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Petitioner: Dr. SHAHZAD ALAM and 2 others VS Respondent: BEACON LIGHT ACADEMY and 5 others
Court Name: Sindh High Court Judge(s): Munib Akhtar Title: Dr. SHAHZAD ALAM and 2 others vs BEACON LIGHT ACADEMY and 5 others Case No.:Suit No,234, C.M.As. Nos.8781 of 2009 and 1174 of 2008 Suit No,1353 of 2009
Suit No,951 of 2000 C.P. No,D-2621 of 2003 Date of Judgment:2011-07-04 Reported As: 2011 CLC 1866 Result: Application dismissed Judgment ORDER ' MUNIB AKHTAR, J:--- By means of these two applications, the plaintiffs seek interim injunctive relief in the following circumstances. The plaintiffs are owners of, and residents in, residential properties in Block 7, Gulshan-e-Iqbal, Karachi. Their grievance is that the defendants No,1 to 3 are running a school (comprising of one or more branches) in the immediate vicinity of the plaintiffs' properties, which school is being run on properties designated for residential purposes only, and which is causing a nuisance to the plaintiffs and is even otherwise unlawful. 2. Learned counsel for plaintiffs submitted that a property, originally designated as Plot E-113, Block- 7, Gulshan-e-Iqbal, was partitioned into two, one part retaining the old number and the other being numbered as Plot E-113/1. Originally, the school was opened in one of the partitioned plots. Learned counsel submitted that that plot, being a corner plot, had 40 feet roads on two sides. The plaintiffs' own properties are in the immediate vicinity of the property on which the school is being operated. Learned counsel submitted that the school was opened on the residential property without any permission or lawful authdrity and although complaints were made to the concerned authorities, being the defendant No,4 ('CDGK') and defendant No,5 (' SBCA'), these efforts proved to be of no avail and the plaintiffs were, therefore, constrained to file the present suit on or about 28-2-2008. The first of the two applications under consideration was moved along with the presentation of the plaint. On that application, an inspection of the property was ordered on 14-2-2008. The commissioner's report dated 19-2-2008 not merely confirmed the existence of the school, but also established that in fact the school, or one of its branches, had also been extended or opened on the plot immediately behind. In consequence thereof, permission was sought, and granted, to
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amend the plaint to take into account the operation of the school on the other property also, which is Plot E-112. The second of the two applications under consideration was moved to seek interim injunctive relief in respect of that portion or branch of the school as well. Subsequent to the institution of the suit, it appears that Plot E-113/1 was sold off and the new owner was impleaded as defendant No,6. That defendant appeared before the Court and gave an undertaking that his property would only be used for residential purposes. The plaintiffs were satisfied with that undertaking. Thus, the dispute and controversy between the parties now relates to the operation of the school on Plots E-113 and E-112. Finally, it is to be noted that on 10-6-2010 certain interim orders were made, and it was directed that no fresh admissions would be made in the school till 12-10- 2010. The plaintiffs contend that this interim order has been violated by the defendants Nos.1 to 3. 3. The grievance of the plaintiffs is twofold. Firstly, they contend that the subject plots on which the school is running are meant exclusively for residential purposes and that if at all such use is to be altered, that can only be done by making a proper application and following the procedure laid down in the relevant Building and Town Planning Regulations. According to learned counsel, this would require that the plots be converted into amenity plots. Since admittedly this has not been done, the school presently being operated on the subject plots is entirely without lawful authority. The second ground taken by learned counsel for the plaintiffs is that the operation of the school constitutes a nuisance for the plaintiffs since it materially impairs the peaceful enjoyment of their residential properties. In this regard, learned counsel submitted that several hundred children are admitted to the school and during school term, at the opening and closing times, the traffic congestion is such that it is virtually impossible for anyone to access or egress from their properties. Furthermore, the children during the course of the school day, whether in their classrooms or at break-time or during other activities which the school arranges for them, create so much noise and other such pollution and disturbance that the plaintiffs' quality of life is materially impaired. Thus, according to learned counsel, the plaintiffs are entitled to interim injunctive relief against the nuisance created by the operation of the school. Learned counsel placed reliance on certain case-law, which is considered below. 