' SAJJAD ALI SHAH, J.---The petitioners on 21-8-2008, filed the instant petition seeking the following reliefs:--
(I) Direct the respondent No,4 to stop the commercial activity being carried out in the form of College of Accounting and Management Sciences at Plot bearing No,B-109, Allama Shibli Nomani Road, Gulshan-e-Faisal Cooperative Housing Society Ltd, Bath Island, Karachi that is in violation of lease conditions (annexure "A" & "B") of Gulshan-e-Faisal, Co-operative Housing Society Limited (petitioner No,2), the Ordinance and the Regulations;
(II) Direct the respondent No,1 to demolish construction raised by the respondent No,4 save that of a dwelling house and in excess of ground plus two storeys and contrary to the lease conditions, the Ordinance and the Regulations;
(III) Direct the respondent No,2 and/or respondent No,3 to issue requisite notice and take steps for forfeiture of any and all rights of the respondent No,4 to or in the subject Plot in view of the violation of the lease conditions;
(IV) Attach the building of the respondent No,4 and or restrain the commercial activity thereon until the decision of this Petition;
(V) Grant costs;
(VI) Grant any further or better relief that this Hon'ble. Court may deem just and proper in the facts and circumstances of the case.
2. Briefly, the grievance of the petitioners appears to be that the respondent No,4 is carrying commercial activity upon a residential plot bearing No, B-109, admeasuiing 729.1.6, situated at Allama Shibli Road; Bath Island, Karachi which is just adjacent to the petitioner No,1 single storey residential bungalow. The next grievance is that the respondent No,4 has without approval of the petitioner. No,2/ society in gross violation of the building laws has constructed ground plus three and such construction is not only without approved plan but a continued source of nuisance on account of heavy traffic inflow throughout the day. It is also asserted that such commercial use of residential place is also in violation of clause 7(a) of the lease conditions which provides that:-- "the sub-lessee shall not without the previous consent of the lessor divert the plot to use other than those which it is intended as per sanctioned lay out plan."
' It is also the case of the petitioners that by raising ground plus three, the respondent No,4 has arso violated clause 7 (b) of conditions of lease, which provides that:-- the lessee shall not construct buildings on more than one third of the area of the said plot or construct or re-construct any building or add to any existing building a structure so as to make such building consist of more than three storeys (i,e, the ground and the two floors)."
3. Mr. Rasheed Ahmed Akhund, learned counsel appearing for the respondent No,4, contended that since he has challenged the maintainability of the instant petition therefore, he may be allowed to argue the competency of the instant petition. Mr. Akhund pointed out that the petitioner No,1 is the owner of the house next to the respondent No,4, whereas, the petitioner No,2 is Gulshan-eFaisal Cooperative Housing Society Ltd., where the subject plots are situated. According to the counsel, the petitioner No,1 has filed this petition through Attorney who happens to be the Secretary of the Society/petitioner No,2 but the Secretary has only signed on behalf of the Society and not on behalf of the petitioner. It was next contended that the power of attorney executed by the petitioner No,1 in favour of the petitioner No,2 does not envisage the present litigation, therefore, the filing of petition by the petitioner No,2 on behalf of the petitioner No,1 is without lawful authority. Counsel further challenged the letter of authority dated 4-6-2008 issued by the Managing Committee in favour of the Secretary, on the ground that the said letter of authority fias been signed by the Secretary himself Mr. Akhund next pleaded that the petition is badly hit by lathes as the respondent No,4 is in operation since 1996 and the petition has been filed in the year 2008. It was further pleaded that petition additionally is incompetent on the ground that the petitioner No, 2 vide its letter dated 24- 12-1998 has given no objection whereby it permitted the respondent No,4 to continue its use as educational institute. On merits Mr. Akhund, to justify the working of educational institution in the residential area has placed reliance on an order dated 12-8-2003 passed in Constitution Petition No,621 of 2003 whereby a learned Bench of this Court had dismissed the petition seeking closure of a school in a residential area on the ground that "Some 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 of children". It was next contended that the respondent No,4 is providing special accountancy and business education such as ACCA, MFC, BBA, MBA, B.Com and CFA to 1546 students, a specialized education, which is rendered by very few institutions at Karachi and such activity by no stretch of imagination be termed as commercial activity. It was pleaded that if the respondent No,4 is stopped from functioning as an educational institution it would amount to depriving more than 1546 students of specialized education, who presently are enrolled with the respondent No,4.
