WAQAR AHMAD SETH, J.---Through this single judgment we intend to dispose of the instant Writ Petition No.2635-P of 2013 as well as the connected Writ Petitions Nos. 3152-P, 3375-P, 3380-P, 3468- P, 3491-P, 3492-P, 3548-P, 3653-P of 2014 and 47-P of 2015 as common questions of law and facts are involved in all these petitions. The relevant facts of each case are given below:-
2. (WRIT PETITION NO.2635-P OF 2012)
' The petitioner is Managing Director of Zahaq Associates (Private) Limited which is an educational and consulting Institution, functioning since 2004 and is properly registered with Government of Pakistan under section 32 of the Companies Ordinance, 1984 and more than 100 students are studying in it. That the petitioner's Institution is working on Charity basis and is a non-profit organisation in Khyber Pakhtunkhwa and is bent upon to give knowledge/education to the people of KPK in a better manner as well providing them a chance to go abroad and get more higher level education in different Countries by giving consultancy to them. It is averred in the petition that on 03/10/2013 a show cause notice was issued by the Municipal Committee University Town, Peshawar (respondent No.6 herein) directing the petitioner to stop all illegal and non permissible activities carried out in a house at University Town which notice is totally illegal and mala fide on the part of the respondents.
3. (WRIT PETITION NO.3152-P OF 2014)
' The petitioner is a qualified Doctor by profession and running a private Hospital which is properly registered under the law in the year 2012 for which premises has been taken on rent at the rate of Rs.90,000/- per month and there are twenty employees working there; that Municipal Committee University Town, Peshawar (respondent No.4 herein) issued notice regarding the deposit of advertisement charges of sign boards etc vide notice dated 21/08/2014 and he was allowed for installation of sign board by respondent No.4 through letter dated 11/02/2014 and that on 16/10/2014 respondent No.4 came to the Hospital and directed the petitioner to vacate the same house at a spur of moment and also warned to remove the sign boards etc and threatened him of sealing the premises of the said Hospital.
4. (WRIT PETITION NO.3375-P OF 2014)
' In the instant petition the petitioner is running a private Hospital which is properly registered under the law in the year 2013 for which premises has been taken on rent basis i.e. Rs.1,50,000/- per month and there are many employees working there. That on 07/11/2014 respondent No.4 came to the Hospital and directed the petitioner to vacate the same at a spur of moment and also warned to remove the signboards etc and threatened the petitioner of sealing the premises of the said Hospital.
5. (WRIT PETITION NO.3380-P OF 2014)
' ,In this case the petitioner is operating Saloon by profession in the name of "M/S Jugun Waseem Saloon" in a rented premises on monthly rent of Rs.170000/- and on 16/10/2014 respondent No.4 came to the said premises and directed the petitioner to vacate the same at a spur of moment, warned him to remove the sign boards etc and also threatened him of sealing the premises and that the respondents advertised/published notice in the Daily Newspaper "AAJ and Mashriq" on 30/09/2014 for stoppage work and in consequent to it is bent upon to seal the rented premises.
6. (WRIT PETITION NO.3468-P OF 2014)
The petitioner is the Administrator! Chief Executive of "HUMZA SURGICAL HOSPITAL" which is providing health facilities and services to the people for the Las' t thirteen years and is registered with Health Regularity Authority; that a few days back respondents came to the petitioner's hospital and tried to illegally seal the same without any cause on the ground that the petitioner is carrying on commercial activities in the area which is prohibited by the Government; and that respondent No.1 issued notice dated 11/11/2014 for vacation of the premises within seven days and along with this notice the respondents also handed over another notice dated 10/11/2014 wherein the petitioner was advised to attend the meeting on the subject matter.
7. (WRIT PETITION NO.3491-P OF 2014)
' In this case the petitioner is running the business of "Beauty Parlour" for the last one year in a lawful and peaceful manner without any complaint whatsoever from the Government or public at large especially from the residents of the locality and that all of a sudden the petitioner received notice dated 11/11/2014 from respondent No.2 for closure of the business and vacation of the premises.
