' SHEZADA MAZHAR, J.--- This single order shall also dispose of Writ Petitions Nos.2036 of 2008 and 1019 of 2012 emanating from common questions of law and facts inter-se the parties.
2. Precise grievances being raised on behalf of the petitioners through the above captioned constitutional petitions are with reference to illegal and unauthorized conversion of residential houses by respondents/ allottees for carrying out commercial activities, namely running of beauty parlour and establishing educational institutions in the vicinity falling within the municipal limits of Cantonment Board, Rawalpindi. In all these petitions, it is the case of the petitioners that they were granted leasehold rights of their respective houses situated in the Chaklala Officers Scheme to be regulated and governed under the relevant provisions of Cantonment Land Administration Rules, 1924. It was maintained that with regard to the original scheme, master plan was prepared and approved by Ministry of Defence in 1979 whereby both residential as well as commercial areas were specifically identified and segregated. It was also canvassed that leasehold rights of the plots located in the scheme were essentially meant for the officers of the Armed Forces for a fixed term of lease of 99-years with the express and unambiguous prohibition that premises shall not be used for any purpose except residential houses and in the event of any dereliction, violation of any clause of restrictive covenant duly executed by lessor and the lessee, appropriate action shall be initiated by respondent No,2, Military Estate Officer (MEO) under the relevant law.
3. It was strenuously argued that in absence and without the prior permission, no commercial activity could be carried out in the area exclusively restricted for residential purposes. In the context of the mushroom growth of unlawful commercial activities, it was asserted that they were perpetual source of private and public nuisance within the residential areas and that those activities would give rise to multifarious inconveniences to the residents of the surrounding houses.
It was also added that in presence of illegal commercial activities, the right of free movement and peaceful enjoyment of property as a fundamental right would be seriously jeopardized apart from traffic congestion, hampering of provisions of civic amenities and encouraging hazardous encroachments on roads. And above all, families of the petitioners living around the business enterprises would be under imminent threat and risk of any unforeseen untoward incident.
4. While summing up their case, learned counsel for the petitioners concluded that no land, building or premises could be used in a manner inconsistent with the objectives prescribed in any approved scheme or the master plan. That petitioners went from pillar to post but on account of nonfeasance or malfeasance on the part of State functionaries, the petitioners being aggrieved persons within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, have the locus standi and cause of action to invoke the Constitutional Jurisdiction of this Court, in as much as existence of commercial enterprises within the designated residential area being tortuous, are bound to disturb peace and tranquility of the residents located in close proximity.
5. In compliance with this Courts Order respondents submitted report and comments and are duly represented on record.
6. Respondents Cantonment Board, Rawalpindi as well as Station Commander, in their report and parawise comments raised preliminary objections to the effect that equally aggrieved persons like the petitioners unsuccessfully invoked the jurisdiction of civil Court and the pertinent issue of nuisance inevitably requiring factual inquiry and recording of evidence, could not be resolved by this Court, hence, the petitioners have no cause of action and locus standi to maintain the Constitutional Petitions before this Court. However, it has been conceded that the area complained of by the petitioners is under the management and control of respondent No,2/Military Estate Officer (MEO), Rawalpindi and is also covered under the relevant provisions of Cantonment Land Administration Rules, 1937. In the context of unlawful conversion of the premises from residential to commercial, it was submitted that Field Staff reported the continuance of commercial activities in residential area whereupon notices were issued to respondents/allottees. It is also mentioned that owing to unlawful conversion of the properties, showcause-notices were issued to respective allottees to discontinue their illegal commercial activities as well as for resumption of their leasehold rights to the Federal Government.
