' 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 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 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.
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, 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 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. In reply, learned counsel for the defendants Nos.1 to 3 relied on Zaheer Ahmed Chaudhry v City District Government Karachi and others 2006 YLR 2537, where a learned Division Bench of this Court was referred to a number of authorities, including the first two of the three Supreme Court decisions cited above, and it was observed as follows:--- "The matters pertaining to Building Control and Town Planning are entirely distinct and separate therefore the scope of Sindh Buildings Control Ordinance, 1979 is confined to the approval of Buildings Plans, demolition of the buildings, quality of the buildings, supervision of the construction of the buildings, matters pertaining to the safe and sound construction, structural design of any building, grant of license to architects, building designer, structural engineers, town planners builders and developers and the ancillary and incidental thereto and is not extended to the matters pertaining to the town planning and does not include the land use classification, density standards, construction or roads and streets development plans, zoning regulation etc." (pg. 2570)
' The learned Division Bench however, also took cognizance of the fact that the Supreme Court had held that the building and town planning regulations had statutory force, and went on to observe as follows:--- "We have carefully considered the contentions raised by the learned Advocate for the petitioners and the learned Advocate for respondents who have submitted that the honourable Supreme Court has already held that the Karachi Building and Town Planning Regulations,. 1979 have the statutory force and the Karachi Building and Town Planning Regulations, 2002 have merely replaced the earlier Regulations and therefore no scope is left for this Court to arrive at any conclusion to the contrary. The contention raised by the learned Advocate for respondents are not without substance as we are bound by the decisions of the honourable Supreme Court.... It is advisable that if a law is enacted particularly for dealing with the specific subject, the matters relating to such subject should be dealt with under a separate statute but if any matter or subject connected therewith, is dealt with by amendment in another special, law it shall not become invalid, so long it is within the competence of the legislature under the Constitution. If something could be done in a particular manner but has been done in a manner which is not advisable, it shall not render the law, as invalid. Subsection (3) of section 21-A enacted by provincial legislature of Sindh, specifically speaks of Building Control and Town Planning and therefore if the authority has framed a composite regulation known as Karachi Building and Town Planning Regulations, 2002, then it would not become invalid merely because the Sindh Buildings Control Ordinance, 1979 deals predominantly with the matters pertaining to the Building Control. The Regulations have been framed in exercise of the powers conferred by section 21-A of the Sindh Buildings Control Ordinance, 1979 and admittedly subsection (3) of section 21-A specifically authorizes the authority under the Ordinance to frame the Building Control and Town Planning Regulation. For the purpose of validity and virus of delegated/subordinate legislation in the form of rules, regulations or notification it is sufficient if the particular section under which the recourse to delegated/subordinate legislation has been resorted to empowers to do so. We are therefore of the considered opinion that the honourable Supreme Court while holding that the Karachi Building and Town Planning Regulations, 1979 has the statutory force must have kept this principle of law in view and consequently it is held that the Karachi Building and Town Planning Regulations, 1979 and the Karachi Building and Town Planning Regulations, 2002 which has replaced the earlier regulations have been framed competently in exercise of the authority under section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 and is therefore intra vires, legal, valid and has statutory force.
' At this juncture we would like to observe that although the matters pertaining to the Building Control and Town Planning are not same and on all fours to each other, but the matters are so intimately and intrinsically connected and interwoven, that in almost all the laws on the subject enacted from time to time... Contain the provisions pertaining to the Building Control as well as development scheme and the town planning.... As already observed they are of course separate and distinct but they are closely related and inter- dependant as well as co-existing, therefore, if a law enacted by the provincial legislature in the form of section 21-A(3) of the Sindh Buildings Control Ordinance, 1979 has authorized the authority under the Ordinance to frame the Building and Town Planning Regulations and under the said authority Regulations covering both the subjects have been framed in one piece of subordinate legislation, no objection can be raised to its validity.... Thus if such matters pertaining to building control could be regulated through a legislation exclusively dealing with Town Planning, no objection can be taken if the regulations pertaining to town planning are framed in pursuance of a provision inserted by legislature in the Sindh Buildings Control Ordinance, 1979 which predominantly deals with the matters pertaining to building control." (pp. 2570-72).
' In my respectful view, on account of the foregoing state of the authorities, the fact that the school is being run on residential properties is certainly an important and relevant factor that has to be taken into consideration while considering an application for interim injunctive relief, but that fact is not decisive and determinative in and of itself for purposes of a suit where the basic grievance is that the operation of the school amounts to a nuisance.
12. As is clear from the foregoing, in my view, the plaintiffs have been able to establish a prima facie case that the running of the school on the subject properties constitutes a nuisance. They are being materially discomforted in the enjoyment of their properties and this happens on a F daily basis at least during school term, which obviously comprises of the major portion of each year, In such a case, in the normal course the balance of convenience and the question of irreparable loss and injury would tend to be regarded as lying in favour of the plaintiffs and against the defendants.
