' MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide two civil revisions (Civil Revisions Nos. 420 and 430 of 2006), as these arise out of the single judgment/decree, dated 15-4- 2006 passed by the learned District Judge, Rawalpindi, whereby appeal filed by respondents 1 to 5 was accepted and their suit for permanent injunction was decreed by setting aside the judgment/decree, dated 2-12-2003 by the learned Civil Judge.
2. Succinctly, relevant facts are that respondents 1 to 5 (petitioners in Civil Revision No,430 of 2006) filed a suit for permanent injunction with the averments that they are owners in possession of their respective residential properties situated in Harley Street, Rawalpindi Cantt. Which is a residential area/housing scheme and the petitioners be permanently restrained from raising commercial building in form of a school over residential Plot No,16-B purchased by their predecessor-in-interest Mrs. Yawar Azhar Waheed. They further pleaded that plot so purchased was originally transferred by the Cantonment Board in favour of one Major Ishtiaq-ur-Rehman Khan vide registered sale- deed dated 8-1-1969 and in his sale-deed a clog on conversion of plot purchased by him was attached to the effect that it would not be converted or put to use for commercial purposes and will be constructed only for residential requirements. The original purchaser was assertedly not allowed to convert the residential nature of the plot purchased; to sub-divide or amalgamate the same with any adjoining property. This plot was then purchased by the predecessor of the petitioners namely Mrs. Yawar Azhar Waheed (now deceased) which measured 3 Kanals, 6 Marlas, 45 sq. Ft. And was transferred in her favour through a registered deed dated 13-2-2002. Site plan for construction of a school was sanctioned by the Cantonment Board on the basis of which construction work was started. Respondents 1 to 5 further narrated in their plaint that conversion of residential plot into commercial building was illegal and sanctioning of site plan for this purpose by Cantonment Board/respondent No,6 was violative of construction rules/Cantonments Act, 19241 They claimed that the proposed commercial construction was I violation of their rights of life and comfort, as they are owners in ossession of the houses adjacent to the plot of the petitioners or those are located in the surrounding vicinity, thus, running of school by the petitioners would cause environmental problems; noise/nuisance and of er difficulties for the inhabitants of the residential locality. Plaint of re pondents 1 to 5 went on to detail that calm atmosphere prevailing in th residential area of Harley Street would be spoiled by unauthorized/illegal commercial construction of the petitioners which should be don by them in the area earmarked for this purpose within the scheme in uestion. Traffic problems; congestion creating psychological, distress as also stressed, in case the petitioners are permitted to raise the propoed construction, covered by mischief o section 91, C.P.C, besides perso al injury to them.
3. Mrs. Yawar Azhar Wa Plot No,16-B, Harley Street, R No,1 in the suit, contested th wherein she averred that she ha purpose of construction of schoo which did not contain any clog and on production of this sale- eed, who was the original purchaser of walpindi and was arrayed as defendant same by filing her written statement purchased the plot in question for the building through a registered sale-deed on her right to raise such construction deed, the Cantonment Board not only sanctioned a mutation in her favour but also approved the site plan for construction of the proposed school building in the name of Spring Field Public School, on payment of requisite fee for sanctioning of commercial site plan. She also attempted to render support to her claim by pleading that almost 28 buildings in the Harley Street Housing Scheme were being used by the privately managed ublic schools and that the neighbouring owners of the houses had alrea y granted her no Objection Certificate for the propose construction. Th Cantonment Board was also impleaded as a party to the suit as defen ant No,2 who in its separate written statement maintained that the sit plan was duly sanctioned by it as there were about 40 premises of the arley Street which were being used for commercial purposes. Residen ial character of the scheme under discussion was said to have bee lost and allegations of nuisance at the hands of the petitioners were specifically denied. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the suit, after doing the needful, dismissed it vide his judgment/decree, dated 2-12-2003.
