational purposes provided the plot faces a road which has a minimum width of 60 feet which is not the case in this matter . Per learned Counsel, neither the property in question has been converted for any such purposes; nor in law could it be done so. According to the learned Counsel, subsequently , it transpired that Defendant No,5 has entered into a rental agreement with Defendant No,6 who were thereafter , arrayed as a Defendant and an amended title was also filed vide order dated 16.3.2017 and according to the learned Counsel, in the very agreement the owner has agreed to let out the said premises on rent to establish and run educational institution on commercial basis on the terms and conditions mentioned Therein. This according to the learned Counsel could not have been done so as the law does not permit usage of a residential property for commercial purposes. As to causing inconvenience and nuisance, learned Counsel has contended that hundreds of students have been admitted after passing of interim order , whereas, this is a continuous cause of nuisance in the shape of use of loudspeaker , heavy traffic, unwanted people coming in and out in the area, and therefore, the Plaintif f has made out a prima facie case hence, the ad-interim injunction granted be confirmed by directing Defendants Nos,5 and 6 to close the College in question, whereas, the application of Defendant No,6 in the connected Suit be dismissed. 3. On the other hand, learned counsel for Defendant No, 6 has contended that insofar as the objection regarding conversion of the property in question for commercial purposes is concerned, the same is misconceived inasmuch as it is only the usage of the property which has changed and not the status of it being residential. Learned Counsel has further contended that though the Lease of the property has been issued by KDA; but that is only concerned with Town Planning, whereas, in terms of Sections 3 and 5 of the Cantonments Act, 1924, read with Notification dated 2.3.1983 for all municipal purposes the property falls within the limits of Cantonment Board Clifton; hence, the covenants of the Lease in question would not be relevant for deciding the present controversy. According to the leaned Counsel, it is the Cantonment Board Clifton Building Bye-laws, 2007 issued on 3.2.2007 which would be applicable and pursuant to Rule 125(7) a residential plot within a residential neighborhood can be allowed to be used for education purposes by the Board after inviting public objections from neighborhood. Therefore, according to the learned Counsel, no commercial conversion has been made and the property is still residential in nature; but it is only the usage which is of prime consideration and as per the bye laws itself, it can be used for educational purposes; hence, there is no illegality In running the Institution by Defendant No,6. Learned Counsel has further contended that though he is not in possession; but there is some resolution of the Clifton Cantonment Board pursuant to Bye law No,125(7), which permits such usage. He has further contended that there are at least 17 other Schools within the same vicinity, whereas, once the law permits such usage, then the Court must show grace and issue directions for grant of such permission, and even conversion, Per learned Counsel, it is the case of the Defendant No,6 that it was established on the Suit premises on 1.7,2014 and was admittedly in existence much prior to the passing of status quo order. He has further contended that it is a matter of evidence for the Plaintiff to prove that its right as an individual has been infringed and nuisance has been caused or not, and therefore, at the injunction stage, no such relief as prayed could be granted. Learned Counsel has further contended that the plaint does not specifically states the cause of nuisance and its detail(s) and therefore, it would be in the fitness of things that a Commissioner be appointed to inspect the entire area as it is only the Plaintiff's house which stands along as a residential house. Per learned Counsel at least 1300 students are attending the College since long, whereas, earlier no objections were raised and Defendant No,6 as a responsible institution is managing the timings of the classes and is not having any afternoon or night shifts, and therefore, balance of convenience lies in favour of Defendant No,6. He has further contended that proper traffic management is being done with the assistance of the concerned traffic police, whereas, even otherwise, if directed, Defendant No,6 undertakes to ensure taking all further steps to redress the grievance of the Plaintiff, if any. As to the applicability of a recent decision passed
