' The relevant facts for the decision of this Constitutional petition are that the petitioner is owner of house constructed on Plot No,109, Garden Block, New Garden Town, Lahore while the respondent No,3 is owner of Bungalow No, 109-A, the adjacent house. The grievance of the petitioner is that the respondent No,3 with the blessing of other two respondents has illegally converted the residential house into a commercial property and started therein physical fitness institution attracting large number of strangers to the premises at all hours of the day. It was added that on 27-12-1993, respondent No,2 allowed the respondent No,3 to use half of the floor area of his house for running Body Talk Clinic. The remaining half was to be used for residential purpose. This permission was, however, withdrawn vide Memo. Dated, 30-8-1994 on the ground that this is residential area, therefore, the property should be restored purely to residential purpose or he should get it commercialized after obtaining N.O.C. From owners of adjoining houses and on payment of commercialization fee as per policy; the previous position was restored vide memo dated 5-10- 1994 which was withdrawn on 18-6-1996 with the directive dated 16-6-1996 of Chief Minister.
Thereafter, respondent No,3 proceeded to file Writ Petitions Nos.10115 of 1996 and 11631 of 1996, which were pending when respondent No,1 once again preceded to restore the Health Clinic vide directive dated 2-101996 and in view of this position the said respondent did not press his writ petitions. The same were accordingly dismissed as withdrawn.
' Respondent No,2 after receiving directive dated 2-10-1996 proceeded to issue Memo. Dated 7-10- 1996, according to which, the Health Clinic was allowed to function in this house. This way the petitioner was constrained to file present Constitutional petition, which came up for limine hearing on 17-10-1996 when it was admitted to hearing. The same was accompanied by an application for grant of temporary injunction in which notice was issued to the respondents for 24-10-1996. The respondent No,2 entered appearance through its Legal Adviser while Kh. Haris Ahmad, Advocate appeared on behalf of respondent No,3. It was during the argument that Mr. Muhammad Amin Lone, Assistant Advocate-General appeared on behalf of respondent No,1 but written statements were only by respondents Nos.2 and 3.
2. The learned counsel for the petitioner argued that respondent No,3 was allowed to use half of the floor area for Body Talk Health Clinic in utter disregard of the Building Regulations, 1984. It was added that the Director-General of respondent No,2 did not exercise his jurisdiction independently and just acted as a rubber stamp as he proceeded as per directives received from Secretary to the Chief Minister. It was argued that N.O.C. Was not obtained from the neighbours which was a condition precedent for grant of permission for conversion of a residential premises into commercial. It was added that the Chief Minister has no jurisdiction in the matter. The next argument was that neither there was any application for commercialisation nor laid procedure was observed nor any fee was paid. It was argued that if law required a particular thing to be done by a particular officer then that should be done by him alone and none else. It was maintained that there was no scope for dictated exercise. In this behalf, learned counsel referred to judgments in the cases of Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation. Lahore, and 4 others (PLD 1972 Lahore 316) and Muhammad Yousaf Ali Shah v. Federal Land Commission Government of Pakistan, Rawalpindi and 2 others (1995 CLC 369). It was argued that the case of respondent No,3 was not covered by Building Regulations of 1984. It was added that what cannot be done directly, cannot be allowed to be done indirectly. The learned counsel in this behalf referred to Mir Abdul Baqi Baluch v. The Government of Pakistan etc. (PLD 1968 SC 313) and Ahmad Javed Shah v. L.D.A. Etc. (1996 CLC 748). It was argued that all the functionaries of State including the officers of respondent No,2 are under legal obligation to see that the rules are applied in letter and spirit as held in the case of Abdul Waheed Butt v. Mrs. Asma and 4 others (1989 CLC 1936) and Muhammad Iqbal and another v. Director-General, Lahore Development Authority and another (1995 CLC 1881). It was added that respondent No,3 is not living in the house and has made the life of inmates of other houses and particularly the family members of the petitioner miserable because the visitors of his premises are cause of nuisance to the other inhabitants of the area including the petitioner. The learned counsel in this behalf referred to pages 46 to 61 and F.I.R. No,113 of 1996 dated 14-6-1996. The arguments were summed up with the submission that respondent No,3 has covered the rare open space and also constructed a swimming pool in the side space against the regulations and using the first floor as Scotch Court.