4. Learned counsel for the defendants Nos.1 to 3 strongly opposed the grant of any injunctive relief. He submitted that there was a certain background and history to the operation of the present school on the subject premises. Elaborating this point, learned counsel submitted that in fact, two schools had earlier been operating on the subject properties for a number of yeaRs, On Plot E-113 a school had been operating since 2004, and on Plot E-112 a school had been operating since as long ago as 1999. Even on Plot E-113, according to learned counsel, another school had been operating before the present one since 1998 or 1999. Learned counsel submitted further that Plot E-112 was on a street different from the one on which the plaintiffs had their houses and thus, insofar as this property was concerned, it could not conceivably amount to any interference with the rights of the plaintiffs to enjoy their properties. Learned counsel also submitted that in Sectors E and D of Block- 7, Gulshan-e-Iqbal, there were at least 59 schools in operation and he referred to the statement that had been placed on record giving the list of such schools. Learned counsel submitted that in addition to the schools, there were offices as well in the locality and other commercial operations were also going on in different properties. Learned counsel also contended that the plaintiffs No,2 and 3 had purchased and occupied their respective properties in 2006 or 2007, when admittedly the school was in operation, and thus they had acquired these properties in full knowledge of the situation on the ground. Relying on all of the foregoing submissions, learned counsel submitted that the plaintiffs had no case in nuisance. He contended that the character of the locality had changed long ago and a claim of nuisance had to be considered while taking into account the circumstances actually prevailing in the area in question. Since the locality had ceased to be a purely residential area, and its complexion had substantively changed, the operation of the school
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on the subject properties could not be regarded or termed a nuisance. Learned counsel further submitted that since the plaintiffs had purchased their properties when the school was admittedly in full operation, they must have known or, in law, must be deemed to have known, that the area to which they were moving was, as it were, encumbered by schools, offices and other commercial operations and activities, and could not therefore be heard to make any complaint or grievance on this account. Learned counsel also stressed the fact that although admittedly the school was being run on commercial lines, it nonetheless fulfilled a vital civic need and served the larger public interest and according to him, considerations of the public weal trumped the private rights and interests, if any, being claimed by the plaintiffs. Learned counsel also referred to the fact that in respect of Plot E-112, a suit had earlier been filed by certain other residents of the locality in the civil courts of District East Karachi in 1999, but that plaint was ultimately rejected. Learned counsel contended that it was in fact the plaintiffs who had set up roadblocks or other barriers blocking off some of the roads that gave access to the school, and this had a funneling effect on the traffic. Thus, any congestion or bottlenecks arising out of the students' movements to and from the school were caused by, and directly attributable to, the acts of the plaintiffs themselves. As regards the case of the plaintiffs that there had been a violation of the relevant Building and Town Planning Regulations, learned counsel submitted that, in fact, the. Defendants No,1 to 3 had been ready and willing at all times to convert the properties into amenity plots but that it was the official defendants, i.e., CDGK and SBCA who were creating hurdles and obstacles in this regard. He also contended that in any case since the public welfare and interest was being served, the defendants could not be barred from running and operating their school. Like learned counsel for the plaintiffs, he also relied on certain case-law which is considered below. 5. Learned counsel for the SBCA submitted that no proper building plans had been filed by the defendants with regard to the school, which was being run on a commercial basis in a residential area, and as a result of which the residents were materially disturbed. He further submitted that, to his knowledge, no school had been regularized in the locality and he therefore opposed the operation of the school on the subject properties. Learned counsel for the CDGK also submitted that the properties in question, being residential in nature, had to be used as such and no school could be operated thereon. 