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by the Hon'ble Supreme Court reported as 2018 SCMR 76 (Mst. Yawar Azhar Waheed through. L Rs, v. Khalid Hussain and others) and relied upon on behalf of Cantonment Board, learned Counsel has contended that the same does not apply to the facts of this case, as it is only in respect of a Scheme floated / initiated by the Cantonment Board itself, and according to the Judgment of Hon'ble Supreme Court, no commercial building can be raised and approved on a residential property, whereas, in this case the property in question is still residential and no conversion has been made nor any commercial activity is being carried on. Learned Counsel has also read out Sections 179 and 181 of the Cantonments Act, 1924 and has contended that since this scheme was initially launched by KDA, hence, the restrictions in law of Cantonment are also to be applied in consideration of such fact only. He has also relied upon 2011 CLC 1866 (Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others ) which is an order passed by a learned Single Judge of this Court in respect of a School being run in a residential area, wherein, the injunctive relief was refused against the School. According to the learned Counsel, this reported case is a complete answer to the core issue in this matter, and the learned Single Judge has considered all such objections as are being raised in this case, as to whether, but not limited to, any nuisance, inconvenience, prima facie case, balance of convenience, irreparable loss, and finally, the most important issue of scarcity of suitable plots for establishing educational institution in the city of Karachi. In view of such facts, learned Counsel has prayed for dismissal of plaintiffs applications and granting the application of Defendant No,6. 4. Learned Counsel for Cantonment Boar d Clifton, the Defendant No,4 in Suit No, 44/2016 and for Defendant No,2 in Suit No, 841/2016 has contended that insofar as Suit No, 44/2016 is concerne d, on 9.1.2016 an interim order was passed and parties were directed to maintain status quo; however , Defendant No,6 in its Suit No, 841/2016 also obtained an interim order dated 8.4.2016 whereby , notice issued by Cantonment Board in this context was suspended. But according to the learned Counsel, Defendant No,6 concealed material facts inasmuch neither the present Plaintif f was arrayed as a Defendant in its Suit, nor it was properly disclose d to the Court that already there is a status quo order against the Defenda nt No, 6. Learned Counsel has contended that the owner of the property in law has no right or justification to rent out the same for commercial purposes, whereas, Cantonment Board was, and is, acting in accordance with law against all such persons who are using their properties in violation of their bye-laws. Per learned Counsel insofar as bye-law 125(7) is concerned, neither any application has been made to the Cantonment Board, nor for that matter , could have been considered by the Board itself in view of an admitted objection by the next door neighbor who is already before this Court as a Plaintif f in Suit No, 44/2016. Per learned Counsel bye-law 2(v) defines an amenity plot, which means a plot allocated exclusively for the purposes of amenity which includes education uses, whereas, bye-law 2(1) defines residential zone. Learned Counsel has finally submitted that since students are studyi ng, therefore, Defendant No,6, while granting application of plaintif f for injunction be given sufficient time to vacate the premises so that no inconvenience is caused to the students. In support he has relied upon PLD 2004 SC 633 (Islamuddin and others v. Ghulam Muhammad and others), PLD 1976 SC 785 (Muhammad Ilyas Hussain v . Cantonment Board, Rawalpindi). 5. Learned Counsel for Defendant No,5 in addition to adopting the arguments of the learned Counsel for defendant No,6, has relied upon 2005 YLR 1895 (Messrs Shaheen Service Station v. City District Government, Karachi and others ) and has contended that the Karachi Building & Town Planning Regulations, 2002 do not apply and it is only the Cantonments Byelaws 2007 which are relevant. He has further contende d that an application for such conversion has already made, though he is not in possession of any such application nor it has been placed on record. Per learned Counsel the entire area is being used for commercial purposes, whereas, the Plaintif f itself is running a clinic from his home. He has also relied upon Dr. Shahzad Alam supra . 6. While exercising the right of rebuttal learned Counsel for the Plaintif f has contended that the first legal notice was issued on 26.3.2015 and admittedly no such College was established and only some renovation work was being carried out; therefore, the contention that the College was already operating is misconceived. He has further contended that even a public notice was published in the newspapers on behalf of the Plaintif f on 9.1.2016 but the same was also ignored and in clear disobedience to this Court's order , the Defend ants Nos,5 and 6 in connivance, have opened the school and are still continuing with the same which is also a contempt of Court.