7. The stance taken up by the allottees/private respondents in their comments was that the constitutional petitions involving factual controversy are not maintainable in presence of efficacious and alternate remedy provided under various provisions of law; that the allottees being the lawful owner in possession of the premises are well within their rights to use the property in the manner best suited to them. It is further maintained that the allottees entered into valid rent agreement by obtaining prior NOC from the adjoining neighbours to establish business enterprise and to carry out lawful commercial activities in the rented premises. It is also their case that pursuant to valid rent agreements, the occupiers of the premises made huge investment on account of substantial additions, alterations, fittings and fixtures etc to establish their business concerns. Moreover, the petitioners are precluded from invoking the Constitutional Jurisdiction of this Court having already availed the appropriate remedy before Civil Courts, and the particular questions i.e,, subject matter of these petitions are still pending adjudication.
8. From the facts and circumstances and arguments of the learned counsel for the parties following questions have emerged requiring to be dilated upon and dealt with by this court:-
(i) Whether commercial activities can be carried out in designated residential area falling within the ambit of Cantonment Board?
(ii) Whether the relevant provisions become inconsequential and inoperative in view of NOC procured from neighbours? And what is the legal effect of such NOC under the relevant law?
(iii) Whether authorities of the Cantonment Board are absolved from their statutory duty after issuance of show cause notice to the violators?
(iv) What is the nexus of commercial activity with the infringement of easement rights/fundamental rights/public and private nuisance?
(v) Whether preponderance of plethora of judgments of the superior courts on the subject are not binding on the Cantonment Board on the issue of illegal conversion of residential properties into commercial properties?
(vi) What is the effect of pending litigation? Now I would like to discuss the above questions one- by-one.
(i) Whether commercial activities can be carried out in designated residential area falling within the ambit of Cantonment Board?
9. It is an admitted position that all the properties which are being used for commercial activities fall within residential area. Petitioners claimed that same cannot be used for commercial purpose.
Whereas respondents states that they are using the residential properties as commercial after obtaining requisite NOC from the relevant authorities as well as from the neighbours.
10. The clause 6 of Schedule IXA of the Cantonment Land Administration Rules, 1937 states as under:--
(6) Not to make any alterations in the plan or elevation of the said dwelling house/without such consent as aforesaid nor to use the same or permit the same to be used for any purpose other than that of a dwelling house.
' Even section 187(i) of the Cantonments Ordinance 2002 states:- 187 Encroachment and subsisting lease and ,licences-- (I) No person shall make an encroachment moveable or immoveable on any open space or land vested in or managed, maintained or controlled by a local government, or on, over or under a street, road, graveyard, within its local area or a drain.
11. Bare reading of the above two clauses reveal that any activity, other than one mentioned in the lease deed, can be carried out subject to prior permission of the relevant authorities. Even respondent No,2 (in W.P. No,2036/2008)/Military Estates Officer(ME0), states in report and parawise comments that "Any change of purpose of the property in question requires prior permission/sanction of Government of Pakistan in the Ministry of Defence after completion of all formalities by the lease to got a regular lease for commercial purposes. "
12. From the above, it can easily be stated that respondents can carry out commercial activities in the designated residential area falling within the ambit of Cantonment Board, however, subject to the prior permission as required under the relevant provision, mentioned above.
(ii) Whether the relevant provisions become inconsequential and inoperative in view of NOC procured from neighbours? And what is the legal effect of such NOC under the relevant law?
13. Now the question arises whether by providing NOC from the neighbours, the provisions of law will become redundant. An obvious answer to this question would be in negative. However, the case in hand is a bit different and the obvious reply will not fit to the facts of the present case. In the cases in hand the NOC is not only obtained from the neighbours but also from.The Station Headquarters, Rawalpindi. The said NOC is also sent to the Chaklala Cantonment Board for charging property tax on commercial basis. In presence of this NOC as well as the advertisement issued in the newspaper in September 2008 which provides "Golden opportunity" to the unauthorized users for conversion and change of purpose of existing regular lease into long term new lease under schedule IX-C (Residential/commercial), the answer to the above question should be in affirmative. Further, the letter issued by the Garrison Commander to the GHQ dated March 2009 is also very relevant to resolve the controversy in hand. The said letter states as under:- 'Gar HQ C/O HQ 10 Corps Chaklala 2168 9200/2/15/GCC // Mar, 09 To GHQ, QMG's Branch Qtg & Lands Dte (Lands Div)
Info: GHQ GS Branch (MI Dte) Sta HQ Rwp.