6. Exercising his right of reply, learned counsel for the plaintiffs submitted that the nature and complexion of the locality had not been altered, and submitted that in this context the "locality" in question was the immediate area and neighborhood of the school. He submitted that the more expansive application of the term by learned counsel for defendants Nos.1 to 3 was not warranted in the facts and circumstances of the case. As regards the barriers put up by the plaintiffs, learned counsel submitted that those had been put up to prevent other school children, i.e., in schools in different localities of Block 7, from using the lanes to gain access to their schools, since that used to create even more chaos in the immediate vicinity of the plaintiffs' residences than that caused by the operation of the school alone. He emphasized that the school was a purely commercial operation, which was being operated as such and that therefore, it was not permissible for the defendants Nos.1 to 3 to shelter behind any public interest that they were supposedly serving. He prayed that interim injunctive relief be granted to the plaintiffs. 7. I have heard learned counsel for the parties and have examined the record with their assistance and have considered the case-law relied upon by them. In support of his case, learned counsel for the plaintiffs placed reliance on Khurram Khalil and another v. Hameeda Begum and others (HCA No,1/2007, judgment dated 6-11-2008, unreported), Ardeshir Cowasjee and others v. Muhammad Taqi Nawab and others PLD 1993 Karachi 631 (SB), Naz Shoukat Khan and others v. Yasmin R. Minhas and another 1992 CLC 2540 (SHC; SB), Nasir Khan and another v. Federation of Pakistan and others (Suit No,1353/2009, order dated 2-9-2010, unreported), Rana Naeem Mahmood and others v.
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Karachi Metropolitan Corporation and others (Suit No,951/2000, order dated 7-9-2000, unreported) and Lahore Grammar School (Pvt.) Limited and another v. Hameeda Begum and another PLD 1996 Lahore 442. However, in all of these cases it appears that the school in question had not yet started operations or had only just been launched. In the present case, on the other hand, the school (or the previous school on the same location) has been in operation for a number of yeaRs, This is, in my view, an important difference in the relevant facts, and the cited cases may not therefore, be directly applicable as such. 8. The main thrust of the submissions made by learned counsel for defendants Nos.1 to 3 was firstly, that the character or complexion of the locality had altered and this was a material fact that always had to be taken into consideration when determining the question of whether the activities complained against amounted to a nuisance or not. Secondly, he contended that the plaintiffs Nos.2 and 3 had acquired their respective properties in or about 2006 or 2007, when the school had been in operation for a long time and must therefore, be regarded as having full knowledge of the activities that they were now complaining against. Taking the second point first, it is well-settled that the merely because the plaintiff was aware of the relevant facts constituting the alleged nuisance when he acquired the property is not in and of itself sufficient to disentitle him from relief. In other words, it is no defence for the defendant to contend that the plaintiff "came to the nuisance". This settled principle is of long standing, and reference may be made to the old case of Bliss v. Hall (1838) 4 Bing (NC) 183; 132 ER 758, where it was held as follows:--- "In this case the declaration alleges that the defendant injuriously carried on, in messuages contiguous to the messuage of the plaintiff, the trade and business of a candle maker, by which noxious vapours and smells proceeded from the messuage of the defendant and diffused themselves over the messuage of the plaintiff; and all that the defendant says in answer, is, that he carried on the business for three years before the plaintiff became possessed of the messuage he inhabits. That is no answer to the complaint in the declaration; for the plaintiff came to the house he occupies with all the rights which the common law affords, and one of them is, a right to wholesome air. Unless the defendant shews a prescriptive right to carry on his business in the particular place, the plaintiff is entitled to judgment." ' The reference to a prescriptive right is not relevant for present purposes. It follows from the foregoing that merely because the plaintiffs Nos. 2 and 3 came to their respective properties after (and perhaps, even long after) the school had been in operation, is in and of itself no answer to their complaint of nuisance. 