8. (WRIT PETITION NO.3492-P OF 2014)
' In this case the petitioner is running the business of "BEAUTY PARLOR" for the last two years in lawful and peaceful manner without any complainant from the Government or .The public at large especially from the residents of the locality and all of a sudden she received notice dated 11/11/2014 from respondent No. 2 for closure of the said business and vacation of the premises.
10. (WRIT PETITION NO.3653-P OF 2014)9. (WRIT PETITION NO.3548-P OF 2014)
The petitioner is running the business of "hair transplant and hair repair" for the last about eleven years in lawful and peaceful manner without any complainant from the Government or the public at large especially from the residents of the locality and all of a sudden she received notice dated 11/11/2014 from respondent No.2 for closure of the said business and vacation of the premises.
' In this case the petitioner is owner of House No. 43- D-H, Old Jamrud Road, Peshawar and running a business of "Import-export" and distribution of Medical equipments; that on 26/09/2013 the respondents sealed the property of the petitioner illegally, unlawfully and without lawful jurisdiction and also disconnected the electricity, Gas and water supply connections but in the light of the orders of August Supreme Court of Pakistan the property was un-sealed and all the connections were restored and after rejection of Writ Petition No.1578- P/2012 by the Apex Court, respondent No.1 issued notice to the petitioner dated 11/11/2014 to vacate the premises within seven days.
11. (WRIT PETITION NO.47-P OF 2015)
' In this writ petition, the petitioner is running the business of "SCHOOL" for the last ten years providing best services to the public at large, in lawful and peaceful manner without any complaint whatsoever from the government or public at large especially from the residents of the locality and that all of a sudden respondent No.2 tried to close the said business and vacate the premises.
12. Arguments heard and recordperused as the learned counsel for the parties are adamant for earlier disposal of these cases.
13. In all the writ petitions, the petitioners have challenged the Advertisement dated 30/09/2014 published in daily Newspapers "Aaj and Mashriq" as well as notice dated 11/11/2014 issued by Chief Municipal Officer, Municipal Committee University Town, Peshawar wherein it was mentioned that they have started illegal/non permissible commercial activities in the residential House/premises of University Town Peshawar which is sheer violation of Local Government Act, 2013, Building Laws/bye laws and orders of Peshawar High Court Peshawar and apex Supreme Court of Pakistan as well and they are directed to vacate the premises within seven days after that no excuse shall be entertained/acceptable in this respect.
14. Record is suggestive that not even a single document has been annexed by any petitioner showing that any sanction or approval for converting the disputed premises in to commercial or for any particular purpose, other than the residence has been obtained, even any request made on behalf of the occupant, in this behalf has not been shown or placed on record. In some of the writ petitions utility bills have been enclosed, showing that these utility bills are in commercial tariff and NOC was issued by the respondent's/authority, but no such NOC has been annexed with the writ petitions nor was produced at the time of arguments. In some of the writ petitions petitioners have annexed notices regarding advertisement charges contending that the University Town Committee, was charging for commercial bill boards/advertisement board and as such impliedly, they are using the premises for commercial purposes with the consent of respondents/authority.
Perusal of these notices would show that these notices were issued on temporary basis and the same pertains to the year 2013, when tax was imposed upon such types of signboards, but admittedly there is nothing on record to show that any competent authority, or authority of the respondents, whether lawful or otherwise, had ever given sanction or any request was processed, in this respect.
15. Record As further suggestive that the wrong is recurring since long and the concerned authorities of the respondents were negligent since from the beginning and specially from 2002/2003, when for the first time notices to the number of schools and other occupants who were using the residential premises for the purpose other than residence were issued. These notices were challenged in five different writ petitions by number of petitioners and the same were decided by this court in Writ Petition No. 676/1999, vide judgment dated 30.10.2003 and the said judgment was never ever challenged before any forum and the same has attained finality but even then, the respondents/department kept mum, which in-fact is a criminal negligence on their part and in this respect, recommendations would be made later on in the judgment.
