' AFTAB AHMED GORAR, J.---Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has sought following reliefs :
(i) Declare that the acts of respondents in placing signboards in front of the petitioner's building, are illegal and infringing upon the fundamental rights of the petitioner.
(ii) Direct the respondents to immediately remove all signboards placed in front of petitioner's premises with or without the permission of the respondent No, I.
(iii) Direct respondent No,1 to device a clear and fair policy with regard to installation of signboards in front of various residential and commercial buildings.
(iv) Grant any other relief this Hon'ble Court may deem appropriate and proper in the circumstances of the case.
(v) Grant costs."
2. The petitioner's case is that it is a scheduled bank having its registered Head/Principal Office and the main branch at I. I. Chundrigar Road, Karachi and has been functioning at the said place for last over twenty years. It is stated in the petition that in order to generate and maximize its revenue, the respondent No,1 has been issuing permission to business concerns to install signboards and hoardings etc. On roads, footpaths, electric polls etc. Which block the view, air, light etc. Of the buildings situated at such places. Respondents Nos. 2, 3 and 4, presumably, with the permission of respondent No, 1/KMC, have installed their signboards in front of the petitioner's said building thereby adversely affecting the facade of the petitioner's building and also spoiling its view and creating nuisance for the pedestrians and general public, particularly the petitioner's customers. It is also pleaded that despite various letters sent by the petitioner, respondent No,1 did not bother even to respond the same, hence the petitioner was constrained to file the present petition.
3. On service of notice, respondent No, 1/KMC filed counter affidavit to the memo of petition, whereas none put appearance on behalf of respondents Nos.2 to 4. Respondent No,1 in its counter affidavit, raised preliminary objection as to the maintainability of the petition on the ground that the petitioner has not availed the alternate remedy by moving representation to the competent authority as available under the relevant law/rules/bye-laws. It has been asserted in the counter affidavit that the permission to install the signboards in question was granted to respondents Nos.2 to 3 after fulfillment of codal formalities as envisaged under the relevant rules and byelaws. It has further been stated that there is sufficient distance between the petitioner's premises and the signboards in question which, in no manner, affect the air; light and view of the petitioner's building; on the other hand the petitioner has encroached upon the footpath for parking its vehicles which create problems for the predestrains.
4. None appeared on behalf of respondents Nos. 2 to 4, while the learned A.A.-G., appeared on court notice.
5. Learned counsel for the petitioner contended that the issue involved in this petition has elaborately been dealt with by this court in the cases of Clifton Centre Association v. City District Government and 3 others (PLD 2003 Karachi 477) and Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board Karachi and 4 others (PLD 2003 Karachi 495) wherein it has been held that nobody can be allowed to fix a board or nuisance just next to window or door of any one's private property; in the instant case the signboards, installed by the respondents Nos.2 to 4, under the license purportedly issued by respondent No,1 KMC, are seriously obstructing the view to and from the petitioner's commercial establishment facing main road and exposure of its frontage and elevation. He further contended that in view of the legal proposition that in case of conflict between the two private rights, the right which emerged and existed first is to be respected and preferred, the easement of necessity of the petitioner Bank, which has been functioning at the present place for the last over twenty years, has recognized precedence over the respondents right, if any. He further contended that no objections were invited from the general public as to the fixation of the signboards in question, thereby violating the principles of natural justice.
6. Conversely, learned counsel for respondent No,1/KMC contended that the petition itself is not maintainable for two reasons; firstly, that the petitioner is merely a tenant and does not possess any ownership rights in the building in question and secondly, that the alternate remedy, provided under the relevant rules/by-laws, has not been exhausted by the petitioner. He submitted that it is the right of the KMC to make efforts to generate and maximize its revenue. He further submitted that the licenses to install the signboards in question were issued by the KMC after observance of codal formalities. According to him, even otherwise, the signboards in question do not block / affect the light, air and view of the building where the petitioner Bank is functioning. He stressed on the fact that the petitioner has not filed any Rejoinder in rebuttal to the averments made in the counter affidavit filed by respondent No,1, therefore such averments stand unchallenged un rebutted.