9. Turning now to the question of the character or complexion of the locality, this is of course, a well-settled principle of the law of nuisance. The tort was considered in detail by the Supreme Court in Abdul Rasheed and others v. Mahmood Ali Khan 1994 SCMR 2163 (a decision relied on by learned counsel for defendant Nos.1 to 3), and its relevant principles, including those relied on by learned counsel, were reaffirmed. The question however is as to whether, and if so how and to what extent, the character or complexion of the locality has changed and/or is .Such that the acts complained of do not constitute a nuisance. This is of course, a mixed question of fact and law, and it has to be determined on the basis of the material available on the record and the facts and circumstances of the case. In the present case, it is to be noted that admittedly the locality in question is, or at any rate originally was, a residential area and it is also not denied that the school is being operated on residential properties. In such a situation the onus of establishing whether, if at all, the character or complexion of the locality has altered must lie on the defendants. The first point that must be considered is as to what exactly constitutes the locality in question. As noted above, learned counsel for the defendants contended that at least 59 schools were in operation in Sectors D and E of Block 7, Gulshan-e-Iqbal. I agree with learned counsel for the plaintiffs that this draws the circle too broadly. The locality in question, especially in the context of a residential area,
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must be defined in terms that are narrower. The proper locality in a context such as the present must be the area in the immediate vicinity of the plaintiffs' residences, since their grievance is that they are being disturbed in the enjoyment of the residences. That enjoyment would not ordinarily be affected if similar or other commercial activities were being carried out in other neighbouring localities. The owner of a private residence is normally only concerned with, and can only complain about, his own disturbance. He may well be unaffected by other activities which, though similar in nature, are yet A some distance removed from his property. The fact therefore, that there may be other (and even many other) schools operating in Sectors D and E in Block 7 is not of itself sufficient to establish that the plaintiffs are not being disturbed, or that the character or complexion of the locality (as presently relevant) has altered. In this context, reference may also be made to Ardeshir Cowasjee and others v. Muhammad Taqi Nawab and others PLD 1993 Karachi 631, where a similar submission, namely, that the running of schools in residential areas must be accepted as a "fact of life", was peremptorily rejected with the observation that "not only two wrongs, but even numerous wrongs plus one, cannot make a right" (at p. 642). The second point that must be kept in mind is that how the nature or complexion of the locality changes is also of relevant. The point can perhaps be best explained by a simple illustration. Take the case of a residential street in which all the houses are being used for residential purposes. Suppose that in one of the houses, a commercial office is opened quietly, and starts operating unobtrusively. The functioning of the office does not create any traffic congestion, nor does it lead to noise or other pollution, nor does it otherwise impair the enjoyment of the residents of their respective properties. Now, suppose further that over time, a number of other such offices are opened in the houses on the street. Quite clearly, the character or complexion of the street has altered. What was once a purely residential locality has now become a mix of residences and commercial offices, and it may even be that the latter have begun to predominate. Now suppose finally that yet another commercial establishment is opened along the street, but this time its operation or activities involve noise or other environmental pollution or a huge increase in the traffic, which leads to congestion, and as a result, the use of the (remaining) residential properties is materially affected. Could the person occupying the last of the properties put to commercial use, if sued for nuisance, turn around and claim that since the character or complexion of the locality has altered, the plaintiff(s) are not entitled to any relief? In my view, the answer to this question must surely been in the negative. The earlier changes in property usage, whether taken separately or in the aggregate, did not amount to a nuisance; the activities on the last mentioned property clearly do. Two points, in my view, emerge clearly from this illustration. Firstly, the change in the character or complexion of a locality may well be a matter of degree, and may well take place (especially in a context like the present suit) gradually (perhaps even imperceptibly) over time. It would be a question to be decided in the facts and circumstances of each case whether the change that has actually occurred by and up to the relevant time is such that it can be regarded as having altered the complexion of the locality as a whole. Secondly, it is not sufficient, in law, for a defendant to show merely that the character or complexion of the locality has altered. He must, in addition, also establish that the altered state of affairs is such that in that changed context, his activities do not constitute a