Ch. Muhammad Masood Jahangir , J.- By filing the instant Civil Revision, the petitioners have assailed order as well as judgment of the two Courts below whereby application for grant of temporary injunction made by respondent/plaintif f in his declaratory suit was concurrently allowed.
2. As per facts disclosed in the plaint, the respondent claimed himself to be the owner of property measuring 07/2 marlas and in January, 2010 he approached the petitioners for the approval of map to renovate the hospital already constructed at site and on its receipt the petitioners through notice dated 01.08.2011 required deposit of conversion fee amounting to Rs.9,00,000/-, but subsequently through notice dated 05.09.2011, half of the said amount was demanded and the vires of these notices were assailed through institution of declaratory suit accompanied by an application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, 1908 for restraining the petitioners/defendants to act upon the impugned notices. The suit as well as application was contested with the defence that respondent/plaintiff as per the Punjab Land Use (Classification, Restrictions and Redevelopment) Rules, 2009 was under obligation to pay the fee, and that without paying the fee, neither nature of a property could be allowed to be converted nor its site plan would be sanctioned. The application for grant of temporary injunction was concurrently allowed vide orders referred in para 1 ante, hence the instant Civil Revision.
3. Arguments heard. Record perused.
4. It was not denied by the learned counsel for the respondent/plaintif f that the latter submitted the site plan for its approval to construct hospital in the residential area. The original record was brought by the learned counsel for the petitioners and recital of application made by the respondent to the former was reflective of the fact that he was eager to raise a new commercial building having three floors up to the height of 35 feet. No doubt adjacent to it, a hospital had already been approved and constructed over a residential plot titled by father of the respondent and it appeared that for the extension thereof, the plan was submitted by respondent. It was a simple case to the extent of refusal of temporary injunction, as the respondent failed to make out a prima facie arguable case, who at the1 most was to face the loss in terms of coins, which could not consider to be an irreparable loss, hence all the three elements did not tilt in fvour of the respondent, but both the Courts below without adverting thereto passed the impugned orders.
5. Consequently , this Civil Revision is allowed, the impugned order as well as judgment passed by the learned Courts below is hereby set aside and application moved under Order XXXIX Rules 1 & 2 of the Code ibid stands dismissed. However , it is clarified that the above findings being based on tentative assessment of the material on record are not meant to prejudice the case of either party at the time of final adjudication, which will be dealt with on the basis of the evidence likely to be adduced by the parties during the trial.
6. Before parting with this judgment, to this Court, most apposite and imperative question would be; whether after paying the conversion fee, a hospital or any commercial building could be allowed to be erected in residential area.
There is no cavil to admit that use of property is a recognized right, but it has to remain subject to reasonable restriction and no one can be allowed to construct or use his premises in whatever manner he likes, even at the cost of discomposure and nuisance to the others breathing in the immediate neighborhood or exactly in the vicinity thereof. I must add here that although some Rules/Regulations are in field to countenance any such conversion amounting to distract the peace, coziness, health, greenery/flora, smooth flow of traffic and most significantly in violation of master plan approved for the domiciliary region, but the Rules/Regulations are envisioned to homogenize the associations inter se neighbourers as well as among State and the Nationals, which neither can be supported nor perpetuated and there is no other axiom that every organ of the State including Federal and Provincial Governments as well as Local Government besides Cantonment Boards is bound to follow the law to perform its obligations and none can claim exception to it. A master plan for a Housing Scheme without reserving independent plots for academic institutions, hospital, commercial areas/shops/malls, mosque, playgrounds or banquet halls having independent areas for parking cannot be approved. The departments of the State especially Municipalities, Local Government and Cantonment Boards are functioning to mint money or raise their revenue without sensing the problems to be faced by the citizens for whom comfort/ease they were established and for that reason each of the residential area has changed its character. The schools, hospitals, clinics, marriage halls, gymnasiums, snooker clubs, saloons, shopping malls, shops hotels, guest rooms and offices have rapidly been erected in our residential areas without realizing that its outcome will be nuisance, pollution, congestion, discomfort, injury to privacy and hurdle to flow of traffic. We have ruined our civilization and no heed is being paid on behalf of the concerned State organs or the authorities including Local Government Bodies to overcome these problems. The plans of the commercial buildings without examining its suitability or considering its backdrop are being approved on the whims and desires of the persons, who are either financially sound or have some influential personality at their back.
Practically plans for raising most of the commercial buildings are being sanctioned without comprehending that parking area was reserved or not, but even if at the time of sanction, it was shown therein, then after construction same starts utilizing for commercial activities and the officials of building wings of the concerned authorities/ Local Bodies are benefitted thereof, whereas traffic hurdles are to be faced by the citizens and the command of the traffic police ceased its effect to restore the flow of traffic. To adjudge civilization of a society, traffic discipline may be one of its indicators and we have been flopped so far to achieve any respect to this extent. Much water has flown under the bridges and there left no much time to save our society from further destruction. It is high time for the awakening of individuals as well as organs of the State to remove the infirmities wherever those are and to advance forward while realizing that every step has to be taken as per law and law only, hence any Rules/Regulations, if are made and still in field, may not be applied to militate the master plan of a scheme, even at the cost of generating revenue cannot be enforced, but have to be revisited at appropriate forums. Let a copy of this judgment be forwarded to the Chief Secretary , Secretary Local Bodies, Government of Punjab, Lahore, Attorney General of Pakistan, Islamabad and Advocate General, Punjab, Lahore to examine the relevant law/rules on the subject for conversion of residential area to commercial one and make/ propose necessary amendments/improvements to eliminate the hurdles created thereby for maintaining beautification of the vicinity as per its original plan. They are also required to look that in future no residentia l building will be allowed to be converted into another class to cause nuisance for the other inhabitants and on commercial areas/roads no commercial building to be approved without reserving adequate area/spot for parking of vehicles and also ensure that the same is not used except for the said purpose as well. The relevant Authorities are also obliged to take action for the shifting of commercial activities going on in the residential areas to restore its original position as well as peace and also revisit the earlier approved plans of the commercial buildings available on commercial zones/roads and if anyone is found short of basic necessities, it should be given a notice to get rid of the inadequacies within maximum period of four months and even then if they fail, stringent action for the stoppage of their proscribed and irrational activities triggering problems for the others shall be commenced and unless the deficiencies are made good, no such commercial buildings, which are providing big source for blocking traffic in our main cities, will be allowed to exist.