Through this writ petition under Article 199 of the. Constitution of the Islamic Republic of Pakistan, 1973, the petitioner Ch. Abdul Hamid seeks declaration that the site plan for the construction of Lahore Regency Hotel at Plots Nos,25 and 26, Kashmir/Egerton Road, Lahore Scheme of Lahore Development Authority Lahore sanctioned on 7-8-1991, by the Lahore Development Authority respondent No,1, be declared as without any lawful authority and of no legal consequence. It is further prayed that respondent No,1 be directed to withdraw the sanction and to further ensure that no such site plan in future be sanctioned, which may in any manner make possible interference in the privacy of the residence of the petitioner.
2. The brief facts of the case as narrated in this petition are that the petitioner was absolute owner of property known as Plot Nos, 25 and 26 of Kashmir Egerton Road, Scheme of Lahore Development Authority measuring 3 Kanals 18 Marlas and 142 Sq.. ft, which according to the petitioner was exempted by the L.D.A. in favour of the petitioner vide agreement, registered on 23-10-1978 and modified agreement dated 11-2-1987, registered on 23-2-1987, with the Sub-Registrar Lahore Cantt.
Alongwith the adjoining land measuring 14 Marlas and 121 sq. ft. which according to the petitioner has been purchased from one Abdul Habib through sale-deed on 29-7-1966 hence by virtue of the above said document the petitioner became the owner of the 4 Kanals, 13 Marlas and 38 sq. ft.
3. The petitioner executed the sale-deed in favour of M/S Alliance Industrial and Commercial Cooperative Society Ltd, 39 Mozang Road, Lahore on 29-3-1989. According to the petitioner the vendee was bound to provide 10 feet wide passage on the extreme end of Plot No,26, adjoining Plot No,27, to be used by the vendee as right of way for all times to come. It was further provided, according to the petitioner, in the said sale-deed that the vendee or his successors-in-interest were bound to construct the building in such a way that the privacy of the residential portion at the rear shall not be disturbed. According to the petitioner through sale-deed dated 1-4-1989 the vendee and its successors-in-interest were bound to abide by the abovesaid terms. M/s. Alliance Industrial and Commercial Cooperative Society Ltd./respondent No,2, which submitted the site plan and was sanctioned by the L.D.A. for the construction of Lahore Regency Hotel. Needless to mention here that respondent No,1 required that at that point of time that the windows will he so designed so as to safeguard the privacy of the neighbourers. Despite that the site plan was sanctioned due to the influence of respondent No,2.
4. Learned counsel for the petitioner contends that in violation of the conditions laid down in the sale agreement between the petitioner and the predecessor-in-interest of respondent No,2, the site plan had been sanctioned by the L.D.A. which could not be sanctioned without taking into consideration the conditions laid down in the sale-deed. It is further contended that 10 feet wide street has not been provided as was the condition laid down and the measures to safeguard the privacy of the petitioner were not kept in mind while sanctioning the site plan. It is further contended that vide order dated 15-8-1992 Mian Nisar Ahmad, Advocate, learned counsel appearing on behalf of the private respondent has specifically stated that the privacy is not being violated and L.D.A. assured that the windows shall be designed. in a fashion which would not affect the privacy in any manner.The Director Town Planning appeared in the Court on 17-8-1992, according to the learned counsel for the petitioner and made a statement that all necessary steps shall be taken to secure the privacy and specific windows to the height of 5 feet were sanctioned and direction, according to him, can be issued to the petitioner to provide for the louvre. Mian Nisar Ahmad, Advocate, learned counsel appearing on behalf of the respondent No,2 gave an undertaking that "the windows, specifications whereof, approved by the L.D.A. shall be erected and if any need arises the louvers shall be provided thereon."
5. Learned counsel for the petitioner contends that after giving of such undertaking, respondent No,2 could not make the constructions in violation of the undertaking given by him without securing the privacy of the petitioner but respondent No,2 has not implemented the: undertaking in letter and spirit and has made the constructions which has grossly affected the privacy of the petitioner.