nuisance. If, despite the fact that the character of the locality has changed, the particular acts of the defendant are such that they nonetheless amount to a nuisance, he would still be liable to the plaintiff. That nuisance could be either because the use of the defendant of his property, although similar in kind to the use to which other properties in the locality are being put, is nonetheless of a quantum significantly greater. Or the nuisance could be because the use of the property by the defendant, though commercial in nature in a general sense, is nonetheless so different from the commercial use to which other properties in the locality have been put that the two simply cannot be equated. In the present case, nothing has been brought on record that would show that the locality in
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question (i.e., the plaintiffs' immediate neighborhood) has been so altered by commercial and other activities that the operation of a school by the defendants No,1 to 3 on the subject properties would not constitute a nuisance. 10. The foregoing discussion leads naturally to the question of what is it about a school that could cause it to be a nuisance (in the legal sense) for the locality. In this context, reference can be made to the English case of Bellamy v. Wells (1891) 63 LT 635. The head-note, which correctly encapsulates the relevant facts and the finding of the court, is as follows:-- "A proprietary social and sporting club was established in Gerrard-street, Soho, London, to afford entertainment to the members by boxing contests between professional pugilists, and also to provide concerts and other entertainments at late hours of the night. ' On the occasion of three of the boxing contests a large and noisy crowd assembled in the street outside the club premises, and cheering, hooting, and whistling were continued at intervals until a late hour. ' Complaint was also made of the noise caused by the nightly summoning of cabs for members of the club, by means of a shrill whistle,. Up to six o'clock in the morning; and also of the noise caused by the cabs racing to the club. A nuisance arising from the noise caused by concerts and singing, and pianoforte playing in the club, was also alleged. ' In an action by the owners and occupants of an adjoining house against the proprietor of the club for an injunction; ' Held, on the evidence, that, with regard to the crowds and the cabs, a nuisance had been proved for which the proprietor of the club was responsible; that he was not using his premises in an ordinary way so as not materially to interfere with the comfort of existence of the occupants of the adjoining house; and that an injunction must go to restrain him from so carrying on his business as to cause a nuisance by noise in respect of the cabs and the crowds." ' Although the actual facts of this case were somewhat different from those at hand, in my view, it is still relevant for present purposes since it demonstrates that if a property is put to a non-residential use, and is used in such manner that at regular times, day after day, there is a great deal of movement to and from the property, and a large crowd periodically gathers there as a result of the activities being carried on thereon, that in and of itself may be sufficient to constitute a nuisance. The activities of, or at, a school can easily come within this description, since at regular and specific times, namely, those of the opening and closing of the school, there is a great deal of movement as students come and go and in consequence thereof, there is considerable congestion outside the school, especially as school vans and buses, and other vehicles, come and go to drop off and pick up the children. The noise caused by the vehicles, including, but not limited to, the honking of horns and the noise of the children themselves, can materially impair the enjoyment by the neighbours of their properties. This is of course, quite apart from the nuisance that may be created during school houRs, Nothing has been placed on record as would show that the character or complexion of the locality has altered, and if so, has changed to the extent that the running of the school could not, or would not, amount to a nuisance in the altered state of affaiRs, 11. In support of his submission that the operation of the school was even otherwise unlawful, being contrary to the relevant building and town planning regulations, learned counsel for the plaintiffs relied on Abdul Razak v Karachi Building Control Authority and others PLD 1994 SC 512, Excell Builders v Ardeshir Cowasjee and others 1999 SCMR 2089 and Ardeshir Cowasjee and others v. Karachi Building Control Authority and others 1999 SCMR 2883. The observations relied upon, namely that the conversion of plots from one category to another, or that usage different from the one permissible, is not allowed under the building and town planning regulations, are of course well-settled propositions.…
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