4. Respondents 1 to 5, being aggrieved of the decision of the trial Court, filed an appeal before the learned District Judge, which was accepted on 24-12-2003 and case was remanded to trial Court for fresh decision of the recasted issues, along with other suit for declaration filed by respondents 1 to 5. The remand order by the learned District Judge was set aside by this Court in Civil Revision No,102 of 2004 decided on 28-10-2004 and case was remitted to first Appellate Court for decision on merits. Appeal filed by respondents 1 to 5 against succeeded on 15-4-2006 with the findings, inter alia, that there was no restriction on the right of the petitioners to convert residential plot into commercial, as condition to this effect was against the law, but suit filed by respondents 1 to 5 was decreed. In the meanwhile, since the original owner of Plot No,16-B, Harley Street, Rawalpindi, namely Mrs. Yawar Azhar Waheed had died and petitioners who are her heirs/legal representatives being aggrieved of decree passed by the learned District Judge, filed Civil Revision No,420 of 2006, whereas respondents 1 to 5 being aggrieved of the part of the appellate judgment, expressing opinion that there is no clog on the right of the petitioners to use the plot in question for commercial purposes, filed Civil Revision No:430 of 2006. ,Since both the contestants are parties to revision petitions by each other, they have appeared in response to notices by this Court and were represented through their respective counsel, whereas Cantonment Board, Rawalpindi was represented through its legal Advisor.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Primarily, three questions hinge for determination by this Court and those are (i) whether Harley Street is a residential scheme or not; (ii) if it is a residential scheme then transferees/purchasers of its plots could raise commercial construction in form of school under a sanctioned site plan, inspite of a restriction imposed in this behalf and (iii) running of school would cause nuisance/personal injury to the residents of the vicinity/neighbourers. Khalid Hussain one of the plaintiffs (respondent 1) appeared as his own witness as P.W.2 and reiterated their claim in the plaint and categorically deposed that he is residing in House No,50, Lane No,4, Harley Street, Rawalpindi, along with his wife Mst. Nasira Khalid, and his co-plaintiffs also reside in the same locality in their respective houses which are situated in the residential housing scheme approved by the Cantonment Board. Late Mrs. Yawar Azhar Waheed, who was defendant No,1 appeared in the witness-box as D.W.1 and stated that she purchased Plot No,16-B, Harley Street from Col. Ishtiaq-ur- Rehman on 13-2-2002 and applied for sanction of site plan for construction of school which was duly approved, wherein parking place was also provided. She besides rendering support to her case put forth in the written statement, admitted that Harley Street was a housing scheme.
Respondents 1 to 5 also produced master plan of the scheme as Exh.P.3 and in view of this evidence there was hardly any room to urge that the area where plot purchased by the predecessor of the petitioners was located, was not a residential area and for this reason Mr. Mujeeb-ur-Rehman Kiani, Advocate, appearing on behalf of the revision petitioners in Civil Revision No,420 of 2006, addressed the Court with the assumption that plot of the petitioners is located in residential scheme which according to him, has lost its residential character. Taking up the second point which calls for determination by this Court regarding conversion of residential plot into commercial, there is no provision in this behalf in the Cantonment Act, 1924. Bylaws framed by the Government of Pakistan, Ministry of Defence vide Notification No,572/59, dated 12-6-1959 as amended by Ministry of Defence vide Notification 23/5/G/D5/C/65 have directly envisaged restriction on the subject. Bylaw No,27 placed a restriction on the Cantonment Board to sanction any site plan in violation of Town Planning Scheme approved in accordance with subsection (2) of section 181 of Cantonment Act, 1924. This bylaw, for convenience and ready reference, is reproduced as below:--- "27. No plan for a new building on (1) private lands in Cantonment or (ii) land outside Cantonment to which certain Chapter of g Cantonments Act, 1924 may have been extended .Under section 286 of the Cantonments Act, 1924 shall be sanctioned by the Board if it is not in accordance with the Town Planning Scheme approved in accordance with subsection (2) of section 181 of the Cantonments Act, 1924, and no plan shall be sanctioned on main roads mentioned in the Schedule annexed to these by-laws if the total area of the premises is less than four Kanals and on other roads less than 2 Kanals/1 Kanal as the case may be and the width of the street is less than 30 feet."
6. Another law which restricts conversion under discussion is contained in section 14 of the Cantonment Rent Restriction Act, 1963, according to which a residential building cannot be converted into commercial except with the permission in writing of the Rent Controller. This provision reads as under:- "14. Restriction on conversion of residential building into commercial building and vice versa.--- No person shall convert a residential building into a commercial building or vice versa, except with the permission in writing of the Controller."
7. Controversy regarding conversion of a residential plot/building situated within residential area by opening a school, had earlier been determined by superior judiciary of this country. In the case of Lahore Grammar School (Pvt.) Ltd. And another v. Mst. Hameeda Begum and another PLD 1996 Lah. 422 this Court while deciding the matter of issuance of temporary injunction held that opening of a school is a commercial activity and the urban development is always regulated by the law on the subject because otherwise the inhabitants of the towns would still be apparently living in jungle. In this case it was observed that no doubt the right of property is a recognized right but the same has always remained subject to reasonable restrictions imposed by law which should not be misunderstood so as to arm any citizen with a right to construct his property in whatever manner he likes and the conclusion drawn was that opening/establishing of school in residential area, does fall in definition of private nuisance and persons living in the immediate neighbourhood or even in the vicinity thereof, were entitled to enforce their right of quite enjoyment of their properties by seeking restraint against somebody or anybody intending to disturb the peace/tranquillity thereof.