4. Mr. Rasheed Ahmed Akhund in order to seek dismissal of this petition on the ground of laches has placed reliance on the judgments of Syed Mazhar Hussain Shah through L.Rs, v. Member, Board of Revenue, Punjab, Lahore and others (2006 SCMR 959) and Jawad Mir Muhammadi and others v.
Haroon Mirza and others. (PLD 2007 SC 472) and has further placed reliance on a case-law of Indian jurisdiction i,e, Miss Mohini Jain v. State of Karnataka and others (AIR 1992 Supreme Court 1858) to contend that right to education is concomitant to fundamental rights.
5. On the other hand, the stance of the Building Control Authority is that the respondent No,4 has misused a residential bungalow comprising of ground-plus-one by: (i) constructing additional floors, (ii) conversion of aerate shelter into regular basement, (iii) construction in COS, (iv) change of internal planning, (v) opening of commercial college in residential premises and (vi) occupying the building without occupancy certificate from the Building Control Authority. It was pleaded that several notices have been issued and even respondent No,4 submitted undertaking to backfill the basement beyond aerate shelter, but to no consequence. It was further pleaded that several complaints right from 1995 onwards after the grant of approval were received, but the respondent Ne.4 constructed building without paying any heed to the notices and occupied the same without obtaining occupancy certificate. It is further disclosed that on account of complaints of the residents as well as petitioner's society, letter dated 4-10-2003 was issued to the owners to close commercial activity, thereafter, respondent No,4/owner of the Education Institution filed a petition bearing No,D-1318/2003 for getting the subject plot commercialized, but to no effect.
6. Mr. Rafiq Ahmed Kalwar, learned counsel for the petitioner while responding to the legal objections, contends that the body of petition itself would reflect that the attorney of the petitioner No,1, who happens to be the Secretary of petitioner No,2, has signed the petition for petitioner No,2 and duly constituted attorney for petitioner No,1 and likewise he referred to the power of attorney which reflects the purpose of executing power of attorney as, filing any suit and or petition or taking any other action in respect of College of Accounting and Management Sciences (CAMS) in respect of the lease condition thereof. As regard the authority letter, it was pleaded that the authority letter would itself reflect that the Managing Committee in its meeting had authorized the Secretary to initiate proceeding against misuse of Plot No,13-109 by CAMS. Mr. Kalwar pleaded that since the plot is situated on 50 feet wide road, therefore, the request of the petitioner in consequent to Const.
Petition No, D-1318 of 2003 was turned down, as according to Regulation 18- 4.2.8 educational institution in a residential area could only be allowed to function if they are situated on 60 feet wide road. Mr. Kalwar to meet the objection on the ground of laches while referring to correspondence right from the year 2000 onward contended that almost all forums such as the Secretary of the Society, Chief Controller of Building, Hon'ble Governor of Sindh, City Nazim, the owner of the CAMS were approached and requested for shutting down the commercial activity which was stated to be a cause of nuisance to the members of the society. Reliance was also placed on the judgment of the Apex Court as well as this Court in the cases of Muhammad Anwar Siddiqui v. Lahore Development Authority (2009 SCMR 177), Shamsul Arfin and others v. Karachi Building Control Authority and others (PLD 2007 Karachi 498) and Umar Baz Khan v. Syed Jehanzeb and others (PLD 2013 Supreme Court 268). Mr. Kalwar, while referring to no objection certificate dated 24-12-1998, contended that in response to the approaches of the petitioner, respondent No,4 produced a fake no objection certificate from the society in order to justify such commercial activity which was never issued by the Society and is fake and manipulated. Counsel contended that no one can deny the importance of education but at the same time the importance of peaceful living and the mandate of law cannot be ignored. Mr. Kalwar further referred to para 2(a) of the counter affidavit filed by the respondent No,4 to the main petition and asserted that the respondent No,4 has himself admitted that he has applied to the building control authority for regularization of the construction which admittedly was declined. As to the order passed in Const. Petition No, D-621 of 2003, Mr. Kalwar contended that in the entire order no provision of law whatsoever is discussed or pleaded, therefore, it cannot be made applicable to the case of respondent No .4 .