3. The learned counsel for respondent No,3 opened the argument on behalf of respondents with the preliminary objections. The first preliminary objection was that petitioner has already filed a suit in January 1996 and obtained stay, which has been challenged in appeal, therefore, writ was not competent. The second objection was that the petitioned was estopped by her conduct from raising the objection to the use of the pre for Body Talk Health Clinic as she did not object to it earlier rather she and her husband participated as guests in its opening ceremony. It was added that silence on part of the petitioner for about one and a half years is fatal to her claim particularly activities on the ground floor. The third preliminary objection was that the petitioner has not come to this Court with clean hands. It was explained that area of the plot of the petitioner was 2 kanals while she has left open space for a plot of less than 2 kanals. On the other hand, the area of the plot of respondent No,3 is 1 kanal, 13 marlas and he is being asked to leave the open spaces prescribed in the Building Regulations 1984, for a plot of 2 kanals or more. It was added that there is discrepancies in area of the plot of his client and due to this confusion there were objections as to construction in rear and side open spaces in violations of Building Regulations, 1984. The next objection was that there is commercial activities going on all around the houses of parties and the petitioner has only picked up his client. The fifth preliminary objection was that she is not being directly affected and to maintain the writ petition, she has to show that she is directly and adversely affected by the activities taking place in the house of his client. The last preliminary objection was that it is a factual controversy, therefore, writ petition is not proper remedy. On facts it was argued that the F.I.R. And allegations of nuisance are incorrect. It was argued that with reference to Preamble, section 3(j), sections 4, 6, 10, 17, 38, 40, 43, 44 and 45 of L.D.A. Act, 1975 that the Building Regulations, 1984 were properly framed, Chief Minister was competent to approve use of the premises and the conversion was allowed strictly in accordance with law and rules. It was argued that commercialisation did not apply to the property of the petitioner because it was not situated on any of the roads reserved for this purpose. It was added that respondent No,3 has covered the rear open space while swimming pool was made in the side open space. It was argued that the petitioner mainly objected to swimming pool, burgar shop and construction on first floor because she apprehended that the first floor would also going to be used for the same purpose. It was explained that in view of her objection, the burgar shop was closed while his client was ready to close the swimming pool and undertakes that accommodation on first floor would be used strictly for residential purposes. It was maintained that the petitioner has no right to object to the construction made in the rear open space and use of ground floor for Body Talk Gymnasium. It was argued that violation of building regulations was not actionable by a citizen until special injury was alleged by him. In this behalf the learned counsel referred to Datari Construction Co. (Pvt.) Ltd. v. A. Razak Adamjee and others (1995 CLC 846). It was added that objection after 15 months would not be entertained while considering the regularisation and composition of the illegal construction.
In this behalf, reliance was placed on Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362) while conduct of the petitioner is relevant even according to the judgment in the case of Ahmad Javed Shah (1996 CLC 748) cited by the petitioner. The same judgment is also reported as 1996 CLC 748 and also relied by him. It was argued that according to Regulation 98 there can be relaxation in the provisions of building regulations.
4. Mr. Muhammad Arif Chaudhry, Legal Advisor of respondent No,2 argued that the letter dated 7- 10-1996 has since been withdrawn and the L.D.A. Has no intention to allow the respondent No,3 to use the premises for any other purpose than residence, except after permission for commercialisation is obtained, which shall be granted strictly in accordance with L.D.A. Act and Building Regulations, 1984. It was added that the L.D.A. Is suffering net loss of Rs,1.5 million on account of order/directives issued by the Chief Minister, therefore, it has decided to ignore this illegal interference.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and regulations as well as precedent cases.
The directive/order of the Chief Minister permitting the use of the rooms of the residential premisses as gymnasium was sought to be justified with reference to Regulation No, 51, which reads as under:-- "51. Notwithstanding the provisions of Regulation 17, a Housing Unit may include a part, not exceeding 1/2 of its floor area, to be used as office associated with the resident's profession e.g. a doctor's clinic or office, a lawyer's office or technical consultant's office etc."
It would be noticed that the key words in this regulation are 'resident's profession' and then examples of doctor's clinic or office of lawyer or technical consultant's office have been quoted.
The ranning of a gymnasium is not a profession by any stretch of imagination but a business. The word 'profession' pre-supposes same special technical qualification, therefore, establishment of respondent No,3 is not covered by the regulation.
