UMAR ATA BANDIAL, J.--- The petitioner opened a school in the year 1987 in a residential plot bearing No. 19E, Defence Housing Authority (DHA), Lahore. Learned counsel for the petitioner submits that the said property is owned by the petitioner who was encouraged to set up the school by the respondent DHA, which at the relevant time was a cooperative society registered under the Cooperative Society Act, 1925. The petitioner claims to have invested a large sum of money to run the school which was not objected by the respondent society and that went on for a period of 2 years. In 1989 the petitioner received a notice from the DHA threatening expulsion from its membership.
2. A dispute between the parties followed on the question of alleged wrongful use of petitioner's residential property for a commercial purpose. Ultimately, in 1991 arbitration was commenced between the parties under Section 54 of the Cooperative Societies Act,- 1925. Resulting in a majority award dated 30.5.1991. This award gave conditional relief to the petitioner and was appealed before the Joint Registrar by the respondent society. The appeal was decided on 27.2.1992 whereby the petitioner was given five years to run his school in the existing residential premises during which he could make alternate arrangements on his own for relocating his school.
The said decision was again challenged before the Secretary Cooperatives by both the parties.
Vide order dated 15.9.1994 the Secretary Cooperatives modified the appellate order by reducing the period granted to the petitioner from 5 years to 3 years for user of his residential premises for the purpose of a school.
3. In order to protect his school the petitioner thereafter filed this petition in which ex-parte ad interim order was granted on 27.2.1995. The matter has since been pending in this Court for the last 10 years. Ultimately it was argued at length by the learned counsel now. The points raised by the learned counsel for the . Petitioner are as follows:---
(a) the respondent DHA has permitted other residential properties to, be used for the purpose of objecting to similar use of the petitioner's property: The case of .Alma Junior School has been specifically mentioned in this behalf;
(b) the petitioner invested a vast amount of money to establish his school in respect of which the respondent DHA had a relevant time had raised no objection. Therefore, the respondent DHA is estopped from removing the petitioner's school;
(c) by-laws of the respondent society do not prohibit use of residential house as a school; and
(d) that the petitioner has paid property tax on his house as a commercial and not residential property which qualifies its use as such:
4. Learned counsel for the respondent has rebutted the foregoing Contentions on the following grounds:-
(i) The Defence Housing Authority Order, 2002 was promulgated on 19.9.2002. Article 18 thereof prohibits the use of residential property for commercial purpose. The right, if any claimed by the petitioner stands defeated by change of law.
(ii) The construction bye-laws of the respondent DHA in particular, Bye-laws No. 3-Chapter No. 2, prohibits the conversion of a property to a use/purpose other than for which it is allotted. The petitioner's house was allotted for residential purpose and cannot be utilized for any other purpose.
The petitioner challenged the impugned .Order dated 15.9.1994 by a delay of 5 months whereof the petition suffers from laches and acquiescence.
(iv) The petition purports to convert the present proceedings into an appeal whereas no such jurisdiction vests in the Court nor any ground of lack of jurisdiction or illegality has been made out consequently, the petition is not maintainable.
5. The essential facts of the case are agreed by the two sides. The crucial question in the case is whether the petitioner has a. Right to convert residential property to commercial use, namely, as a school, and if so, whether the respondent DHA, has any grounds to object such user. It may be borne in mind that almost 17 years have elapsed since the first notice for expulsion was served on the petitioner. During this time the petitioner has used his residential property for the commercial purpose of a school except ultimately when ne was stopped from doing so- after respondent DHA was converted from a society into an authority. It is also settled that the construction bye-laws of the DHA do prohibit the use of a property for purpose other than for which it is allotted. Yet in the present case the DHA did initially permit the petitioner to use his residential property for the purpose of school. The DHA was converted from a society into an authority by the DHA Order, 2002.
By that legislation a statutory prohibition against the use of residential property for any other purposes has come into the field.
6. In the background of the foregoing change in the law, the petitioner's case is actually seeking relief that is against the statute and is therefore illegal. Insofar as plea of promissory estoppel is concerned, it cannot validate an illegal act for the future, at best the past commercial user by the petitioner of his house from 1989 until 2002 without authorization from the DHA can be safeguarded against penal action. In any event, such constitutes sufficient accommodation to the petitioner, which goes far beyond the term fixed by either of the impugned orders. Accordingly, the main contentions of the petitioner have lost force by efflux of time.
7. Be that as it may, two points of significance raised by the learned counsel for the petitioner may have present application; firstly that the DHA is discriminating the petitioner by allowing other schools to operate in residential premises. Reference was made to the case of Alma Junior School: Accordingly, on Court's order the respondent DHA has produced a certificate dated 19.1.2007 which is in the following terms:--- "It is informed that no other residential building/plot is being used for running a school. The plot (comprising 5 kanal of land) of. Alma Junior School has been specifically allocated and allotted for setting up a school. It is not a residential plot whereas plot No. E19 is a. Residential plot and cannot.
Be used for any other purpose except for residential purposes."
It is an established fact that the largest size of allotted residential plot in the DHA measures 2 kanals whereas in the above case a plot of 5 kanals land has been allocated and allotted for the purpose Of setting up a school. Clearly, such a large plot cannot result from the conversion of a residential plot but indicates an allotment for the specified purpose. The facts of the Alma Junior School ore, therefore altogether distinguishable and do not amount to . Discrimination as to conversion of user. Learned counsel for the petitioner now -explains that the said school was allocated and allotted its plot on the application by its management whereas a similar application by the petitioner was not acceded. That is a completely different point from the question now in issue. In fact it concedes that the objection of discrimination urged by the learned counsel for the petitioner has no weight.
8 The second point of some relevance is that the respondent DHA is estopped from preventing the petitioner from using his property for the purpose of a school, because it encouraged the petitioner in the first place to set up a school to run the same for several years before issuing the impugned expulsion notice. The petitioner has claimed protection of the Court for the investments made by him. A perusal of the record .Shows that the learned lower forums granted the petitioner 5 years to utilize and profit from the investment by him in the establishment of a school. That period expired in 1997, however, on account of the present proceedings the said enjoyment of the petitioner continued until 7.11.2002. The grace period allowed to the petitioner by the lower forums is sufficient to cater for any loss that may occur for petitioner. To relocate. The property in dispute remains in the 'ownership of the petitioner and the impugned action does not forfeit any of his proprietary rights. Only the use of his property is required to be made complaint with the bye-laws of the DHA and provisions of the DHA Order, 2002. Estoppel pleaded by the learned counsel for the petitioner does not create a legal bar where the impugned action is consistent with the proprietary rights of the petitioner, in furtherance of the intent of the bye-laws of the authority in vogue from inception, and inconvenience, if any, to the petitioner having been duly compensated. Indeed, the Change in law on account of Article 18 of the DHA Order also constitutes an answer to alleged estoppel against future action being taken by the authority.
9. In the circumstances, there is no merit in the petition . But it is observed that for period of enjoyment that the petitioner had during the course of . The .Present proceedings, the respondent authority shall not take any action against the petitioner in terms of burdening him with costs or otherwise causing embarrassm ent or distress to him. With no order as to costs: .