YAHYA AFRIDI, J.--- Shafiq-ur-Rehman, Chief Executive, Rehman Medical Institute, Phase-V Hayatabad, Peshawar, ("RMI"), petitioner, seeks the constitutional jurisdiction of this Court praying that:--- "It is, therefore, most humbly prayed that on acceptance of this petition notice No.3.01.64/77 dated 21-11-2012 issued by PDA be declared in excess of lawful authority and jurisdiction and the same be set aside and appropriate directions/instructions be issued to the respondents to refrain from pressurizing, harassing, blackmailing petitioner in any manner and such other relief as may be deemed proper in the circumstances of the case may also be granted."
2. Brief and essential facts of the case, as asserted by the petitioner in the instant petition, are that RMI is a private hospital; that there are other official departments and private business concerns located in the same locality, having no parking space inside the said premises and the vehicles are parked outside on road side; that patient coming to RMI park their vehicles on the road side; that the RMI has facility of parking inside its premises for its senior staff, but there is none for the patients and their relations/attendance; that there is provision for parking in the 'Building Plan' of the RMI, duly approved by the respondent/PDA; and that for no valid reason and justification, letter No.3.01.64/77 dated 21-11-2012 was issued to RMI to arrange parking for vehicles of visitors and staff inside the vicinity of the RMI that no efficacious remedy was available to the petitioner, hence the present writ petition.
3.Para-wise comments of respondents 1 and 2 were called; that the respondents raised preliminary objections, inter alia, that:--- "That the writ petition is based on falsehood. It involves facts which are totally controverted rather denied. As evident from the approved plan, not only the petitioner institution has abundant parking space available in the basement to cater for its clients so as to avoid parking/security hazards on public road but the PDA Contractors for Car Parking have also not been assigned any area on main road where RMI is situated. Rather a distinct plot has been earmarked for public parking. It in fact was upon the series of complaints by Government/Semi Government Departments/Allottees including FIA, Police, Passport Office etc: regarding the threat faced due to parking on roads opposite their sensitive buildings, the competent authority in the larger interest of public has decided not to allow public parking on roads abutting sensitive Government/Semi Government Offices/Hospital etc: and the letter dated 21-11-2012 indeed is one of the endeavor made in public interest indeed indiscriminationally as similar notices to all others similarly placed have also been issued."
Further, para-3 of the comments reads:- "It is explained that PDA has also arranged a Privaite Car Parking near "Khwar" on the West of the Hospital, but the petitioner's staff and visitors are neither using the parking lots of RMI, RMC nor using the Private Car Parking rather use the Public Road for parking creating hurdle in the traffic flow and due to the reason the road always remains blocked and creates not only security risk but inconvenience for the nearby residents who want to use said route but face problems." (Emphasis provided)
It was further asserted by the respondent PDA that the approved building plan of RMI ("Plan"), annexed with the comments of the respondents, clearly reveals that parking space has duly been provided therein. It is also the stance of the respondents, that petitioner RMI has illegally converted the parking space provided in the 'Plan' into temporary cabins, guard rooms for security staff and for other use. The respondents PDA further asserted that it has time and again issued violation notices on 9-5-2012, 11-6-2012 and 11-9-2012, whereby the petitioner was directed to remove the illegal conversion, but to no avail.
4. Valuable arguments of the learned counsel for the parties were heard and the record perused with their able assistance.
5. The controversy between the parties started, when PDA on 21-11-2013 issued a notice to RMI, stating that:--- "To The Chief Executive,Rehmen Medical Institute, Plot Nos.4, 5, 6/A-3/Phase-V, Hayatabad.
Subject: ILLEGAL PARKING OF VEHICLE.
It has been observed with grave concern that most of the vehicle owned by visitors and staff of your institution are being parked on the road sides/green area and as well as in the residential plots which is causing inconvenience for residents/public. The residents residing in the vicinity of your Institution have complained against the illegal parking. You are, therefore, directed to arrange parking for vehicle of visitor and staff inside the vicinity of your Institution within one week and if any incident happens then the sole responsibility will rest upon you. Moreover, you will also be responsible for damaging of surrounding area and if you fail to follow the instructions then this office shall have no other option but to proceed for strict action against your institution under the Law. Sd/- Housing Officer (Head Quarter)" On the same day of the notice i.e. 21-11-2012, the RMI responded thereto, which reads:--- "To, The Housing Officer, Peshawar Development Authority, PDA House Block II, Phase-V, Hayatabad, Peshawar.
Subject:- Illegal parking of vehicles.
Reference your letter No.3.01.04/77, dated 21-11-2012 on the subject.
There is no residential area either in front or at the back side of our institute. You have not annexed any complaint with your letter nor you have disclosed the identity and description of any complainant.
There are other hospitals and government offices at our side and in our back having no parking facility in their buildings but you have not issued any notice to them. Your own office namely PDA does not provide any parking facility within your building.
