SABIHUDDIN AHMED, J. --- Since all parties were duly represented and had placed their respective contentions before the Court we decided, with the consent of learned counsel to admit and finally dispose of this petition.
2. The facts are not seriously in dispute. The petitioner is the owner of a plot No. D-5, Block .10/A, Main Rashid Minhas Road, Gulshan-e-Iqbal, Karachi, where he is operating a marriage lawn. The respondents Nos. 1 and 5 respectively owned adjacent plots Nos. D-3 and D-4 respectively where the same business is carried on. Rashid Minhas Road was one of the six roads, which were declared commercial and where commercialization of plots was allowed in terms of the Sindh Government Notification dated 20.07.1998. It is further alleged that marriage halls are also being run by the respondents on plots Nos. C-5 and C-6 which are residential plots located behind plots Nos. D-3 and D-4. According to the petitioner these plots are purely residential having their respective entrance from a road other than Rashid Minhas Road. However, the respondent No. 1 for the, purpose of using these plots illegally for commercial activity has carved out a passage from plot No. D-4, such illegal use of the two residential plots is causing problems of traffic congestion and inconvenience to the petitioner's guests using the marriage hall on plot No. D-5. It is also alleged that the title of the respondent No 1 with respect to plot No. C-6 is also disputed and it ought to be sealed till the question of title is decided.
3. The respondent No. 1 in 'his counter affidavit has inter alia objected to the maintainability of the petition contending that the respondent is not statutory functionary to whom a direction under Article 199 of the Constitution can be issued.. It is further alleged that the petitioner himself is using residential plot for a commercial purpose and cannot, object to the same use on the part of the respondents Nos. 1 and 5. The respondent No..5 and filed a counter-affidavit contending that she had applied for commercialization of plots owned by her way back in 1999, but had not received any response.
4. We have heard Mr. Ansar Hussain for the petitioner and Mr. Sohail Muzaffar for respondents Nos. 1 and 5 as well as M/s. Manzsoor Ahmed; Shahid Jameeluddin and Ashraf Ali Butt for respondents Nos. 2 to 4 respectively.
5. At the outset, however, we need to make it explicitly clear that the Constitutional jurisdiction of this Court in such matter can only be invoked in public interest. The petitioner must show that he has a bona fide interest in vindicating the rule of law rather than a purely personal motive. Possibly he could have legitimately asserted that being a resident of the area he was interested in ensuring that the peace and quiet of the neighbourhood was not distrubed through illegal commercial activity. Nevertheless since he himself is admittedly carrying on the same kind of commercial activity on an adjacent residential plot, he can hardly raise such a plea. On the other hand if his grievance is confined, to his personal suffering same loss owing to the activities of his competitors the only remedy available to him is -under private. Law for seeking injunction or damages through a civil suit. Likewise disputed questions of title can only be resolved through normal civil suits.
6. Nevertheless, when all relevant facts were available on record and the matter was one of the public interest; we were somewhat doubtful whether it would be right to throw the matter out merely for lack of bona fides of the petitioner. Therefore, we decided to examine the legal aspects of the case. Apparently all the plots involved in the controversy initially fell within a Zonal Plan Scheme for residential purposes Which has to be notified by the Government in terms of Article 40(3) of the erstwhile K.D.A. Order. It may be seen that while the power to notify such scheme under Article 40(3) rests with the Government. The power to grant permission to an individual plot holder to use a plot for a purpose other than the one laid down in the scheme was only available with the K.D.A. The Notification dated 20.07.1998 issued by the Government purporting inter alia to.Commercialize Rashid Minhas Road must, therefore, be treated as an amendment in the Zonal Plan Scheme. Consequently plots Nos. D-3 and D-4 could only be used for a commercial purpose and no further permission was required.
7. As regards plots Nos. C-5 and C-6 however, the position would be somewhat different, these plots are located beyond the boundaries of the area to be commercialized under Notification dated 20.07.1998 as they continued to remain part of a residential scheme. Therefore, under Article 40(4) if a person desired to use it for any other purpose he could apply to the Authority for permission to do so. Such permission could be granted after a public hearing and notice to all affected persons. Indeed an order of the Authority could be questioned in revision before the Provincial Government, but there appears to be no power, vested in the Provincial Government to impose a prior restraint forbidding grant of any permission.
8. The respondent No. 5 has contended that the applied for permission in 1999 but has not received any response. We have accordingly ordered that the application be decided within three months in respect of these two plots.
9. The above are our reasons for the short order dated 27.1.2004.