However, injunctive relief is equitable relief, and it is at the discretion of the court. Even if all the three ingredients are found to lie in favour of the plaintiff, interim relief may yet be withheld in appropriate circumstances. This brings me to the last point that was argued by learned counsel for the defendants Nos.1 to 3, namely that the defendants were performing an important ciyic duty, that of imparting education, and that it was in the larger public interest that injunctive relief be refused. In this regard, learned counsel for defendants referred to the decision of the Hon'ble Supreme Court in the Abdul Razak case (supra) and also to A. Razzak Adamjee and another v.
Datari Construction Company (Pvt.) Ltd. 2005 SCMR 142. However, in my respectful view, these decisions do not support, and are not directly relevant for, the submissions of learned counsel in this regard. Learned counsel also relied on Mst. Jamila v. Yadgar Service Station and others 2009 YLR 2018 (SHC; SB). However, the facts of that case were quite different. The case did not relate to a school, and (as observed by the learned single Judge at p. 2024) the commissioner's report confirmed that the property was located in Saddar, "which is the busiest area in the city where the traffic noise is much more than the noise of any generator or CNG facilities". Learned counsel for the defendants also referred to Shaikh Muhammad Nasim and others v. Al-Murtaza Society and others 2003 CLC 627 (SHC; DB) and M Zaheerul Hasan v. Lahore Grammar School (Pvt.) Limited and others (C.P. No,D-2621/2003, order dated 12-8-2003, unreported). In both of these decisions it was noted that there were a number of other educational institutions operating in the relevant locality.
In the reported decision, it was noted that the plot in question had already been converted from the residential category to an amenity plot for being used as a school. In the unreported decision, it was observed in passing that mere "inconvenience experienced by some neighbours possibly for about an hour in the morning and an hour in the afternoon cannot outweigh the larger public interest in making education available near the houses for children". It is to be noted that both of these decisions were in petitions filed under Article 199 of the Constitution, and in both it was expressly noted that the petitioners could pursue their private remedies against the defendants, if so advised. In other words, in both cases, the grievances of the petitioners were that the statutory authorities had (as contended by them) failed to act in the discharge of their statutory duties.
Therefore, in my respectful view, the observations relied on are not directly applicable to the case at hand, where private law remedies are being sought by the plaintiffs.
13. Notwithstanding the foregoing, the point raised is of considerable importance and requires close attention. The issues raised by means of the present suit are by no means new, as attested inter alia by the number of authorities and earlier decisions cited by learned counsel for both sides.
It is a well-known fact that on account of the mushroom growth in population, there is a dire need for providing educational institutions at all levels, and this is a problem not just in Karachi but is a burning issue in all parts of the country. It is equally well-known that town planning efforts by the concerned authorities have lagged far behind this pressing need and it is perhaps on account of this mismatch that schools have been, and continue to be, opened in residential areas, where they are being run on residential properties. There is, and it would be futile to pretend otherwise, a huge demand for education and this demand must be met one way or another. Arguably, the issue at hand is essentially of a social nature, which society must address, ideally through appropriate legislative and/or administrative measures, and it is only because the instrumentalities of the State have so far been unable to provide an adequate response that the problem keeps getting converted into legal disputes, which then come before the courts in various forms, of which the present suit is but a typical example. Thus, the question how the competing (even clashing) interests of individual property holders on the one hand, and the public interest on the other, are to be balanced becomes a legal issue, which has to be resolved by the court. It is to be noted that the question` here is not of the interests, if any, of the owners or operators of the educational institutions. Rather, it is the public interest, which manifests itself in the shape of the school children or other students, which must be kept in mind. How then, if at all, and to what extent, does the law of nuisance interact with the issue of public interest? The question can be restated as follows: are there any circumstances in which it would be proper for the court, in the larger public interest, to withhold interim injunctive relief notwithstanding that the plaintiff has been able to make out a case for such relief on account of nuisance?
14. In a leading English authority, Shelfer v. City of London Electric Lighting Company [1895] 1 Ch 287, the Court of Appeal observed as follows:--- "Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g. a gas or water company or a sewer authority) ever been considered a sufficient reason for refusing to protect by injunction an individual whose rights are being persistently infringed." (p. 316)
' Thus, individual rights were regarded as trumping any public interest that sought to outweigh those rights. But those were Victorian times, when (at least in England) property rights were regarded as sacrosanct. Many decades later, in Miller v. Jackson [1977] 3 All ER 338, the Court of Appeal was confronted, in the context of nuisance, with the issue of balancing private rights, against the public interest. Lord Denning MR characteristically stated as follows:-- "There is a contest here between the interest of the public at large and the interest of a private individual. The public interest lies in protecting the environment by preserving our playing fields....