Your notice amounts to discrimination may be withdrawn otherwise we will be left with no option but to invoke the constitutional jurisdiction of the High Court. Sd/- Director Administration RMI"
6. Before we consider the factual aspect of the case, it would be appropriate to first review the law on the subject matter. 'It is noted that Rule 27 of the North-West Frontier Province Building Regulations, 1985 ("Regulations"), deals with the matter, which reads as under:--- "27. Parking of Vehicles:-
(1) In the Central Area every prospective building shall be required to provide parking space within the premises at the rate of----
(a) One motor-car space for every 128 sq.Meters (1400 sq.Ft) of floor area;
(b) One motor-cycle/scootor space for every 28 sq.Meters (300 sq.Ft) of floor area;
(c) One cycle space for every 23.25 sq.Meters (250 sq.Ft) of floor area
(2) Provision of parking under requirement regulations 27(1) shall conform to the following standard: Motor Car Motor Cycle Bicycle
(a) By width 243 cm 76 cm 60 cm
(b) By length 548 cm 183 cm 183cm
(c) Turning Circle 610 cm 183 cm 183cm
(d) Width of single driving lane27 cm 91 cm 91 cm
(e) Gradient of ramp1:10 1:10 1:10 The aforementioned rule clearly provides for 'parking space' to be retained in all the proposed building structures seeking approval of PDA under the regulatory regime.
7. Now, moving on the respective assertions of the parties, it is noted that when we keep in view the narration of facts made by the petitioner in the instant petition, in juxtaposition with the response made thereto by the respondent PDA, the regulatory authority, it is noted that the latter has disputed the core and essential contentions of the petitioner RMI in terms that;--- Firstly, the petitioner contends that no 'parking space' was provided in the building plan approved by PDA; the respondent PDA disputed the same and asserted that no building plan can be approved, without there being a "parking space", as per the provisions of Rule 27 of the Regulations.
Secondly, it is further contested by PDA that the "parking space" approved in the building plan of the petitioner RMI has been breached by illegal conversion of the "parking space" to other use.
Thirdly, as far as contention of the petitioner raising 'bias' and discrimination, this issue has also been controverted by PDA and it is clearly stated that notices have been issued to all, who have violated the terms of the Regulations by allowing the "vehicle parking" on public roads.
8. When faced with the aforesaid contested disputed assertions by both parties, we seek guidance from the judgment of the august Supreme Court of Pakistan in Ghulam Nabi's case (PLD 2001 SC 415), wherein it was held that;--- "It hardly needs any elaboration that the superior Courts should not involve themselves into evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts." (Emphasis provided)
Similarly, in Shamim Khan's case (PLD 2005 SC 792), the Full Bench of the apex Court has observed that;--- "Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction where the material facts were admitted by the respondent, High Court could interfere." (Emphasis provided)
This was followed by the apex Court in Muhammad Sadiq v. Ilahi Bukhsh (2006 SCM R 12) and has held that;--- "High Court in exercise of its constitutional jurisdiction is not suppose to dilate upon the controversial questions of facts and interfere in the concurrent findings on such question in the writ jurisdiction but it is settled law that findings of facts are based on misreading or non-reading of evidence or not supported by any evidence, the High Court without any hesitation can interfere in the matter in its constitutional jurisdiction."
And finally, the Supreme Court has reiterated the above principles in Watan Party's case (PLD 2012 SC 292).
In view of the 'ratio decidendi' laid down in the above judgments of the apex Court, it is clear that as a general principle; Controversies, which are based on contentious disputed fact, should not be entertained and adjudicated in constitutional jurisdiction.
However, the aforementioned general principle has exceptions, which may be formulated as under:
(i) The illegality impugned can be established without elaborate inquiry;
(ii) The illegality challenged is apparent from the admitted facts or documents available on the record;
(iii) The illegality attacked in the petition is based on misreading or non-reading of evidence for no evidence at all.
Thus, in view of above, the serious disputed questions raised by the present petitioner cannot be agitated and proved by the petitioner in constitutional jurisdiction, that too, with the available record. Hence, the present petition in its present form is not maintainable before this Constitutional Court.
9. Before parting with this judgment, this Court would not shut its eyes to the duties and obligations of respondent PDA, which being a development regulatary authority and custodian of urban planning, inter alia, in Hayatabad Township, Peshawar, and thus, are obliged to apply and enforce the provisions of N.-W.F.P. Urban Planning Ordinance, 1978 and the N.-W.F.P. Building Regulations, 1985, framed thereunder, for urban planning of buildings and to all building structures, without fear or favour. While performing its duties, PDA has to ensure, without favour or fear, that all are treated in accordance with law and without any discrimination. Moreover, the guiding principle for PDA is to ensure that general public good reigns supreme; `Necessitas publica major est quam privata';--- Public necessity is greater than private; that is, the necessary requirements of the public good are stronger, and prevail against private or individual necessity or right."
9. Accordingly, for the reasons stated hereinabove, this Court directs:---
(i) That the petitioner raising contentious questions of facts, which cannot be resolved on the available record, requires recording of 'pro and contra' evidence of the parties, hence the writ petition is not maintainable in its present form.
(ii) That the respondents PDA being a development authority and custodian of urban planning in Hayatabad Township, Peshawar, are obliged to apply N.-W.F.P. Urban Planning Ordinance, 1978 and the N.-W.F.P. Building Regulations, 1985, for urban planning of buildings and to all building structures, without fear or favour.
(iii) That the respondents PDA are further directed to submit its report, under the hand of the Worthy Director General PDA, of the progress made in all cases mentioned in the present petition, within a period of three months, if not earlier, of receipt of this judgment, to the Additional Registrar (Judicial) of this Court. It may also be noted that the report be meaningful, clear in its contents, specific in the steps taken and the status achieved.
With the above observations, this writ petition is dismissed.