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7. I have heard all the learned Counsel and perused the record. Facts have already discussed in detail; however , for the sake of repetition, it may be observed that it is not in dispute that Defendant No,6 is using the Suit premises for running a College. Defendant No,6 is the tenant of Defendant No,5 on the basis of a Tenancy Agreement dated 15.1.2015 which provides that "whereas, the owner has agreed to let out said demised premises and the tenant have agreed to take the said demised premises purely on a rental basis to establish and run educational institution on commercial basis on the terms and conditions mentioned below" . The agreement of Defendant No,6 itself states that the Suit property has been acquired on rent for running the College i,e, the educational institution on commercial basis. What more is needed to adjudicate that it is not being used for a commercial activity is unclear . The argument that it is only the usage of the premises for running an educational institution, which otherwise is permissible, is the moot question, does not appeals to this Court. A usage can't be carried on without permissive covenants to that effect in the lease documents of a property . Once it is being used for any other purpose than permitted in the lease of the property , then it is immaterial as well as irrelevant to contend that it is only the question of usage, whereas, the property remains residential, and for such usage, no conversion is needed. This is totally absurd, unconvincing and an attempt of juggling of words as well. The Plaintif f is the next door neighbor of the Suit premises, and has come before this Court challenging the establishment and running of College in Suit premises which is admittedly a residential house. The precise case of the Plaintif f is that firstly no such commercial activity of running a College is permitted, whereas, even if it is permitted, then it is a case of inconvenience for the other residents. The learned Counsel for Defen dant No,6 has made an effort and attempt to make a distinction between a commercial activity and usage. His case is that insofar as Defendant No, 6 is concerned, they are in occupation of a residential premises which has not been converted into a commercial premises as no changes of whatsoever nature have been made to make the premises inhabitable for commercial activity . According to the learned Counsel, such usage of the premises for educational purposes is not a commercial activity , whereas, it is permitted under Bye-law 125(7) ibid, However , with utmost respect, I may observe that the same is misconceived. It is not in dispute that the College is being run on commercial basis which is clearly stated in the tenancy agreement. Even otherwise, it is not conceivable that a business is being run for imparting educa tion and it is not a commercial activity per se. Though an element of rendering service (i,e, education) is involved, but rendering of education in this manner is purely commercial and business oriented. It is not the case of Defendant No,6 that they are a charitable organization; or for that matter any subsidized or free education is being imparted for the residents of the area and other students. Therefore, the contention that their usage is not of comme rcial activity , does not appeal to a prudent mind as all along it is purely a commercial venture which is being run to make profit(s). 8. As to the applicability of Karachi Building and Town Planning Regulations, 2002 or the Cantonments Bye-laws is concerned, it may be observed that again it is an admitted position that the Suit property has A not been converted under either of these two laws for commercial purposes. It is and it remains a residential house. Neither the formalities and procedure, as provided under the KB&TPR, 2002 has been observed, nor any such procedure under the Cantonment Bye-laws has been adhered to. This is notwithstanding the fact that whether such procedure of conversion is applicable on the Suit premises or whether it otherwise qualifies for conversion or not. Much reliance was placed on Regulation 125(7) of the Cantonment Board Clifton Bye-laws, 2007 notified through Notification dated 3.2.2007 which provides "that residential plot within a residential neighborhood can be allowed to be used for education purpose by the Board after inviting objections from neighborhood" . Firstly , it was conceded that no such application was ever submitted before the Cantonment Board before starting operations of the College. Even if such application was made, there isn't any question of entertaining the same and inviting public objections, as the immediate neighbor is already before the Court and an objection is already in field. In view of such position, even otherwise, the Cantonment Board could not have granted such permission; therefore, reliance placed on this Byelaw is even otherwise, misconceived. 9. Secondly , the learned Counsel for Defendant No,6 has contended that it is a case of nuisance; therefore, this could only be proved once evidence is led and no injunction can be granted. Learned Counsel also referred to the Judgment in the case of Dr.Shahzad Alam supra wherein, a learned Single Judge of this Court in a very detailed manner has discussed the pros and cons of running a School within a residentia l area, and after coming to the