The private interest lies in securing the privacy of his home and garden without intrusion or interference by anyone... As between their conflicting interests I am of opinion that the public interest should prevail over the private interest." (pg. 345)
' However, a subsequent Court of Appeal, in Kennawey v. Tounsin [1980] 3 All ER 329, refused to follow Miller v. Jackson on the ground that it was not consistent with what had been held in Shelfer's case (see at pg. 333b). A leading treatise on the law of torts, Clerk and Lindsell on .Torts (18th ed., 2000), after considering the above cases, suggested as follows:--- ".... It is submitted that the fact that the defendant's activity represents a public interest of a valuable social or economic kind should not confer on him a licence to commit what would otherwise be a tort (unless he can show statutory authority). But since the question whether a certain activity and interference amounts to a nuisance necessarily involves the balancing of competing interests, it seems desirable and even essential to take the nature of those interests fully into account, and it would appear that this was what Lord Denning was doing in his assessm ent. Public interest therefore is not in itself a defence, but a factor in assessing reasonableness of user." (para 19-72)
' In my view, the foregoing extract from Clerk and Lindsell represents the better view. The court can and ought, in appropriate circumstances, to consider and balance the competing claims of individual rights on the one hand and the public interest on the other when it is claimed by the plaintiff that the defendant has committed a nuisance. How is this exercise to be carried out in a case such as the present? The case-law relied on by learned counsel for the plaintiff, cited at para 7 supra, clearly establishes that where the school has not yet opened its doors, or has only just commenced operations, interim injunctive relief will be granted if the plaintiff is able to make out a case for such relief. Thus, in such a situation, the individual rights of the property holders (i.e., the residential occupiers of neighbouring properties) will outweigh any question of the public interest.
The reason could be that in such a situation, the public interest is at best inchoate; it has not yet crystallized. As noted above, the public interest here manifests itself in the shape of the students.
Since there are no students,' or such students have only just embarked on their educational activities in the school in question, the public interest is either not engaged at all, or is, at most, barely in issue. The individual rights therefore prevail, and the injunction issues.
15. What however, of the situation where the school (or other educational institution) has been in operation for some time, perhaps, as appears to be the case at hand, for several years? In my view, this situation is different from the one discussed in the previous para, and in the cases cited by learned counsel for the plaintiffs. In a situation where the school has been operational for some time, the public interest is more fully engaged. Many, perhaps most, of the students will have been attending the school for a number of yeaRs, They (and their families) would have settled into a well-established routine of education. To suddenly disturb that routine, and uproot the students, whose numbers may run into many hundreds, may well have a significant and disruptive impact on their education. It may not even be immediately possible for such a large number of students to be absorbed in other institutions. Furthermore, if the school in question is a good one, the students may well be forced to obtain admission in institutions that are not of the same standard. In my view therefore, in a situation like the one at hand the court must carefully consider and weigh the question of the public interest even if it concludes that the plaintiff has otherwise made out a case for interim injunctive relief. The factors that could go into such a consideration would include (but not be limited to) the number of years the school has been in operation, the number of students being educated there, the school timings, whether it operates on one or more shifts. And the classes offered at the school (is it, e.g., a college, or a high school, etc.). It is to be noted that many of the factors can operate both ways, and must therefore be weighed accordingly. For example, the greater the number of students enrolled, the greater the public interest, but also (other things being equal) the greater the nuisance. Likewise, if the school operates more than one shift, then the greater would be the number of students receiving an education, but the nuisance caused by the school activities is also greater. It is however, to be emphasized that each case must be decided in its own facts and circumstances, after carefully considering and giving due weight to all the relevant factoRs, Merely because the public interest is engaged would not, in and of itself, be sufficient to withhold interim relief, if otherwise such a case is made out. It may well be that in a particular case, even when the public interest is put in the balance, the matter still tilts in favour of the plaintiff.
16. When the facts and circumstances of the present case are measured by the foregoing standard, it is to be noted that a school (and indeed, the school) has been running on the subject properties for a number of yeaRs, There are a large number of children being educated at the school, the number running into several hundreds. A large number of students have therefore become settled in their education at the school. The school apparently only goes up to the sixth class. One effect of this would probably be that the nuisance caused by traffic and other such congestion would tend to peak and dissipate relatively swiftly. This would be so at least in part because the students are young children, and their parents or guardians would be keen to ensure not only that they arrive at school in time, but are also picked up as soon as school time is over.
This situation may be contrasted with, e.g., a college, which typically has much longer hours of operation, and where the students, being older, tend to "hang out for longer at the premises.
17. In my view, when all of the foregoing factors are taken into consideration, the facts and circumstances of the present case are such that, in the end, the larger public interest must be regarded as outweighing the individual rights of the plaintiffs. Accordingly, I conclude that this would be an appropriate case in which the Court ought, in its discretion, to withhold the grant of interim injunctive relief. Of course, the suit itself will be decided strictly on its own merits, and in terms of the evidence led by the parties, and it is only on that basis that the question of any final relief (whether by way of damages or an injunction) to which the plaintiffs may be found entitled will be determined. The present applications for interim relief must however, in the end, fail and are therefore hereby dismissed. Accordingly, any ad interim orders made earlier also stand recalled and vacated.