Subj: Estb of Pie Schools/Colleges in Cant!. Area Rwp.
GHQ, QMG's Branch, Qtg and Lands Dte itr No, 5602/1/17/Land-1 dated 13 Dec 07, 5631/517/37/Land-2 dated 27 Dec 07. This HQ itr no 9200/2/7211/15/GCC dated 23 Jul 09. 9200/2/7546/15/GCC dated 22 Sept 08 GHQ.
I. Mushroom growth or commercial activity in urban centre is basically a product of panic in community req of the locality. Over a pd of time there is a growth in the commercial activities in the residential arrears like beauty parlour/clinics, offices etc. Estb of pte schools/colleges have affected the day to day life of common man besides the congestion and at at places security concern as well as the no is inc day by day due to the inc in the population and lack of edu facilities being provided by Govt. Edn needs can only be fulfilled if Govt edn institutions are commensurate with population growth in real timeframe.
2. Although apparently estb of a large no of schools appears to be alarming but considering req vis-a-vis absence of any dedicated areas for schools/govt policy to address issue un-con growth of school is understandable. After issue of SOP to con/regulate the activities of each institution in residential area in 2005, a lot of deliberation has been carried out at various tiers. During interaction with pte schools association following ground realities were observed:- a. There are snore than 918 pte edn institutions running in Cantt AOR. The details of theses schools are: SerDetail RYB CCBTotal
(I) Total approved as per GHQ (AE Dte) Policy 1985228 112 340
(2) Approved as per new SOP 2005 issued by Gar HQ69 47 116
(3) Under process 8 22 30 (4)Old schools not in accordance with the new SOP151 43 194 (5)Un-auth new schools G. Total135 591103 327238 918 b. In Westridge area around 58 edu institutions are functioning out of which 12 have proper NOC and out of remaining 46, 8 have applied whereas 38 have not yet applied/responded. c. There is no area in the Cantt dedicated for stb of schools, even in isd schools are estb in residential arrears. Nor there is land aval which could be dedicated for school zone. d. Considering the rise in living exp due to inc in POL prices, school fee vis-a-vis income of the parents closure of already existing edn institution will not only enhance the problem of local populace but is likely to create a lot of resentment. e. Any measure to close the existing pte schools would not only going to be contested by the affected parents, but would not be supported by the Govt machinery as well. f.
Presently there are 238 schools which have not complied with the SOP and avoid adherence on one pretext or the other especially to avoid payment of commercial tax. g. Any effort to close 238 edn institutions would cause unsustainable social and political repercussions. As a huge no of students will be deprived of edn facility.
3. Basing of the above mentioned facts Gar HQ strongly recommends the fol.- a. Permission be gt to already existing 238 schools in their present loc. However, modalities be worked out to make existing defaulter schools to adhere to the SOP. This would also enhance the income of the CB in the shape of tax. b. Commercial activities other than edn institutions in the residential area should be discouraged. For which MEO should be asked to formulate and implement a strict policy. c. All the new colonies coining up in future be forced through CB to ensure proper town planning and instr to dedicate some land for estb of Schools. Grave Yards, Mosques and Tube Wells.
Estb of new edn institutions in residential area other than the already existing schools be discouraged strictly.
4. Submitted for consideration/nec action, please. ' sd/-Col For Gar Comd (Muhammad Ather Rana)
14. On careful perusal of the contents of above letter, it is clear that respondent cantonments were willing to regularize the working of all the existing private educational institutions in the cantonment areas. However regarding all other commercial activities no such willingness is decipherable on record. Further it is not clear from the record whether the said activities are also started after obtaining NOC from the neighbours or after obtaining permission from the concerned authorities in the form of NOC or in any other form. However, it is an admitted fact that the said commercial activities were admittedly going on for quite considerable period of time and without any action/objection from the concerned authorities.
