1. ' S. ALI ASLAM JAFRI, J.--- By this common order we propose to dispose of the above mentioned two Constitution petitions having common points of law and facts.
2. ' In the first instances Petitions Nos.1 to 4 had filed C.P. No,D-615 of 1991 praying therein for a direction to respondents Nos.2 to 5 to carry out their statutory duties to cancel the building plan of Plot No,164-H/3, PECHS, Karachi and ;lc, te.Ke necessary action to forfeit the lease and to resume the plot in question. An application under Order XXXIX, rules 1 and 2, C.P.C.
3. Was also filed. It is the case of the petitioner that on 16-6-1991 when the abovesaid application came up for hearing an order was passed by this Court that the building which was proposed to be constructed on the plot in question shall not be used by respondent No,1 except for the purpose which was permitted by lease document. However, it appears that after construction and completion of the building the respondent No,1 proposed to open a school and certain steps were taken in respect thereof hence an application under Order XXIX, rule 2(3), C.P.C. Was filed against the Honorary Secretary of respondent No,1 to restrain him from taking any steps to start the school or any educational institution and to close down the same, if already opened. In reply to the abovesaid application, counter-affidavit was filed by Mr. Jamil Yousuf, Honorary Secretary of respondent No,1 that express consent in writing of the lessor and the competent Authorities had been taken to convert the said residential plot into an amenity plot with permission to use the said plot for educational purposes. Photostat copies of the conversion order, site plan and paid-up challans, from Section Officer, Minister of Works, Government of Pakistan, the Administrator PECHS, Karachi, Government of Sindh and KBCA were filed in support of such contentions. In view of the above mentioned changed circumstances, the petitioners Nos.1 to 4 filed an application under Order VI, rule 17, C.P.C. Seeking permission to amend the petition by seeking further relief challenging the said acts of. The Authorities. The said application was dismissed by this Court on 9- 2-1993 by observing that such amendmenrcould not be allowed as there was a distinct cause of action as such the petitioner could file another appropriate petition. It is also pertinent to note that an application was also filed by the petitioners Nos.1 to 4 to join Mst. Nighat Naseem owner of adjoining plot as petitioner No,5. Another application was filed by another set of persons namely Muhammad Hussain and others for being joined on the same ground of being neighbors and owners of properties as respondents, praying therein that the running of the school in question is in the interest and welfare of the neighbors. The said interveners expressed their wish that their children should continue their studies in the said school which is one of the top schools in the city and catering the educational need of the children of the locality. They further stated that no nuisance is being caused to any of the neighbors/intervenors and in fact their interest shall be adversely affected if they were not joined as respondents. Both these applications were granted on 9-2-1993 and order for filing the amendment title was passed. An identical application was also filed by intervenors All Akbar and others praying therein for being joined as respondents. The said application was dismissed with the observations that since the question regarding the conversion of the plot in question is allowed to be raised though a separate petition hence it would be either for the petitioner or for the parents of the school-going children to be joined or sought to be joined in such proceedings which were to follow. It was the background giving rise to the filing of Petition No,632 of 1993.
4. ' It has been contended by Mr. Khalilur Rehman learned counsel for the petitioners that the school has been opened in a jresidential area due to which right of privacy and entrance to their residences and other comfort to use the same as residential houses is being infringed. The petitioners Nos.1 to 4 have purchased residential house on Plot No,163-J for the residence purpose whereas petitioner No,5 has purchased Plot No,1644 and has constructed a residential building thereon. Their right of ingress and egress to their houses is being disturbed. The Pardahobserving ladies are facing difficulties due to parking of vehicle just in front of their houses and their rights for enjoyment of their properties have been diminished inasmuch as the noise created by the students of the school. The learned counsel has further argued that conversion of the plot in question from residential purpose to amenity purpose is illegal, void and without any lawful authority. He has, therefore, prayed that direction be issued to respondent No,1 to close down the school immediately and that no building plan in respect of Plots Nos.163-K, 160-G and 164-H, Block 3, PECHS, Karachi be approved except for residential purpose.