16. In the above referred writ petitions and judgment dated 30.10.2003, two types of notices were issued by the Administrator, University Town, Committee, were discussed and upheld. One notice was based on the decision of the Provincial Government to shift all schools from the University Town, residential area and the other notice alleged violation of N.W.F.P. (KPK) Building Regulations, 1985, was discussed. The first notice wasbased on the decision of Provincial Government, in a meeting held on 2.12.1998, presided over by the Chief Secretary, KPK, and attended by all other necessary official, wherein it was specifically decided that' "All Educational Institutions, local or Afghan operating in residential areas in Peshawar/other towns shall be removed from such localities to suitable sites away from residential areas". Whereas, the second notice was issued under N.W.F.P. (KPK) Local Government Ordinance 1979, read with KPK, Building Regulations, 1985, to the effect that under section 79 of the Ordinance ibid, states that no building can be erected without a plan approved by the Corporation and section 81 provides, "Except with the prior sanction of the Municipal Committee, no building shall be put to use other than the use as shown in the sanctioned building plan according to which it was erected or re-erected, provide that the Municipal Committee shall not sanctioned any change in the use of a building which may be in violation or contravention of the master plan or site development scheme".
17. In the above referred judgment, N.W.F.P. (KPK) Local Government Ordinance, 2001, was also discussed as NWFP (KPK) Building Regulations 1985, was amended by N.W.F.P. (KPK) Regulations, 1985, read with section/ article 34 of the 6th schedule in the Local Government Ordinance, 2001, where under, the use of residential building for any other purpose was also prohibited unless the requisite sanction was formally obtained. The petitioners in those writ petitions and the petitioners in the present writ petitions have not contested this legal position, rather by that time and this time also, they have only pleaded that notwithstanding the prohibition, the petitioners have been allowed to establish and run the premises, occupied them, which were initially sanctioned and used as residence, for other activities. In the above referred writ petitions decided by this court, the questioned of conservancy charges were also discussed in the following terms:-- "As to the conservancy charges, the same has been imposed by Notification of 13.12.1994 issued under Rule 185 of the University Town Committee, Peshawar Rules, 1989, read with section 137 of the N.W.F.P. Local Government Ordinance 1979, wherein different conservancy rates have been enhanced. For example, for schools and colleges, the existing rate of Rs. 1000/- per month has been revised to Rs. 200/- per student per month or Rs. 2000/-per month, whichever is higher.
The conservancy charges therefore were already in force and by the said notification it has only been increased. Rule 18 of the University Town Committee, Peshawar, Rules 1989 empowers the University Town Committee to levy taxes rates, tolls and fees with the previous sanction of the Government. Since civic amenities utilized by schools, colleges, hospitals etc are much more than those used in residential houses. The conservancy charges have been fixed to meet the additional expenses on account of such increased use. These charges have nothing to do with the conversion of the use of a building form residential to educational or commercial. By no means can the levy of the conservancy charges be considered as grant of sanction by the competent authority to change the use of the building. There is formal procedure laid down in section 81 of the Local Government Ordinance 1979 and after its replacement by the N. W.F.P.
Local Government Ordinance, 2001 under Article 34 of the 6th Schedule thereto. Both the provisions are similarly worded. It will therefore be appropriate to reproduce only one of them.
Section 81(1) of the 1979 Ordinance reads as under:- '
81. Regulation of buildings. (1) Except with the prior sanction of the Municipal Committee, no building shall be put to a use other than the use as shown in the Sanctioned building plan according to which it was erected or re- erected.
' Provided that the Municipal Committee shall not sanction any change in the use of a building which may be in violation of contravention of the Master Plan or Site Development Scheme, if any.
' The above provision couched in negative terms, explicitly prohibiting the putting into use of a building in contravention of the approved building plan without prior sanction of the Municipal Committee. Under the Ordinance XIV of 2001, the Municipal Committee has been substituted by"the concerned Local Government". Even the competent authority is restrained from granting the change of use if it would violates the Master Plan or the Site Development Scheme. The above provision envisages a formal application for sanctioning the change of use of a building and the approval is to be granted only after considering whether or not the sanction would be in conformity with the Master Plan or Site Development Scheme, if any. Neither the petitioners had moved a formal application for the change of use of their building, nor indeed has any sanction been granted.