This Court in another case of Prof. Doctor Asghar. Alla-ud-Din and 3 others v. Lahore Lyceum School, Multan through Principal and 2 others 1999 CLC 66 after scan of entire earlier case-law on the subject, found that opening of a private school in residential area amounted to nuisance for residents of the area and such conversion could not be done. Latest view of this Court remained the same, in the case of PLD 2007 Lah.
485. The consistent view taken by this Court was also supported by the Karachi jurisdiction of the High Court in the cases of Abdul Hafiz and another v. Muzaffar Karim PLD 1973 Kar. 253, Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631, Arif and another v. Jaffar Public School through Principal/ Administrator and 8 others 2002 M LD 1410 and Mst. Aqila Begum and another v. Pakistan Employees Cooperative Housing Society Ltd. And others PLD 2004 Kar.1.
8. The subject in hand appears to has been set at naught by the Honourable Supreme Court in the case of Khalid Saeed v. Shamim Rizvan and others 2003 SCM R 1505. In this case, residential property was being used as gymnasium, squash courts and swimming pool for general public which was part of residential area and it was graciously held by the apex Court that utilization of premises for a purpose other than residential would be inconsistent with the approved scheme or master plan hence not permissible. It was further mandated in this precedent case that a resident of a residential area could utilize his property as an office of his vocation after securing permission from the authority on fulfillment of conditions prescribed by the regulations applicable.
9. Stance of the learned counsel for the petitioners in Civil Revision No,420 of 2006 that since all the above referred judgments were delivered in the cases in which some building regulations/rules controlled the residential areas which were not promulgated/available in the Cantonment area of Rawalpindi, those are not applicable to instant case, has not impressed me to ignore the consistent ratio of those judgments that unrestricted conversion if permitted would result in anarchy/unrest in the Society. No doubt, most of the precedent cases, discussed above, relate to residential buildings Situated in the schemes introduced by Lahore Development Authority where Building Regulations of 1984 were applicable but according to my estimations such restrictions were also applicable within the Municipal and Cantonment areas of Rawalpindi because bylaw 27, above reproduced, place a restriction on the Cantonment Board to approve any site plan in violation of an approved housing scheme. It could not be denied in light of master plan Exh.P.3 of the Officers Housing Scheme at Harley Street, Rawalpindi, that it was approved in accordance with section 181(2) of the Cantonments Act, 1924. 1 also have no hesitation to place reliance on section 14 of the Cantonments Rent Restriction Act, 1963, in this behalf. Earlier to parting with the discussion of question under determination, I would like to refer again to a judgment by this Court delivered on 27-8-2007 in Writ Petition No,1709 of 2007 in a case relating to cantonment area of Rawalpindi. In this case City grammar school was being run at 195, 141 Afshan Colony, Rawalpindi, and this Court while concluding the lis observed as under:-- "In this view of the matter, I am of the view that the school in question has illegally been opened in the residential area by the petitioner. The petitioner has been rightly asked to stop the nuisance by issuing the impugned notice on behalf of Cantonment Board. This being so, this petition fails and is dismissed in limine."
'All this leads me to conclude that a residential plot/building could not be converted into commercial without observing legal formalities in this behalf or getting permission from the concerned Authorities/Courts and merely manoeuvring sanctioning of mutation or site plan, in violation of Bylaws directly applicable on the subject, would not inject legality to any unauthorized action.
10. The other aspect of the case relating to creating of nuisance by opening of school in a residential area, it not only causes a public nuisance but also brings a personal injury in form of discomfort to the residents of the locality. If building of the school in question is allowed to be constructed and the school is permitted to commence in a residential approved scheme, it would undeniably make the area noisy; would create problem of congestion for pedestalains and public/private transport and would invite visit of street vendors which will certainly disturb the peaceful living. Another factor which would heavily weigh against setting up of school in question, is that value of the properties due to congestion would depreciate, without commission or omission of any act on part of the owners, occupiers or users of the private property in the vicinity, resulting also in private nuisance to respondents 1 to 5 amongst others, hence the complained action cannot be permitted at the cost of violation of the laws above discussed. In this context, the Honourable Supreme Court in the case of Islam-ud-Din and others v. Ghulam Muhammad and others PLD 2004 SC 633 held that an industrial establishment running in residential-cum- commercial area, under licence was dangerous/injutious for inhabitants of the locality and could not be allowed to continue being public and private nuisance. In another case from Karachi jurisdiction w,e,f, Abdul Hafiz and other v. Muzaffar Karim PLD 1973 Kar. 253 it was observed that Nuisance is incapable of exact definition but for the purposes of law of tort, it may be described as unlawful interference with a person's use and enjoyment of property or of some right over or in connection with it. The essence of nuisance, in this precedent case was held to be a condition or activity which unduly interferes with the use or enjoyment of property.