6. The basic provisions as to construction are contained in Regulation 17 of Regulation of 1984, which prescribed that no land or building shall be used in a manner inconsistent with the prescribed use in any approved scheme or master plan while according to section (ii) of these regulations every prospective builder must comply with all the requirements of these Building Regulations. There cannot by any alteration even in the existing structure without prior permission of the competent Authority in view of section (iii) and Regulation 7 of these regulations.
7. Thereafter the effort was made to justify the order of Chief Minister with reference to Regulation 98, which provision is also not attracted because it is residuary clause and the power is vested with the Director-General who has to assign sufficient reasons in support of any relaxation. It may be noted here that the present is nat the case of relaxation of any building regulation but conversion of the premises from purely residential to partially commercial. In this behalf, it was added that the powers were delegated by the Director-General to the Chief Minister, who is the Chairman of the authority. The authority is competent as per provisions of section 10 to delegate its powers under the regulations. The same reads as under:-- "10. Delegation.---The Authority may, by general or special order, delegate to the Director-General or a Committee constituted under section 12, or a member, or an officer of the Authority, any of its powers, duties, or functions under this Act, subject to such conditions as it may think fit to impose."
When this is read with section 4 it is crystal clear that the Chief Minister is member of the Authority but whenever there is a reference to him in the Lahore Development Authority Act, 1975 as well as in the Regulations it is as Chairman of the Authority and the word 'Chairman' does not figure in section 10 quoted above. It is also to be noticed that the rule of protocol has been fully observed while detailing the various officers in this section. The names have been mentioned in order of their status and they all are below Director-Director. The argument is otherwise misconceived because this section deals with delegation of powers by the Authority and not by Director-General. This argument is against the concept of delegation. It is always the superior authority, which allows some of its powers or authority to be exercised by its subordinate and not vice versa, therefore, could be no delegation of powers by Director-General to the Chief Minister as Chairman of the Authority.
' The presentation of powers to the Chief Minister was a sinister move and the purpose was to make him responsible for all misdeeds of all the officials of the authority otherwise he being Chief Executive of the Province and enjoying much higher authority would not be desirous of securing these petty powers. These are the slippery slopes where the politician fell easy victims to evil designs of the officers of the statutory bodies and Government departments. The presentation of powers in the face of it was sufficient to over-please the Chief Minister and exhibit that concerned officer was a most obedient servant. This is done in such a innocent manner that Chia Minister would not have realised the sinister motive and mischief underlying the move. The net result would be that all wrongful and illegal orders would be got issued under his authority. Be that as it may, the delegation was ultra vires of the law and rules. The authority should be exercised strictly as provided under the law, rules and regulations. The learned counsel for the petitioner has rightly referred to the cases of Syed Fayyaz Hussain Qadri, Advocate (PLD 1972 Lah. 316) and Muhammad Yousaf Ali Shah (1995 CLC 369). It seems that the Chief Minister was also conscious of his lack of power and simply issued the directives/orders. The L.D.A. At initial stage pointed out the legal position and the result was that the directive was withdrawn by the Chief Minister but the order was again reversed at least twice. The manner in which the Chief Minister has exercised powers not vesting with him, is not a matter of pride for any democratic set up. He had no powers to deal with the matter even under Regulation 98, according to which, the powers of relaxation vested in Director-General and was subject to the condition that: (i) relaxation to be allowed in special cases; and (ii) on various reasons to be recorded in support thereof. Whereas in this case no such order was passed. There is no scope for dictated exercise of jurisdiction in present age and the order is liable to be set aside on this ground alone.
8. This in not all. I have my serious doubts even as to the competency of Director-General to grant such a relaxation because in that case the first question for determination would be whether the relaxation claimed did nullify the provisions of L.D.A. Act and earlier provisions of the regulations or not? In any case it cannot be supposed for arguments sake that the Director-General has been given absolute powers to nullify 'the regulation while granting relaxation, which was against the provisions of the regulations. The distinction has to be kept in mind to the rectifiable or minor violations and major violations. This is not the unknown phenomena. There .Are number of cases available under the Colonization of Government Lands (Punjab) Act, 1912 and other statutes where the distinction has been drawn by the Courts between the rectifiable, curable violation s and others.
9. Mian Saqib Nisar, learned counsel for the petitioner rightly pointed out that this type of royal degree has reduced the L.D.A. Financially to a state of bankruptcy. There are large number of residential premises which are being used in utter disregard of the provisions of Regulation 17 for commercial, industrial and trade purposes without having got the use approved from the L.D.A..