He further contends that certain documents have been attached with this petition which proved that the violation has been made by respondent No,2 and the privacy of the petitioner has not been secured.It is further contended that the privacy has to be preserved as the right existed in favour of the petitioner due to the terms of sale agreement and subsequently the petitioner gave an undertaking in this regard in this Court. Learned counsel for the petitioner further contends that the construction is not only in violation of the sale agreement and the condition precedent for the construction but is also in violation of the sanctioned plan which has been sanctioned by the L.D.A.
It is further contended that the petitioner is entitled for the right of privacy as is laid down in judgments reported as Master Bilawal Ali Zardari v. K.D.A. and others (PLD 1992 Karachi pages 67 to 77), Mst. Sardar Begum Faruqui and 6 others v. Rahida Khatoon and 2 others (1990 CLC pages 83 to 85), Yaqoob Ahmad and 4 others v. Messrs Jason Construction (Pvt) Ltd. and 2 others (1989 CLC page 739), Abdul Waheed Butt v. Mrs.Asma and 4 others (1989 CLC page 1936), Abdul Razak v.
Karachi Building Control Authority and others (PLD 1994 SC page 512 and Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and another (PLD 1966 SC page 639).
6. On the other hand in the comments submitted by the. L.D.A. in this Court, in response to the writ petition, the L.D.A. took the stand in para. 3 that it has been clearly mentioned in sanctioned letter that the owner of Plot Nos,25 and 26 will not provide any window or door which may cause adverse affect to the privacy of the adjoining houses.In para. 5 of the comments the L.D.A. ensured that the windows opening towards the property of the petitioner shall be so designed that his privacy is safeguarded. However, the stand of the L.D.A. regarding the provision of passage of adjoining Plot No,27 did not pertain to L.D.A.
7. Learned counsel appearing on. behalf of the L.D.A. has contended that the L.D.A. has also given the undertaking to safeguard the privacy of the petitioner, L.D.A. has visited the site on number of occasions and has tried its best to safeguard the privacy of the petitioner and the louvers have been affixed for this purpose. It is further contended by the learned counsel for the L.D.A. that in case of violation, respondent No,2 has been penalized on a number of times and shall be penalized in future as well. Respondent No,2 has also submitted the reply of the writ petition and hereby raised a preliminary objection that no order can be passed on a mere assumption of the existence of a customary easement. It has also been mentioned that factual controversies cannot be resolved in writ jurisdiction. It is further contended that the right of privacy is unfounded. The windows overlook .the blind southern wall of the house of the petitioner which is at a distance of about 15 feet from the building of the respondent. The various apartments of the petitioner's house cannot be watched, observed or over looked from the windows provided by the answering respondent in his property. Another objection has been taken that the building has been constructed in the commercial area and various buildings already have been constructed on the Adjoining plots havingsimilar characteristics. It is further mentioned in the reply that in the Province of Punjab the customary easement right does not exist.
8. On facts the claim of the petitioner has been challenged as according to respondent No,2, it is totally unfounded. It has been mentioned that the writ petition has been filed in conspiracy with certain functionaries of respondent No,1 . in order to harass and intimidate the answering respondent. However, it has been mentioned that the answering respondent was carrying on with the construction in a lawful manner after the sanction of the plan. Learned counsel for respondent No,2 has contended that the factual controversies are involved in this case which cannot be resolved through writ jurisdiction hence the writ petition is liable to be dismissed. It is further contended that the windows open only in front of the blind wall of the house of the petitioner and no privacy of the petitioner is disturbed. It is further contended that it is not possible to over look the petitioner's house particularly the living passed passage of the house. Learned counsel for respondent No,2 relied upon judgment reported as Haji Fazal-i-Raziq v. Syed Zaman Shah and others (PLD 1980 SC page 193 at 197). It is further contended that the custom in the Punjab does not exist, hence there were no right of privacy and no customary right of easement existed. Relies on Dr.Miss Hajira Abdullah. Professor of Paediatrics (Rtd.) F.J. Medical College Lahore and 3 others v.