15. In view of the above facts, the NOC issued to the private educational institutions shall hold the field as per their agreement and till the expiry of original period of lease and in case of extension, till the extended period of lease. However, respondent cantonment can take action, strictly in accordance with law, against any commercial activity including private educational institutions, keeping in view its earlier inaction as well as its desire, as mentioned in letter of March, 2009, to continue with the working of the private educational institutions. Iii) Whether authorities of the Cantonment i3oards are absolved from their statutory duty after issuance of show cause notice to the violators?
16. Now the question arises that what will be the effect of the show cause notices issued by the Cantonment Board for the violation of the original lease.
17. In this regard, it is observed that all the petitioners have sought direction to the respondent Cantonment Board for taking prompt action against the violators for using residential property for commercial purposes and also sought termination of lease of relevant properties and resumption of possession of the concerned properties in favour of the Federal Government.
18. From the above resume of facts it is evident that residential plot/building could not be converted into commercial without observing legal formalities in this behalf or getting permission from the concerned authorities. This can only be done by the Cantonments Boards after taking appropriate proceeding in accordance with the law and that too after hearing all the concerned. In order to fulfil the requirement of law the show causes notices were issued, however thereafter no further proceedings were taken by the respective Cantonments Boards for the reasons best known to them. The Cantonment Boards cannot be absolved from their statutory duty to initiate and complete the requisite formalities as per law. Therefore, it is necessary upon the respondents Cantonment Boards to proceed with the show cause notices in accordance with law and decide the same keeping in view the law, rules as well as any policy decision taken by them during the long period of inaction against the alleged violators on their part. It is also necessary to observe that under none of the relevant laws i.e, Cantonments Act, 1924, Cantonments Ordinance, 2002 as well as the Cantonment Land Administration Rules, 1937 conversion of a residential property into a commercial or commercial-cum-residential property is allowed subject to the provisions of the said laws. Iv) What is the nexus of commercial activity with the infringement of easement rights/fundamental rights/public and private nuisance?
19. There is no denial that the area in question is a residential area and that each lessee is bound by a restrictive covenant to use the property purely as residential accommodation. However, the lessor, of course, retained an option of relaxing the condition or diverting the use. In all the petitions, petitioners have challenged the conversion of residential property into commercial use on the ground of nuisance. Therefore, it is necessary to understand what is nuisance? Nuisance has not been defined by statute, however, it is defined in "Winfield on Tort" as "Unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it". Similarly, according to "Pollock" nuisance is "Wrong done to a man by unlawfully disturbing him in the enjoyment of his property, or in some cases in the exercise of a common right". Nuisance is a mixed concept, partly subjective and partly objective. What is nuisance to one may not be a nuisance to another and what may appear to be repugnant to one class, may not be so to another class. In short, it is relative term depending entirely upon the environment, taste, habit and the standard of living of the inhabitants of that segment of the society.
20. Now the question is whether running of the school/commercial activities in the residential area would cause nuisance to the petitioner or to the public at large?
21. There is no material on record to establish the nuisance and only reliance is made to certain judgments of superior courts of the country to establish nuisance on wrongful use of the residential properties. Despite of the admitted fact that the commercial activity is going on at residential properties. In order to claim nuisance one has to establish the same through tangible evidence. As explained above, nuisance is a relative term and therefore this cannot be ascertained in constitutional jurisdiction of this Court as it requires recording of evidence. Therefore, the petitioners may seek their remedy before competent court of law, if so desire, as provided under Section 91, C.P.C. Or before the relevant Cantonment Board as the case may be.
22. It may be for this reason that the petitioners have only sought direction against respondent Cantonment Boards for exercising their statutory duty. v). Whether preponderance of plethora of judgments of the superior courts on the subject are not binding on the Cantonment Boards on the issue of illegal commercial conversion of properties?