7. We have heard the learned counsel for the respective parties at length and have perused the record.
8. As to maintainability of the instant petition, we find that the petitioner No,2 has signed the instant petition for both the petitioners and additionally the power of attorney, executed by the petitioner No,1 in favour of the Secretary of petitioner No,2 Society, prescribes the purpose for which it has been executed and so is the authority letter, empowering the petitioner No,1 to file the instant petition, therefore, the objection raised as to the maintainability of the instant petition is overruled.
9. As to plea of laches, the record would reflect that the petitioner was very consistent with the cause and had approached almost all forums complaining the unlawful use of the premises so far so that at one stage the petitioners succeeded in their cause when in the year 1997 the premises was sealed, despite the respondent No,4 continued with the construction thereafter the respondent No,4 applied for conversion during the amnesty provided by the government in the year 2002 for regularization and ultimately on account of various complaints, letter was issued to the respondent No,4 to shut down commercial activity which led the respondent No,4 to file Const. Petition No, D- 1318 of 2003 which was decided vide judgment dated 12-2-2004, directing the respondent No,4 to approach Building Control Authority who would consider the request of the respondent No,4 for regularization of the plan for running educational institution, however, the respondent No,4 deliberately did not seriously pursued the cause and ultimately the petitioners filed this petition, therefore, in our opinion the petitioners were quite vigilant in pursuing their cause. Even otherwise the Apex Court in the case of Muhammad Anwar Siddiqui (supra) held that Rule of laches being not a rule of universal application and had to be applied according to the facts and circumstances of each case. It was also held by the Apex Court in the case of Umar Baz Khan (supra) that no Court could dismiss a lis on the ground of laches if it defeated the cause of justice and thereby perpetuated an injustice. Likewise, in the case of Shamsul Arlin (supra) this Court has held "where a controversy falls within the domain of public interest then even if it is brought to the notice of the concerned authority belatedly, it is the statutory duty of the concerned authority to take appropriate remedial steps for eradication of' illegality and where authority does not discharge its statutory duty, then Court is bound to issue appropriate directions irrespective of the delay in bringing the cause before the Court". The plea of laches therefore, is rejected.
10. On merits, there appears to be no denial that the present use of the subject property by the respondent No,4 is not only in violation of the terms and conditions of the lease but also lacks approval from the building control authority, as the present use of the building by the respondent No,4 is in gross violation of the Karachi Building and Town Planning Regulations, 2002. Mr. Akhund has laid much stress upon the importance of education and exemption of educational institution from the application of building and or Town Planning Laws. The importance of education in our society or in any society cannot be ignored and perhaps the legislature itself while realizing such importance has allowed the educational institutions to impart education in a residential area but has laid a condition that such change of use is permissible in only those residential areas where the width of the road is 60 feet or more. We for the sake of convenience would reproduce the text of Karachi Building and Town Planning Regulation 18-4.2.8 which reads as follows:-- "Residential plot within a residential neighbourhood can be allowed to be used for Education provided the plot faces minimum width of road 60 ft. And lawfully converted into an Amenity plot for education by the MPGO as per prescribed procedure after inviting Public objections from neighbourhood:"
11. The wisdom of the legislature to permit the operation of an educational institution in a residential area on a road which is not less than 60 feet of course A appears to be well gauged, ensuring to minimize the disturbance which in the circumstances would be caused by an educational institution if situated on less than 60 feet road.
12. Coming to the order passed by this Court in Const. Petition No,D-621 of 2003, perusal of the order would reflect that neither any violation of building laws was pleaded in that case nor it was decided. Additionally, the order was passed on 12-8-2003 when there was dire need to regulate the Karachi Building and Town Planning Regulations in respect of the educational institutions which were being run in the residential areas and in order to cater such pressing need the legislature had introduced Regulation 18-4.2.8 by amending the Karachi Building and Town Planning Regulations on 4-8-2005 whereby the educational institutions were allowed to continue their functioning if such educational institutions were on a road not less than 60 feet wide road. Consequently, the order passed in Const. Petition No,D-621 of 2003 has no application to the case in hand and that too after amendment of Regulation, 2002.
13. Since the violation of Regulation 18-4.2.8 stands established and further that the construction so raised by the respondent No,4 is grossly in violation of the approved building plan, therefore, we allow the petition as prayed, however, keeping in view the inconvenience which ultimately would be caused to the students, we defer the implementation of our judgment till Summer Vacation so that the respondent No,4 may make alternate arrangements. In case, the respondent No,4 continues the educational use of the subject property after 31-7-2015, the respondents would seal the premises and would ensure removal of unlawful construction.