7. Learned A.A.-G., appearing on court notice, submitted that the petition is maintainable as the KMC is supposed to act and to provide civic facilities to the citizens in accordance with the law / rules and any infringement of the relevant law /rules could be impugned before this court under its extraordinary constitutional jurisdiction.
8. We have heard the submissions made by the learned counsel for the parties and perused the material available on record as well as the case-law cited by the learned counsel for the petitioner.
9. In the first instance, adverting to the legal objection raised by the learned .Counsel for KMC as to the maintainability of the constitutional petition on the ground that the petitioner has not availed alternate remedy available under the relevant rules/bye-laws, suffice it to refer to the well settled principle of law that alternate remedy must not be less convenient, beneficial and effective than the one sought to be enforced under Article 199 of the Constitution; at the same time is should also be efficacious and speedy. It is also settled law that in appropriate/exceptional cases despite availability of alternate remedy, this Court can exercise its extraordinary constitutional jurisdiction conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan. In the instant case, despite issuance of four letters by the petitioner to respondent No,1/KMC, (Annexures 'C', 'C/1', 'C/2' and 'C/3' to the memo petition) to remove the signboards alleged to have been installed illegally and unlawfully, it did not bother even to respond the same, what to say about the effective steps to be made in this behalf. On the face of such a situation, it cannot be expected that the petitioner could have bee successful in getting any speedy and efficacious relief.
10. As regards the objection that the petitioner is merely a tenant and does not possess any ownership rights in the building in question, therefore, it cannot invoke the constitutional jurisdiction of this Honourable Court, we enquired from the learned counsel for respondent No,1 / KMC as to whether a tenant is not entitled to the protection of fundamental rights guaranteed under the Constitution of Islamic Republic Pakistan which, besides the 'right to enjoyment of property', also include `Freedom of trade, business or profession' as provided in Article 18 of the Constitution. The learned counsel could not give any satisfactory reply to such query, nor could he place any material on record or pinpoint any provision of law which purports to debar a tenant from enjoying such rights. In the instant case the grievance of the petitioner is not confined to the blockade of air and light by installation of the said signboards, but due to such installation its business/commercial activities are also being adversely affected as it creates nuisance for its customers.
11. It appears that now a days the tendency of installing unplanned signboards and hoardings in the city under the purported permission of the authorities in the Local Government is growing alarmingly and such signboards / hoardings cannot, at all, be termed as a treat to eyes, rather they are a soar to eyes, more particularly if they are installed in such a manner so as to block the view as well as the frontage and elevation of the commercial establishments. By such installations, not only annoyance and discomfort is caused to the general public, but it also adversely affects the business and functioning of such commercial establishments, keeping away their prospective customers/clients. Such issue has elaborately been dealt with by this court in the case reported as Clifton Centre Association v. City District Government and 3 others (PLD 2003 Karachi 477); although, the decision in the said case was delivered by a learned Single Judge of this Court, however, we feel ourselves inclined to be in full agreement with the observations made in the said case. It would be advantageous to reproduce hereunder the relevant observations from the said judgment: "The rights of life; property and business is guaranteed under the Constitution, such rights can be enforced through Court of law. SLGO, 2001 and all other laws relating to the Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making. Such public functions and duties conferred on the functionaries of the District Government are to be exercised for the betterment of the Society at large. Under section 54(g) of SLGO the District Municipal Administration besides other functions enumerated therein, is also required to regulate affixing of signboard and advertisement.' Such powers and functions are to be exercised in consonance with the rules making power in terms of sections 191 and 192 of the Ordinance thereof. Though the learned counsel argued that since no rules or bye-laws framed are under the Ordinance. According to him, even in absence of such bye-laws or rules the Executive functionaries are to discharge their function in accordance with mandate of law. Executive functionaries do not enjoy inherit or arbitrary powers to act at their whims and fancy. Indeed, no rules or bye-laws as mandated under the SLGO, 2001 have been framed. However, by virtue of section 196 thereof all rules, regulations, and bye-laws made under the predecessor law so far those are not inconsistent with the provisions of SLGO 2001 shall continue to be in force until amended or varied by the competent authority. Mr. Salahuddin, learned counsel,: however, states that under the Sindh People's Local Government Ordinance, 1972, Karachi Municipal Corporation (Advertisement) ), Bye-laws 1978 were enforced and defendant No,2 is acting in accordance therewith. Section 191 of the Ordinance, 2001 do prescribe limitation for framing such rules; which are as follows:--
(a) consistency with democratic decentralization and subsidiarity;
(b) enhancement of welfare of the people;
(c) fairness and clarity; and.
