' MUSHIR ALAM, C.J.--- Petitioner has brought this public interest petition to impugn the conversion and use of residential property, bearing residential Bungalow No,36-G, Block-6, P.E.C.H.S., Karachi measuring 2000 square yards, which is being used as office by the FIA, the respondent No,5 herein.
2. It is urged that such use of the Residential property for office purposes by the FIA runs contrary not only to the terms and conditions of the lease, which is purely residential but also in violation of the Sindh Building Control Ordinance, 1979 and Karachi Building and Town Planning Regulations, 2002.
3. It is stated that immediately when such conversion of the subject property was noticed, attention of the Regulatory Authority i,e, Karachi Building Control Authority was drawn through various notices and reminders, including dated August 31st, 2009 and September 5, 2009. Consequently, KBCA issued a notice dated 14th September, 2009 calling upon the owners to restrain from raising unauthorized construction on compulsory open space on rear side and demolish the same within 24 hours but no further action was taken.. The P.E.C.H.S. Also has failed to discharge its duty with regard to establishment of the FIA office as reflected from their report dated 20th November, 2009.
4. It is urged by petitioner's counsel that the entire locality is residential, lease of the plots contains restrictive covenants, binding the owners not to use the premises other than for residential purpose, which restrictive covenant runs with, the land binding not only on the owners and such restrictive covenant are for the benefits of all the neighbours and resident of the locality and give them rights to seek enforcement.
3.(sic) Mr. Ishaque, learned counsel for the respondents No,5 the FIA and 6 the owner of subject property contends that the subject premises was acquired on rent by the National Bank of Pakistan who have accommodated the FIA as they are looking after the logistics of the FIA. TheTenancy Agreement placed on record shows that the National Bank of Pakistan has acquired the subject premises which comprises "double storey house, constructed on Plot measuring 2000 square yards." It also stipulates "the Tenant is ready and willing to acquire, take peaceful tenantable possession thereof and become the real lawful tenant of the Landlord on terms and conditions hereinafter appearing." It was further contended that since various residential properties are being used for commercial purpose, therefore, no exception could be taken against the respondents Nos.4 and 6 for using it for the purpose other than residential. It was further contended that respondents Nos.5 and 6 are being discriminated by the petitioner as well as the Regulatory Authorities, according to Mr. Ishaq number of residential properties in the surrounding are being used for commercial purposes and no action has been taken.
4(sic). Mr. Khursheed, learned counsel for the respondent No,1 KBCA submits that KBCA has initiated notices and since the terms and conditions of lease were violated, therefore, the Ministry of Works, Government of Pakistan, Islamabad, who is Principal Lesser, could take action for the violation of the terms and condition of lease if any.
5. From the perusal of the documents available on record it reveals that the subject premises is situated in purely residential area and it is now settled position in law that restrictive covenants contained in the lease run with the land. This Court noted with deep concern the stance taken by the Ministry of Works, Government of Pakistan in this matter, which is indeed deplorable. They have simply avoided to discharge their responsibility being Principal Lesser, and have put the blame on respondent No,4, the Ministry of Interior and Director-General FIA.
6. Position adopted by the custodian of properties, namely the Ministry of Works is astonishing, instead of assuring the court to take action against the violation and breach of terms and conditions of the lease, that may in fact lead to forfeiture of lease. In the comments it is asserted that since other properties are being used for commercial purposes, therefore, it is not understandable as to how office working in the boundaries of the bungalow may prejudice the fundamental rights of peaceful living of the petitioner. It may be observed that it is the prime responsibility of the lesser to ensure that the lease conditions are strictly adhered by all and sundry and any person violating the terms and conditions is to be dealt with strictly in accordance with law, rather than giving premium of one's wrong to other. Wrong whenever committed, should be nipped in the bud rather than making it a precedent or justification for successive wrong by others.
No right could be claimed nor is created in a wrong and no person could claim discrimination or assert equal treatment on the strength of any previous wrong enrichment by any person, which is product of wrong and founded in breach of any law, rules and or regulations.
7. This Court on 11th October, 2010 also expressed its anguish over the comments made by the Ministry of Works; it was observed "The respondent No,2 admitted illegal use but justified by saying that other people in the same vicinity are also using residential premises as commercial". It was further observed by the Court "in our opinion this can by no stretch of imagination justify a wrong.