' As stated earlier some of the impugned notices have been issued on the basis of the decision of the Provincial Government directing the University Town Committee to shift the school out of the University Town. Argument has also been raised before us that the said decision did not relate to local Schools but was confined to schools run for Afghan Refugees. Whether the notices have been issued by the Administrator University Town Committee on his own or on the direction of the Provincial Government, is not relevant to the issue as to whether the petitioners can under the law be allowed to run their schools. As held above, the establishment of the schools by the petitioners ispremises constructed for residential purposes without proper sanction of the competent authority, is in violation of thelaw. Even otherwise the equitable relief cannot be granted to those who violate the law.
18. The above referred judgment attained finality as the same was not challenged before any forum, but unfortunately the same was put in cold storage by the respondents, may be due to certain hidden intentions and the concept of establishing a colony for the employees of the Government conceived in the year 1958, after acquisition of area and scientifically planed by providing a complete residential atmosphere to the allottee and the residence was ignored. Due to this negligent act i.e. Non implementation of the provision of law and even the above cited judgment, it is witnessed that a Mushroom growth of non residential and commercial activities in the shape of Clinics, Guest Houses, Fitness Club, Hotel and Restaurants, Offices and Beauty Parlours after Schools and Colleges have cropped up, in an alarming strength which has overloaded the domestic facilities meant for residence of the area in the shape of choking of drains, parking of vehicles on roads, coming of strangers to the locality, traffic conjunction, use of extra electricity and gas, rather in nutshell it has become nuisance for the residence, but all due to the negligent and malicious mum of the respondents.
19. The above narrated negligence and non implementation of law and the judgment as discussed above had encouraged other people in the other localities and residential townships, created under the other laws i.e. Local Area Authorities and it is witnessed that the other townships in the entire Khyber Pakhtunkhwa, Province the residential premises are misused for commercial purposes, just giving advantage to individuals. In this respect number of writ petitions were filed and this court has decided the matter in Writ Petition No. 1690-P of 2014, decided on 5.6.2014, wherein it has been held as under:- "Peshawar Development Authority ("PDA") was put to notice and in response to the assertions made by the petitioners in their petitions and the submissions of the worthy counsel for petitioners, contended that this matter has been finally resolved by this Court in its judgment dated 30.10.2003, in case titled "Principal International Schools v. Government" (Writ Petition No. 1027/1996) vide its judgment dated 30.10.2003.
' When the learned counsel for PDA was confronted with the challenge made by the petitioners on the basis of "discrimination" he responded by providing to the court a list of 292 notices issued to various persons carrying on commercial activities in residential area/buildings of Hayatabad. The said list consisting of 08 sheets is placed on the record as Exh: PHC/1.
' When the judgment of this courtin "Principal International School's case ('supra') was reviewed, it is note with approval that the said decision has aptly discussed the legal status of PDA, since its establishment and evolution over time through the various statutory regimes; in this regard the Province of Khyber Pakhtunkhwa Urban Planning Ordinance, 1978. Province of Khyber Pakhtunkhwa Ordinance No. XVI of 2002, Khyber Pakhtunkhwa Ordinance XVI of 2001, the Khyber Pakhtunkhwa, Building Regulation of 1984("Regulation") elaborately discussed and finally after discussing the five different types of buildings namely; Residential Buildings; Clinical Buildings; ' Commercial Buildings; ' Educational Buildings and public Buildings: came to the conclusion that: "According to these definitions it is the designing of the building for a particular use that would determine its nature. In the year 1989 by the addition of schedule B to the 1985 Regulation by notification dated 20.2.1989 an express prohibition was made to the use of buildings in a manner in consistent with the prescribed use. We have to examine whether the use of the "Residential building" for establishing school sand clinics would be"inconsistent" with the"prescribed use"
"It follows that the use of "Residential Buildings" for running schools or opening clinics is expressly prohibited under the 1985 regulations. This prohibition is made in the public interest so that the residents of the township can be saved from the disturbance caused by the large number of people visited the schools and clinics. It is for the peaceful enjoyment of the residence by these residents that the Hayat Abad Scheme had reserved separate areas for clinics and public buildings away from the residential areas. Additionally, the amenities provided to the buildings are meant to cater for the use for which they were originally sanctioned. To use a building for a different purpose may burden the amenities planned for the area where that building is situated. Power, gas supplies and sanitation provisions for a family in a residential building may not be able to scope with its use as a school with hundred of students.