(d) natural justice and due process of law.
' Bye-law No,7 of the Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978 dated 20-5- 1979 provides as follows: "7. (1) No advertisement or advertising device shall be placed in such manner as may cause a traffic hazard on a public street;
(2) No advertisement which is objectionable on social, ethical or moral grounds or is against public policy shall be displayed. "
' From the perusal of the above Bye-laws, it is abundantly clear that the advertisement is to be placed in such manner as it may not cause a traffic problem on a public street. Any advertisement that is objectionable on social, ethical or moral grounds against public policy shall not be allowed to be displayed. Even sites for such advertisement neon-sign etc. Are to be earmarked and invitation/offers for such site is to be invited through press. Under bye-laws, the Town Committee could allocate any site without inviting public offer only in case of prior concurrence of Government. In the instant case, there is nothing on record to show that any public offer was invited through press nor there is any material to show that any prior approval of the Government was obtained to allot the subject site without inviting of the public offer. Even at this juncture, for the sake of arguments, it is presumed that all above acts were carried out in accordance with above referred bye-laws then such bye-laws are subject to the limitation as prescribed under section 191 of the Ordinance, 2001. One of the important requirement is natural justice and due process of law. By natural justice, it postulates invitation of the objections and hearing of all those persons who may be effected by such permission or fixation of the hoarding or neon-sign of the size subject-matter of the instant case. Apparently subject site was allotted without any invitation of offer through press, therefore, hearing of objection admittedly was not given."
12. In another case reported as Clifton and Defence Traders Welfare Association v. President, Clifton Cantonment Board Karachi and 4 others (PLD 2003 Karachi 495) it was held as under: "In this complex society, where people interact with each other are bound to over step and encroach upon others rights. Scope of activity is widening and producing corresponding rights, obligations and duties. With changing environment one is discovering new meaning to rights, obligations and duties, same are to be regarded and respected in accordance with the prevailing situation and ground realities. Under the Easement Act one may find that easement as to light and air were acknowledged and regulated by the framers of Easement Act, 1882 but at that time did not visualize the right to view and sight, such rights emanates from the "Right as to any Property" and "Right of Enjoyment of a Property". Such right is equally important and valuable right attached to a person's property. In this commercial world no one can deny the importance of advertisement which is an effective medium of approaching consumer and public-at-large towards product and service of commercial organization but, such right cannot be extended to an extent where it encroaches upon the rights of another person. Where there is conflict of right then a balance has to be struck between two rival rights, nobody can be allowed to fix a board or neon sign just next to the window or door of any person's private property. When there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred."
13. In the instant case the learned counsel for KMC miserably failed to place any material on record to show that any objections were invited from the general public through newspapers, or, for that matter, at least from the persons residing and/or the commercial establishments carrying on business in the close vicinity. It is also an admitted position that the petitioner Bank is functioning for the last over 20 years at the said place, therefore, in view of the legal position that in case of conflict between the two private rights; the right which emerged and existed first is to be respected and preferred, petitioner's right will prevail upon the right, if any, of the respondents.
14. As regards the plea of respondent No, 1/KMC that licenses to install the signboards in question were issued by the KMC after observance of codal formalities, to a specific query, raised by the Court, as to what codal formalities were fulfilled before issuing the license in question, learned counsel for KMC could not give any satisfactory reply, nor is there any material on record to show that the purported codal formalities had been fulfilled by respondent No,1/KMC.
15. For the foregoing reasons we are of the opinion that this is a fit case for issuance of writ of mandamus against respondent No,1.
' Above are the reasons for the short order announced by us on 11-9-2013, whereby this petition and the listed application were allowed, and respondent No,1/KMC was directed to remove within fifteen
(15) days all the impugned signboards/billboards which are installed in front of the main entrance and are blocking the front view of the petitioners' C Head Office/Principal Branch.