'Now I take up the submission of the learned counsel for the heirs of Mst. Yawar Azhar Waheed that sale-deed in their favour dated 13-2-2002 wiped out the clog contained in the sale-deed Exh.P.1 in favour of their vendor Col. Ishtiaq-ur-Rehman, hence they were entitled to raise the school building without any restriction. Learned District Judge while dealing with this aspect of the case, relied on the provisions of sections 10 and 11 of the Transfer of Property Act, 1882 and opined that condition of conversion of residential plot into commercial is void and not binding upon vendee (Mst. Yawar Azhar Waheed) but I have solid reasons to differ with this finding. Firstly, for the reason that Sale- deed Exh.P.1 in favour of Col. Ishtiaq-ur-Rehman was executed on 8-1-1969 by the Cantonment Board transferring Plot No,16-B, Harley Street Housing Scheme with a condition that it would not be used for commercial purpose and be subjected only to use for residential requirements. The vendee after lapse of about more than three decades executed sale-deed on 13-2-2002 in favour of the deceased lady, himself waving the restriction placed on his user, without getting any kind of sanction from the Cantonment Board. A private vendee was not in a position to change the bylaws or to remove the clog on his user himself. Shelter in this behalf also could not be taken under the provisions of sections 10 and 11 of the Transfer of Property Act, 1882, as those only related to conditions/limitations absolutely restraining the transferee from parting with or disposing of his interest in the property w,e,f, use of plot for residential purposes whereas no such restriction was imposed on the rights of the deceased lady and in this manner these provisions were not attracted in this case. Above all, Cola Ishtiaq-ur-Rehman had accepted allotment of residential plot and the sale-deed in his favour contained his right to enjoy the property as residential hence the clog created regarding conversion of use of the suit plot, could not have been adjudged by invocation of provisions relied. Vendor of Mst. Yawar Azhar Waheed legally could transfer only the interest held by him in Plot No,16-B and none else.. He could not license his vendee to utilize the plot for any her purpose for which he himself was under disability. In view of this analysis I hold that restriction contained in Exh.P.1. Continued and transferee of sale-deed dated 13-2-2002 would abide by those.
Suffice it to hold that mere sanctioning of mutation or approval of site plan in violation of Bylaw No,27 above reproduced, did not create any right contrary to the covenant Exh.P.1. Findings by the learned District Judge in this behalf being unlawful and unfounded are accordingly set aside.
Earlier to close of my judgment, I wish to comment about the assertive claim of the learned counsel for the petitioner that a considerable number of other schools are being run in the Harlay Street which has lost its residential character, thus, suit of respondents Nos.1 to 5 may also be dismissed.
In this respect I refer to the mandate given by the Honourable Supreme Court in the judgment of Khalid Saeed (supra) to the following effect:- "The petitioner cannot justify his illegal venture by saying that similar other illegal activities are going on. If this plea is accepted the result would be disastrous and dacoits/thieves would justify their actions simply by saying that other dacoits/thieves having committed similar acts have not been punished."
' The learned District Judge in his impugned judgment has rightly remarked that two or even numerous wrongs, cannot make one right. The other schools allegedly being run in the housing scheme in question were undisputedly set up in residential houses, against whom the Cantonment Board can proceed in accordance with law, as those were not established after lawful conversion of residential properties to commercial by the competent authority and I am of the considered view that those do not justify the complained action of the petitioners. In light of above discussion; scan of record and impugned judgments revealed that controversy was correctly put to rest by the Court of appeal except the findings already reversed and no other illegality/irregularity was committed in terms of section 115, C.P.C.
11. For the reasons noted above, no case for interference in Civil Revision No,420 of 2006 was made out and consequently the same is dismissed, whereas Civil Revision No,430 of 2006 is accepted and findings of the Appellate Court touching clog/restriction on use of Plot No,16-B, Harley Street Scheme, Rawalpindi are reversed, Parties are, however, left to bear their own costs.