It is also shocking that the respondent No,2 instead of taking action against the respondent No,6 for using residential premises for commercial use in consonance with the covenant of lease has justified such use." It was further noted "In our opinion, by filing such reply the Joint Secretary has not only compromised the authority of Government of Pakistan, but has abused his position, as custodian of Government property which of course is misconduct and he was directed to explain his position" but till date position has not been explained.
8. Contention of Mr. Khursheed Javed, learned counsel for the KBCA contends that that the KBCA has no role and authority in the matter as the Lessor is Ministry of Works, Government of Pakistan, Islamabad, the argument is fallacious, arguments are nothing but an attempt in abdication to perform legal duty cast upon the Regulatory Authority. Section 6(3) of the Sindh Building Control Ordinance 1979 clearly postulate that no building mentioned in subsection (1) shall, except with the permission of the Authority be used for the purpose other than that for which its plans were approved. It is nobody's, case that subject property is not situated in purely residential or that the building plan were approved for purpose other than residential. Admittedly subject property is residential and is so described in the lease and the tenancy agreements placed on record. A question may be raised that since the premises was constructed prior to 1979, therefore, the Ordinance, 1979 may not be applicable. It may be noted that notices were issued by the KBCA, when the renovation, addition and or alteration was being carried out and before the premites was occupied by the FIA. In Explanation to section 6(1) of Sindh Building Control Authority Ordinance, 1979 it is clarified that word "construct" with all its variations used in this section and hereafter shall include "reconstruct", "additions or alterations". Admittedly KBCA initiated action for additions and alterations and raising construction in compulsory open space, which itself is gross violation under the Sindh Building Control Authority Ordinance, 1979 and Regulations 2002. No plausible justification exists for inaction either on the part of the KBCA or Ministry of Works, Islamabad.
9. It is irony of our society, that after sixty years of independence instead of progression we are witnessing digression in moral and ethical values, which used to be hallmark of a Muslim society, one of the reason being that the authority higher in position and custodian of public rights and interests takes pride in breach, violation and defiance of the law rather than standing up, ensure obedience, follow and enforce the law. It is disparaging to note that the Regulatory Authority responsible to enforce the restrictive covenants, and authority to check misuse of property for a purpose other than for which its plan was approved, collaborate, side or over awed by yet another custodian and enforcer of law (FIA) responsible to eradicate crime in the society. The Regulatory Authorities not only provide sham justification rather encourage transgressing and stampeding the law. Article 5 of the Constitution mandates and bound down unequivocally all and sundry to obey Constitution and law, public functionary who are custodians of public right and property are also duty bound to respect, obey and follow the mandate of constitution and law. In case anyone including any public functionary more particularly, which is responsible to stamp out crime and wrong from the society transgress their limits and or are found to be in breach of their duty, it is the duty of the Courts of law to discipline such erring functionary and remedy the wrong by issuing appropriate writ.
10. One of the reasons of anarchy in our society is owing to the fact that those in authority and responsible to enforce law and bring the wrong-doer to face trial, themselves flout and transgress law with impunity, which conduct by any standard cannot be approved. It has time and again been observed by superior courts that every person and authorities alike how high so ever, are mandated by Constitution to perform their duties and discharge their function within the limits prescribed by law, respect and obey the Constitution and law in letter and spirit, it is only then anarchy, chaos and disorder in the society can be eliminated. If we as a nation, desire to stand out in the comity of nation as a civilized society; then all and sundry more importantly the public authority and functionary must resolve due observance and obedience to Constitution and law as a norm and deviation a rare and justiciable exception, however, in our society unfortunately it is quite reverse. Regretfully despite repeated reprimand and remedial and corrective directives issued by courts of law, instead of taking corrective measures and adhering to Constitution and law it is observed that tendency in public authority and functionaries is growing to be more disrespectful to Constitution and law, such' blatant transgression and abhorrence to Constitution and law by high public functionaries have a trickling and adverse effect on lower formation and ultimately effect the overall peace and tranquility in the society.
11. Any abdication in performance of public duty is itself in breach of Article 5(2) of the Constitution of Pakistan and could have serious fall out and implications.
12. Under the circumstances, we would direct the KBCA and Secretary, Ministry of Works to immediately take action against use of the subject property for a purpose other than residential within 15 days from the date of receipt of copy of this order, not only against the respondents Nos.5 and 6 but against all those scrupulous occupants and owners of the .Properties who are using their properties situated in the residential area for the purpose other than residential after due observance of all legal requirement. The action should be reported to the Court through MIT 1 of this Court within a period of 30 days.
' The petition stand allowed in terms above.