23. No doubt there are plethora of judgments of the superior courts on this subject wherein conversion of residential property into commercial use has been declared as illegal. Learned counsel appearing on behalf of the petitioners have relied upon number of such judgments. I have gone through the said judgments and have observed that most of these judgments arise from civil suits/litigation. In this regard reference is made to the Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC 2540), Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others (PLD 1993 Kar 631), Lahore Grammar School (Pvt.) Ltd. Etc. v. Mst.
Hameeda Begum etc. (PLD 1996 Lah. 442), Muhammad Munir and 20 others v. City District Government, Karachi through District Coordination Officer and 6 others (2007 CLC 906), Syed Tahir Hussain Mahmoodi and 7 others v. Tayyab and others (2009 CLC 1254), Ali Muhammad Mahrio and others v. CDGK and others (2009 YLR 1758), Dr. Shahzad Alam and 2 others v. Beacon Light Academy and 5 others (2011 CLC 1866) and Mrs. Nasreen Tariq v. Abdul Basit and 2 others (2013 MLD 1388).
24. In all the above cases, civil suits were filed challenging the conversion of the residential building for commercial purposes with or without permission and along with the suit an applications for interim relief were also filed which were either allowed or disallowed by the courts below and the matter came before the this Court and while discussing the nuisance and easement rights, this Court had granted temporary injunction to the plaintiffs of the cases on the ground that prima facie establishment of a school/commercial entity would create nuisance and that conversion of the residential property into a different use cannot be allowed even if NOC is obtained from the adjoining neighbours.
25. The law laid down in the cases reported as Khalid Saeed V. Shamim Rizvan and others (2003 SCMR 1505), Amjad Ikram v. Lahore Cantonment Cooperative Housing Society Ltd through Secretary and 2 others (PLD 2007 Lahore 485) and Muhammad Siddique and another v. Federation of Pakistan through M/o Works and Housing and others (2013 SCMR 1665) has no nexus and relevance to the facts and circumstances emerging from the captioned petitions as the moot point involved therein is quite distinguishable, hence the aforesaid judgments are of no avail to the learned counsel for the petitioners.
26. Reliance of the learned counsel for the petitioners on this Court's judgment in W.P.No,1709/2007 is preposterous on the ground that the facts of the present writ petitions are altogether different than those of the aforesaid writ petition, which otherwise, was set-aside vide order dated 22.10.2007 by the august Supreme Court of Pakistan in CP. No, 851/2007 .
27. Learned counsel for the petitioners also relied upon Mrs. Yawar Azhar Waheed through L.Rs, v.
Khalid Hussain and 5 others (2008 CLC 187) which too arises out of the civil litigation and the judgment and decree of permanent injunction was upheld by this court in its revisional jurisdiction on the ground that restriction imposed by the Cantonment Board in favour of the original allottee cannot be removed/waived without getting prior sanction from Cantonment Board.
28. All the above mentioned judgments of the High Court as well as the Honourable Supreme Court of Pakistan are binding not only on the Cantonment Boards but all courts under Articles 189 and 201 of the Constitution of Islamic Republic of Pakistan, 1973 only to the extent it decides a question of law or is based upon or enunciates a principle of law. Petitioners can rely upon the said judgments, however in appropriate proceedings before the Cantonment Board or other appropriate forum.
29. Be that as it may in all the captioned petitions precisely the petitioners have solicited direction from this Court to the Cantonment Board to act strictly in accordance with law, therefore the case law being relied upon by or on behalf of them is not relevant. Although other prayers are also made by the petitioners but the said prayers cannot be considered by this court as they require detailed factual inquiry and recording of evidence which course of action cannot be adopted by this Court while exercising its Constitutional jurisdiction. Even otherwise, admittedly Cantonment Board has already taken stock of the situation as to the alleged illegal use of residential properties and proceedings in the above context are also still pending before the Cantonment Board. In this view of the matter too the judgments being attempted to be relied upon are not relevant to the case in hand.