' For the reasons afforested we have no hesitation in holding that the use by the petitioners of the Residential buildings for running schools or clinics was in violation and the N. W.F.P. Building Regulations 1985. Thus the impugned notices issued to the petitioners have been issued in accordance with law and do not suffer from any legal infirmity. Consequently, the writ petitions are dismissed.
' We are in complete accord with the principle laid down and the reasons rendered in support thereof in concluding that none including the petitioners are entitled to carry on commercial activities in "Residential Building" as the same would be surely in violation of the terms of allotment of the plots and Khyber Pakhtunkhwa Building Regulations, 1985.
' Before parting with this judgment this court would not shut its eyes to the duties and obligations of respondent PDA, which being a development regulatory authority and custodian of urban planning, inter alia, in Hayat Abad Township, Peshawar, and thus are obliged to apply and enforce the provisions of Khyber Paktunkhwa Building Regulations, 1985, for urban planning of buildings and to all buildings 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 reign's, supreme; Necessitas publica major est quam private:- ' Public necessity is greater than private; that the necessary requirements of the public good are stronger, and prevail against private or individual necessity or right."
' That the petitioners, including others, who have plots allotted as "Residential Building" in IIayat Abad Township, Peshawar, cannot be allowed to carry on commercial activities. However they be provided 30 days to close down their "guest house".
' That the respondents PDA being a development authority and custodian of urban planning in Hayat Abad Township, Peshawar, are obliged to apply Khyber Pakhtunkhwa, Building Regulations, 1985, for urban planning of buildings and to all building structures, without fear or favour.
' 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 292 cases mentioned in Ex.PHC-1 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, these writ petitions are dismissed with no order as to costs.
' This judgment was upheld by the Apex Court in C.Ps. Nos. 1167 to 1173 of 2014, decided on 30th October 2014, wherein it was held that the court has the power to issue directions regarding implementation.
20. Had the respondents acted in time, this alarming situation would have been avoided. The act on the part of petitioners running a commercial activities in residential area has badly effected the life of other co-residence and at present every 10th residential house is being used for commercial activities and this act is neither permissible in law nor under the constitution and specially when no permission has been obtained or granted. Since, there is no permission in this behalf, therefore, it can be easily held that all such activities carried out is illegal, unlawful and void. It is observed that in the residential areas for schooling purposes, the students belong to the same locality, but even then the act was declared illegal, in the above referred judgment dated 30.10.2003, what to say of Guest Houses, Clinics, Hospitals, Hair Dresses, Beauty Parlour and Hospital, which even otherwise, are a cause of public nuisance in general and specially in the society.
21. In the above referred writ petition decided on 30.10.2003 sections 80, 81, of Local Government Ordinance, 1979, and 6th schedule (section 195) clause 34 of Local Government Ordinance, 2001, have been discussed in detailed, hence need no further elaboration. Local Government Ordinance, 2001, was repealed vide Khyber Pakhtunkhwa, Local Government Act, 2012 (Khyber Palkhtunkhwa, Act No. VIII of 2012) which also contains the same provision as was in the Local Government Ordinance, 2001, in the shape of section 109 (1) which reads as under:- "Regulation of buildings.---(1)Except with the prior sanction of the Municipal Committee, no building shall be put to a use other than the use as shown in the sanctioned building plan according to which it was erected or re-erected.
' Provided that the Municipal Committee shall not sanction any change in the use of a building which may be in violation or contravention of the Master Plan or Site Development Scheme, if any".
' The proviso in section 109 even creates a bar on the respondents/Municipal Committee for not sanctioning any change in the use of the building which is in violation of contravention of the Master Plan or site Development Scheme, if any. Admittedly all the premises in which petitioners are running their businesses etc were obtained either on rent or in some cases, are the owners but the site plan were approved as residential houses and not else. The original site plan scheme produced by the respondents clearly shows specific places for commercial activities whereas; the original map is in respect of all residential area. The plea of the certain petitioners that they are paying taxes in pursuance of their guest houses would not effect nor would create any vested right in their favour to perpetuate their illegality by paying something against the unauthorized and illegal activities. At the time of arguments a hand written list was produced by petitioners showing that certain buildings have been permitted conversion from residential buildings to commercial plazas by the different agencies/ respondents. In this respect it is observed that Local Government Ordinance, 1979 to Local Government Act, 2012, there is a specific bar and even the Municipal Committee/authority cannot sanction any change in the use of a building which is in violation' or contravention of Master Plan and as such separate recommendation would be made lateron.