This on the one hand is a menace for the citizens and particularly those living in the vicinity and on the other hand, L.D.A. Is deprived of substantial amounts, which it would have received as conversion charges. The general allegations are that this all being done under the patronage of the officers of the L.D.A. Top to bottom, who do not proceed against such persons for ulterior motives. The L.D.A. Could conveniently tide over its financial difficulties if it ensured that the premises are constructed and used strictly in accordance with the L.D.A. Act and Building Regulations and by initiating actions against the owners, who have already converted the premises illegally to other than for which the building plan was sanctioned. This is being avoided by the interested officials but the L.D.A. Should not care for their welfare and well-being at its cost.
10. Now coming to some of the remaining preliminary objections raised on behalf of respondent No,3. The first one was that the petitioner is estopped by her own conduct to file the writ petition because for over a year she did not object to the use of the house by respondent No,3 for gymnasium purposes rather she along with her husband was present in the opening ceremony.
The argument is incorrect on the face of it especially when it was argued on behalf of the respondent himself that the petitioner has already filed a suit and obtained injunction. This is not all. Respondent No,3 has not placed any material on record to even prima facie show that the petitioner consented to the conversion of the premises. This is being so. It is clear from the argument advanced on behalf of the respondent himself that earlier the burgar shop was closed just to pacify the petitioner. The contradictory orders passed by then Chief Minister also disproved this contention advanced on behalf of respondent No:3. Those orders at least proved one thing that the petitioner had been throughout protesting against this illegal conversion of the house to a commercial purpose. The objection that the suit was already pending and the petition raised disputed question of fact, therefore, it is not competent. The arguments addressed by the learned counsel for the petitioner are all legal and proceed on admitted facts, therefore, objections are misconceived. The objection that the petitioner has not come with clean hands pertained to the size of the plot but the admitted position is that the parties are to left open spaces in accordance with the sanctioned building plans. It is not the case of respondent No,3 that the petitioner is seeking open spaces over and above the sanctioned building plan.
11. The next objection that the commercial activities going all around are illegal and would not give a licence to respondent No,3 to violate the rights of the petitioner.. It is difficult to accept this ground because result would be disastrous and illogical as large number of murderers and dacoits would not justify the action of a killer and a dacoit. The last objection was that the petitioner is not suffering any inconvenience. The argument is false on the face of it because the swimming pool has been made just across the wall and people enjoying swimming and sitting on the sides of the pool are not supposed to observe silence. Moreover, playing of Scotch or any other similar game would adversely affect the peace of neighbourers. The L.D.A. Act was enacted and Regulations framed keeping in view the rights of the citizens, therefore, presumption would be that any construction in violation of these rules and unauthorise use of the premises would adversely affect the neighbours.
12. The learned counsel for respondent No,3 has added a note at the end of the list of books. The same reads as under:- "NOTE: ' Respondent No,3's defence is not based on ground that his property stands commercialised by virtue of D.-G's. Order dated 20-12-1994 (Annexure E) rather his case is that by this order he has temporarily been allowed to use more than 50% of floor area for purposes subservient to his profession, in relaxation of Regulation No,51. He is, therefore, not causing any loss to L.D.A. As represented by its learned counsel. Commercialisation is a very big privilege, and in case L.D.A.
Agrees to it, respondent No,3 shall be more than willing to pay the price for such conversion."
' This clearly is an after-thought because this was not the case of the said respondent till the arguments were addressed at bar. Moreover, there is no scope for temporary conversion of a residential house into a commercial unit. This at least makes one thing clear that respondent No,3 is fully conscious of the legal position but tried to avoid legal and proper course because he could make the Chief Executive of the Province according to his wishes and interest. This fact alone is sufficient to grant the Constitutional petition.
13. The illegal conversion sought to be enforced by the then Chief Minister and Director-General deprived the L.D.A. Of a handsome amount of rupees 1.5 million, which was payable as conversion charges and impaired the peaceful enjoyment of the members of the petitioner's family. The orders were clearly illegal, without jurisdiction and mala fide.
14. The upshot of the above discussion is that this*writ petition is accepted with costs and the orders/directives of the then Chief Minister dated 5-7-1993, 5-10-1994, 2-10-1996 are held to be without jurisdiction and authority and are hereby set aside. Respondent No,2 is directed to ensure that the premises are used for residential purposes alone and the unauthorised, illegal construction is removed.