30. As regards the question of maintainability of the Constitutional petitions before this Court with reference to the issue being agitated by the learned counsel for the respondents, suffice it to add that in the light of judgments reported as Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others (PLD 1993 Karachi 237), Shafaat Ali v. Faisalabad Development Authority through its Director General and 3 others (NLR 1999 Civil 668) and Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) there is no ambiguity on the question of maintainability of the writ petitions before this Court, therefore, relying upon the law laid down in the above referred judgments, it is held that writ petitions are maintainable.
31. Adverting now to the next question which is Mat is the effect of pending litigation? In this regard it is claimed by the learned counsel for the respondent Silver Oaks School in Writ Petition No, 2036 of 2008 that husband of the petitioner filed two suits, one on 24-03-2007 and other on 26-03-2007.
In both the suits interim relief was declined and therefore another suit was filed on the same day.
On 17-05-2007 learned civil court found that the suit is filed with mala fide intention and refused to grant interim relief. The earlier suit had already been dismissed by the Civil Court after recording of evidence. The same is now subject matter of an appeal before the learned District Judge, Rawalpindi. Similarly, the other suit wherein interim relief was earlier refused but on appeal the same was granted and that matter is also pending before Hon'ble Supreme Court of Pakistan. In all these suits, plaintiffs had challenged the conversion of residential properties into commercial one.
These suits are not the subject matter of the present petitions and therefore this court would refrain from commenting upon the same.
32. The pending litigation, however has direct nexus with the controversy at hand as it is to be seen whether there is any nuisance created by the establishment of the educational institute/commercial entity in the area keeping in view the alleged long commercial use of residential properties in the Cantonment area. It is also to be seen by the concerned officer of Cantonment Board while adjudicating upon the show cause notices, the effect of pending litigation and the decisions made by the courts in this regard.
33. The respondent Cantonment Board admittedly issued NOCs for operation/opening of the certain educational institutions. In the presence of said NOCs, and on account of pending proceedings before the appropriate forum, the functioning of the schools/educational institutions/commercial organizations cannot be considered to be unlawful or illegal. Apparently, the NOCs were for a particular period. And upon expiry of their terms, the respondent Cantonment Board had also initiated proceedings, but somehow or the other, those proceedings so far remained inconclusive. In this view of the matter, this Court would not like to advert and dilate upon the aforesaid factual controversy. However, it is expected that respondent Cantonment Board shall conclude the pending proceedings for pragmatic and expeditious resolution of the issue by taking into consideration that commercial organizations/educational institutions would require reasonable time for transfer of their superstructure and equipments from one place to another. It is needless to emphasize that no nation can survive and make substantial progress without education. It is the onerous responsibility and prime duty of a State to impart education to every citizen regardless of colour, creed, caste and gender which fundamental right has been guaranteed in the Constitution of Islamic Republic of Pakistan. It was also pleaded at the Bar that in the Cantonment area there is no educational institution being sponsored and managed by the Government. This particular aspect of the matter being alarming is of paramount significance. If the private educational institutions presently established in the Cantonment Area are ordered to be closed down forthwith, it would definitely infringe and jeopardize the fundamental and Constitutional right of access to education of large number of students studying in various disciplines and such course of action would adversely affect rather ruin educational career of hundreds of students currently undergoing their respective academic sessions.
34. For the foregoing facts and reasons, this Court deems it appropriate to remit the case to respondent Cantonment Board with direction to conclude the pending proceedings pursuant to show cause notices issued to the alleged violators, expeditiously and strictly on merit. This Court also expects that respondent Cantonment Board shall optimize its policy and shall evolve a workable strategy in order to shorten the miseries and multiplicity of litigation in the larger interest and welfare of public at large keeping in view that commercial entities/educational institutions are working at their respective premises since long due to obvious inaction on the part of the Cantonment Board in addition to the mandate contained in letter of March, 2009 issued by Garrison Headquarters Chaklala.
' Writ Petitions disposed of. In terms enumerated ibid.