However, this plea would not come to the rescue of present petitioners because in the referred cases the buildings were converted into commercial plazas although not authorized, but present petitioners are using the buildings/premises which are constructed as residential houses and there is no such order of conversion may be illegal, to this effect.
22. During the pendency of suo motu case as well as pendency of these cases Khyber Pakhtunkhwa, Local Government Act, 2013 has been introduced by repealing the earlier one, which even further strengthen the powers of the authority for enforcing the law on the subject. Section 71 of the Act, reads as under:-- "S.71. General Powers of Enforcement Officers.---(1) In case of any serious threat to the public health, safety or welfare or danger to life and property, or where violation of any rule or bye-law is being committed, the enforcement officer may, in his area of jurisdiction, in addition to imposition of fine or initiating prosecution under this Act-
(a) Suspend any work;
(b) Seize the goods;
(c) Seal the premises;
(d) Demolish or remove work; or
(e) Issue directions for taking corrective measures within a specified time.
(2)
(3) An Enforcement Officer may, in relation to the offences specified in Fourth and Fifth Schedules.
(a) Issue notices in writing on behalf of the local government.
(b) Initiate legal proceedings in court; and Assist in defending legal proceedings against the local government.
Whereas, Fourth Schedule (section 66) serial Nos.5 and 12 reads as under:-- Serial 5. Doing an act without license or permission when the doing of such act requires a license or permission under this Act or the rules or bye laws made under it.
Serial.12. Violation of the prohibitions provided in the Master Plan, the sanctioned Site Development Schemes under this Act, or any other law for the time being in force including plans and schemes sanctioned under the repealed enactments.
23. All the petitioners were issued by name notices which have been impugned in their writ petitions and the same notices were published in daily newspapers AJJ and Mashriq dated 30.09.2014 which Chief Municipal Officer MCUT, Peshawar, which reads as under:-- "To.
' Subject: NOTICE FOR CLOSURE OF COMMERCIAL ACTIVITIES FUNCTIONAL IN RESIDEN- TIAL HOUSES/PREMISES SITUATED AT UNIVERSITY TOWN PESHAWAR.
' Whereas, it has been observed that you have started illegal/non permissive commercial activates in the residential/premises of University Town Peshawar, which is sheer violation of Local Government Act, 2013, Building Law/Bye Laws and orders of Peshawar High Court, Peshawar and Apex Supreme Court of Pakistan as well.
' In this regard a public notices has been published in Daily "Aaj and Mushriq" dated 30.03.2014, to close down all illegal/non premises commercial activities whatsoever within 14 days.
' Now in a meeting 10/11/2014, with Additional Deputy Commissioner Peshawar, it has been decided to take concrete action against the violators. Therefore, you are directed to vacate the premises within 7 days, after that no excuse shall be entertained/acceptable in this respect.
' Chief Municipal Officer MCUT, Peshawar".
24. The above referred section 71 of the Act, 2013, fully empowers the enforcement officer to seal the premises if any violation in Fourth Schedule is committed by anyone as referred above, and also have the power to take the matter to court for the offences in this respect. The notices issued to the petitioners are in respect of sealing of premises and which is the power of the respondents/institutions. It is imperative on the public functionary like the authority/respondents to ensure adherence of the regulations. Even otherwise, as per law of the land/country, lands specified for a particular purpose cannot be used for any other purpose and specially in a circumstances when there is a A specific bar even on the competent authorities not to change the original plan. Learned counsel for the petitioners failed to justify the use of residential houses for commercial activities, besides conceding that they have no specific order, in this respect, by any of the authority, legal or otherwise, showing that they were permitted or authorized, even for time being to occupy the premises under their occupation for any other activity other than the residence.