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conclusion that though the three ingredients of granting an injunction are present; but refused to grant any injunction against running of a School in a residential area, However , firstly , it may be observed that the said Judgment is not a binding precedent being delivered by a Single bench of this Court and is only persuasive, Even otherwise, an appeal bearing HCA No,118/201 1 was preferred against this judgment and by consent an order was passed whereby , the School agreed to vacate the premises within certain period of time, therefore, the impetus and the effectiveness of these observations have somewhat diluted, not capable of being regarded as a binding precedent anymore. Having said that, the same learned Judge subsequently in Suit No,1358 of 2009 vide order dated 10.5.2012 himself refused to follow the same dictum on the ground that the facts of earlier case i,e, Dr. Shahzad Alam supra were entirely different as in that case the School was being already run for a considerable period of time. Hence, on this account also the case of Dr. Shahzad Alam supra is not a binding precedent for all times to come and must only be considered in a case of identical facts, however , again that would be subject to limitation as already discussed hereinabove. Secondly , it may be observed that for the present purposes, 'it is not a case of nuisance only; but so also of running a College by contravening the Regulations and the applicable law. It cannot be said that if a person is aggrieved by the act and conduct of an immediate neighbor who is admittedly contravening the statute or law, that first the neighbor must prove through evidence that such act is an act of nuisance, and only then a relief of injunction could be granted. This proposition may be correct in a case wherein, the immediate neighbor's act is permissible in law; but once the act complained of is admittedly outside the ambit of law, and is a case of nuisance, per-se, then perhaps, the aggrieved person must not be asked to, or required to, prove it through evidence at the trial nece ssarily . This in my view is an important aspect of the matter , which must not be lost sight of by the Court while dealing with this question of nuisance at the injunctive stage. It is settled law that in case of nuisance the jurisdiction of the Court to grant injunction is also in aid of the legal right, one has, for enjoyment and protection of its property . And when the injury or act complained of is of substantial nature, (it need not further be discussed that running of a School next to one's house causes substantial inconvenience, in addition to various other issues), it definitely cannot be compensated adequately by granti ng damages. Similarly , if it is of permanent nature as to mischief being caused, and is a recurring grievance, then it must be stopped by way of an injunction. The act complained of in this matter is infringement of the plaintif f's lawful rights arising out of an act which itself is wrongful, and would lead to consequences flowing further from it. It is also to be kept in mind that for defining certain act as nuisance for the purposes of an injunctive relief, the overall attending circumstances are to be kept in mind. Merely for the argument that no detail specifics have been mention ed in the plaint, the Court would not be denying the relief of injunction, when on the face of it there is a case of clear violation of law. The attending circumstances cannot be ignored as suggested. Here, in this matter , it is not in dispute, rather conceded that a College is being run in a residential house, for which Defendant No,6 has no permission or conversion for such use, either from the Sindh Building Control Authority , Karachi Development Authority , or for that matter from the Cantonment Board. In fact it is the case of Defendant No, 6 as well as Defendant No, 5 that they intend to approach the Cantonment Board under Regulation 125(7). Therefore, the argument that a case of nuisance could only be made out after a full-fledged trial is perhaps not relevant for the present purpose. 10. The other question that running of School or College having more than 1300 students and giving education cannot be termed as a commercial activity has been answered by a learned Division Bench of this Court in the case of Hussain Bux Memon v. Karachi Building Control Authority (2015 YLR 2448 ) wherein the learned Division Bench had the occasion to deal with somewhat similar situation, wherein, Respondent No,4 (College of Accounting and Management Sciences) was running an Accounting cum Business College in violation of lease conditions which provided that "the sub-lessee shall not without the previous consent of the lessor divert the plot to use other than those which it is intended as per sanctioned lay out plan" and the stance of respondent No,4 was that right to education was concomitant to fundamental rights, and business education such as ACCA, BBA, MBA etc. was specialized education and such activity by no stretch of imagination be termed as commercial activity . However , the same was repelled by the learned Division Bench by observing that; "10. On merits, there appears to be no denial that the present use of the subject property by the respondent No,4 is not only in violation of the terms and conditions of the lease but also lacks approval from the building control
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authority , as the present use of the building by the respondent No,4 is in gross violation of the Karachi Building and Town Planning Regulations, 2002. Mr. Akhund has laid much stress upon the importance of education and exemption of educational institution from the application of building and or Town Planning Laws. The importance of education in our societ y or in any society cannot be ignored and perhaps the legislature itself while realizing such importance has allowed the educational institutions to impart education in a residential area but has laid a condition that such change of use is permissible in only those residential areas where the width of the road is 60 feet or more. We for the sake of convenience would reproduce the text of Karachi Building and Town Planning Regulations 18-4.2.8 which reads as follows:-- "Residential plot within a residential neigh borhood can be allowed to be used for Education provided the plot faces minimum width of road 60 ft. and lawfully converted into an Amenity plot for education by the (MPG) as per…
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