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Petitioner: Dr. ZAHOOR UL HAQ VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWA through JUDGMENT
Court Name: Peshawar High Court Judge(s): Waqar Ahmad Seth, Musarrat Hilali Title:Dr. ZAHOOR UL HAQ vs GOVERNMENT OF KHYBER PAKHTUNKHWA through
JUDGMENT
Reported As: 2016 YLR 525 Result: Order accordingly Judgment JUDGMENT 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 Petitions Nos. 3152-P, 3375-P, 3380-P, 3468- P, 3491-P, 3492-P, 3548-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 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 mala fide on the part of the respondents. 3. (WRIT PETITION NO.3152-P OF 2014) ' 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 premises has been taken on rent at the rate of
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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. 4. (WRIT PETITION NO.3375-P OF 2014) ' 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 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. 5. (WRIT PETITION NO.3380-P OF 2014) ' ,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. 6. (WRIT PETITION NO.3468-P OF 2014) The petitioner is the Administrator! Chief Executive of "HUMZA SURGICAL HOSPITAL" which is providing health facilities and services to the people for the Las' t thirteen years and is registered with Health Regularity 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 along with 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. 7. (WRIT PETITION NO.3491-P OF 2014) ' 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. 8. (WRIT PETITION NO.3492-P OF 2014) ' 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. 10. (WRIT PETITION NO.3653-P OF 2014)9. (WRIT PETITION NO.3548-P OF 2014) 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.
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' In this case the petitioner is owner of House No. 43- D-H, Old Jamrud Road, Peshawar and running a business 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. 11. (WRIT PETITION NO.47-P OF 2015) ' 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. 12. Arguments heard and recordperused 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 and 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 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, whether lawful or otherwise, had ever given sanction or any request was processed, in this respect. 15. Record As 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. 676/1999, 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 the Administrator, University Town, Committee, were discussed and upheld. One notice
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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 N.W.F.P. (KPK) Building Regulations, 1985, was discussed. The first notice wasbased 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 other 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 N.W.F.P. (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 plan approved by the Corporation and section 81 provides, "Except with the prior sanction of the Municipal Committee, no building shall be put to use other than the use as shown in the sanctioned building plan 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 plan or site development scheme". 17. In the above referred judgment, N.W.F.P. (KPK) Local Government Ordinance, 2001, was also discussed as NWFP (KPK) Building Regulations 1985, was amended by N.W.F.P. (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 petitions 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 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 N.W.F.P. 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 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 N. W.F.P. 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. ' 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.
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' 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 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 ispremises constructed for residential purposes without proper sanction of the competent authority, is in violation of thelaw. 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 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. 19. The above narrated negligence and non implementation of law and the judgment as discussed above had encouraged other people 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 v. Government" (Writ Petition No. 1027/1996) vide its judgment dated 30.10.2003. ' 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
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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 courtin "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; ' 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 school sand clinics would be"inconsistent" with the"prescribed use" "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 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 afforested 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 N. W.F.P. Building Regulations 1985. Thus the impugned notices issued to the petitioners have been issued in accordance with law and do not suffer from 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 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; Necessitas publica major est quam private:- ' Public necessity is greater than private; that the necessary requirements of the public good are stronger, and prevail against private or individual necessity or right."
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' That the petitioners, including others, who have plots allotted as "Residential Building" in IIayat 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 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 C.Ps. Nos. 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 belong to the same 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 sections 80, 81, of…
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