25. The plea of the petitioners that a vested right has been created in their favour as they are occupying the premises for the commercial activity other than the residence, since long, is not a legal argument for the reason that in the particular area as the same was design for residential purposes and the people who are in majority acquired by inhabiting therein had a vested right, which has been created in their favour. This right is in fact a necessary appendage to the right to live as enshrined in Article 9 of the Constitution and right of leisure as referred to in the Article 39 of the Constitution. Thus, in the original plan of the respondents to convert or to permit conversion or use would have offended against the right of the inhabitants. In the case of 'Dr. Abdur Raul and others v. Sh. Muhammad lqbal and others' reported in (1991 SCM R 483), it has been held as under:- - ---S. 260(h)---General Clauses Act (X of 1897), S. 21---Town Planning Scheme Building operation in respect of specified category of open space were permanently prohibited-- Government allowed relaxation on application of private persons permitting them to build the same---Governments order was challenged in Constitutional jurisdiction of High Court---Town planning scheme according to which building operations in respect of specified space were permanently prohibited had been approved under S. 260, City of Lahore Corporation Act, 1941-- -Petitioners having obtained approval of the scheme under S. 260 City of Lahore Corporation Act, 1941, could not now urge that same was not under the said section---Provision of S. 260, City of Lahore Corporation Act, 1941 provided an elaborate procedure for initiating a scheme--- Jurisdictional facts necessary for making reservation under the provision of the Act had been enumerated with particularity-- For relaxation of prohibitions contained in the Town Planning Scheme, procedure, had not been followed either on the direction of the Government or independently by the corporation---It was not shown that removal or prohibition contained in Cl: (b), S. 260, City of Lahore Corporation Act, 1941, followed the disappearance of the ground or factor which necessitated the prohibition---In the absence of express power to that effect and in view of restriction contained in General Clauses Act, 1897, it was incumbent upon the corporation to adopt proper procedure and also to spell out satisfaction of jurisdictional requirement---That having not been done, order of corporation whereby it had ordered relaxation of prohibited specified area allowing therein building of Housing Scheme suffered from legal defect not only in form but in substance as well".
26. All the counsel for the petitioners heard at great length, who could not pointed out that the respondents were doing something which under the law/bye-laws they could not do or they were required by law/bye-law to do something which they were wrongfully refusing to do or they have done something without lawful authority, which could justify this court to interfere in the matter in exercise of constitutional jurisdiction. Equally, the petitioners could not established that they were similarly placed in similar circumstances, but were treated differently with owners/tenants of properties situated in the same vicinity/ road. As respondents have categorically stated that no owner/tenant has been granted permission to convert residential house into commercial enterprise, therefore, this court could not issue directions to the respondents to do what they were not required under the law/rules to do.
27. Before parting with the judgment, it is observed in general that other housing scheme through out the Province under Local Area Authority and the KPK Building Regulations, 1985, are applicable, those authorities are also keeping mysterious mum on these conversion/use of residential premises and localities for commercial activities, despite clear directions given to them in W.P. No. 3399-P of 2012 decided on 15.05.2014 and W.P. No. 1690-P of 2014.
28. In view of the above, while dismissing these writ petitions respondents are directed to.
(i) That law/bye-laws/Regulations meant for the purpose be made applicable at par without any discrimination and even in some cases the conversion has been allowed, which is not permitted by the law, the same be revisited and proper action be initiated.
(ii) The Schools/Colleges and Hospitals excluding Medical Clinics, be given four months time for shifting of their businesses and exactly after four months law should be enforced, positively.
(iii) Rest all the petitioners or premises against which the notices have been served and all the premises which are being used for any other purpose except residence be sealed, immediately.
(iv) Action be initiated against all those, right from field officials till the head/controlling authority who remained in the office/power after the judgment delivered in W.P. No. 676/1999 decided on 30.10.2003 for committing criminal negligence, inefficiency amounting to misconduct and compliance report be submitted to the Additional` Registrar (Judicial) of this court within three months. The office of the Advocate General is put to alert in this respect and any non compliance be brought to the notice of this court through a reference. Copy of this judgment be sent to all Local Area Authorities of all Townships of the Province.