5. ' Ms. Sana Minhas learned counsel for the private respondents in C.P. No,632 of 1993 has argued that under the terms and conditions of the lease there is no absolute bar that a plot meant for residential purpose shall not be used for any other purpose in any case. In fact according to clause
(vii) of the Lease Deed express consent in writing of the lessor is required to use a residential plot for any. Other purpose and that in the instant case lessor has granted such express consent in writing and conversion of the plot in question from residential to amenity with permission to use the same for educational purpose has been legally and validly granted by the competent Authority. She has referred to the "no objection" granted by the Government of Pakistan, Works Division in respect of Plots Nos.163-K, 160-G and 164-H, Block No,3, PECHS, Karachi, for conversion from residential to amenity plots. The learned counsel has further referred to the permission granted by the Administrator of PECHS, Karachi dated 23-8-1992 in pursuance to the no-objection from the Government of Pakistan. The learned counsel has also referred to the no-objection certificate from KBCA for the said purpose. The Government of Sindh Food and Cooperation Department have also conveyed the approval of the Government of Sindh for conversion of the said three residential plots into amenity plots. With reference to the counter-affidavit filed on behalf of the respondent No,1 it has been pointed that the petitioners have not come to the Court with clean hands as they wanted the society to purchase their properties at the price demanded by them which was very exorbitant. It was further contended that the petitioner while constructing their houses have themselves violated the Building Control Rules by raising construction on the compulsory open space and by using their premises partly for commercial purpose. It has also been contended that PECHS is no more a pure residential area as hundreds of non-residential premises are being used for commercial purpose. More than 25 schools, commercial Government/Semi-Government Offices are being run. Government Foundation Science College is situated right opposite to the premises of the petitioners. It has been contended that other alternate remedy is available to the petitioners so far the alleged nuisance or infringement of alleged right of privacy is concerned and the said grievance cannot be agitated through a Constitutional petition hence this petition is liable to be dismissed with costs. Mr. Tufail H. Ebrahim learned counsel for the respondent No,1 in C.P. No,D-615 of 1991 has adopted the arguments of Ms. Sana Minhas.
6. ' Syed Jamil Ahmed learned counsel for Karachi Building Control Authority and Mr. Muhammad Sarwar Khan learned Additional Advocate-General for Government of Sindh have also opposed the grant of the petitions. Syed Jamil Ahmed has filed a statement signed by Deputy Director (UD) of KBCA stating therein that there is no Zonal plan for PECHS, Karachi approved by KDA and that lay- out plan of PECHS was approved by the Ministry of Housing and Works, Islamabad. Learned counsel for KBCA further argued that there is no bar in conversion of residential plot into an amenity plot.
7. Mr. Sarwar Khan learned A.A.-G. Has argued that in view of the no-objection certificate for conversion of the plot from residential to amenity by the competent Authority/lessor, the petitioners have no case and the conversion cannot be termed to be illegal or violative of any law and rules.
8. ' After going through the record made available before us and after hearing the learned counsel for the parties, we find that the plot in dispute has been converted from residential to amenity plot for being used as school/educational institution validly and lawfully. Under clause (vii) of the Lease Deed a residential plot cannot be used for any other purpose unless such express permission is granted in writing by the lessor. We find that such necessary permission has been accorded by the lessor as well as KBCA. From the perusal of the record it also appears that a number of educational institutions/schools and colleges are functioning in the vicinity. Moreover, it has also come on record that it is a girls school hence the grievance of the petitioner that their privacy is being adversely affected and that and their Pardanasheen ladies are facing inconvenience appears to be devoid of any force. In view of the fact that necessary permission has been accorded for conversion of the plot in question from residential to amenity and school is being run in the larger interest of the persons residing the neighborhood, this petition appears to be without any substance and is liable to be dismissed. So far the infringement of the alleged rights of the privacy is concerned the petitioner will be free to seek private remedies according to law.
9. ' These are the reasons for our short order dated 31-10-2001 through which we had dismissed this petition after conclusion of the arguments of the learned counsel for the parties.