Lahore Development Authority, Lahore through Director General and 4 others (PLD 1997 Lah. 464), which is a Double Bench Judgment. Muhammad Munir v. Ahmad Ally Memon and 2 others (PLD 1982 Karachi 425) which follows the judgment of the august Supreme Court above referred in Haji Fazl-i-Razaq's case. R.G.Sehwani Cooperative Housing Society Ltd. v. Haji Ahmad and 3 others (PLD 1983 Karachi 11), A. Razak Adamjee and another v. Messrs Datari Construction Company (Pvt.) Ltd. and another (1991 MLD page 1112) and Pir Agha Muhammad Hussain Jan and others v. Elias Haji Wahiddino (AIR 1948 Sindh 36) and contends that the Local Commission has submitted the final report based upon the comments of the Sub-Committee headed by the Chief Secretary which was admitted the other party and according to the report of Nayyar Ali Dada that louvers have provided to safeguard the privacy of the petitioner. It is further contended that the Lahore City has been developed and both the sides of the roads where the house of the petitioner is situated, multi-storeyed buildings have been constructed and it is the commercial area, therefore, the petitioner cannot claim the customary right and the right of privacy in such circumstances. It is further contended that as controversial facts have come on the record, the petitioner can file a civil suit and in writ jurisdiction this Court cannot involve itself into such controversies. Relies on Mian Muhammad and others v. The Government of West Pakistan through the Secretary, Revenue Department and others (1968 SCMR page 935) and Mst. Kaniz Fatima v. Muhammad Salim and 27 others (2001 SCMR page 1493).
9. In reply to the arguments of the learned counsel for respondent No,2, learned counsel for the petitioner has contended that respondent No,2 himself has given an undertaking vide order dated 15-8-1992 and 17-8-1992 and now he is estopped by his conduct to raise the objections that no customary right is available to the petitioner for the privacy. He also contends that the petitioner has the customary right in view of the authorities relied upon by him as mentioned above. Learned counsel appearing on behalf of the L.D.A. in reply, has submitted that respondent No,2 is only to obey the conditions imposed in the sanctioned plan.
10.I have heard the learned counsel for the parties and also perused the documents attached with this petition. There is no need to dilate upon the question as to whether the petitioner has a right of privacy and respondent No,2 is bound to abide by the conditions of the agreement/sale- deed between the petitioner and the vendee in the original sale-deed. There is yet another aspect of the case that it the contents of the writ petition are placed in juxtaposition with the averments contained in the para-wise comments, the only irresistible conclusion which can be inferred is that the petitioner has raised factual controversies, which have been denied by the respondent No,2, who have re-bound the matter thereby raising certain other allegations/pleas. Undoutedly, the factual controversies have been raised in the present writ petition, obviously, which cannot be decided without recording the evidence of the parties and the said exercise cannot be undertaken by this Court in exercise of its Constitutional jurisdiction and amply falls within the domain of Courts of the plenary jurisdiction. It is settled law that this Court can, in exercise of its jurisdiction vested in it under Article 199 of the Constitution of the Islamic Republic of Pakistan. 1973. neither enter into factual controversies nor decide disputed questions of facts. Reliance is placed on Muhammad Younas Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Umar Hayat Khan v. Inayat Ullah Butt and others (1994 SCMR 572), Muhammad Ali and another v. Government of Sindh through Chief Secretary and 2 others (1986 CLC 1123) and Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others (2001 SCMR 1493). There is also no need to mention whether the customary law regarding the rights of the privacy is applicable in the Punjab or not because learned counsel for respondent No,2 vide order dated 15-8-1992 has given an undertaking that in fact no privacy is being violated.
Similarly respondent No,1 also made a statement that they would get the windows designed in a fashion which would not affect the privacy in any manner hence this Court directed the Town Planner L.D.A. to appear in this Court. A bare perusal of order dated 17-8-1992 shows that the Director, Town Planning, L.D.A appeared and stated that the plan was sanctioned and all necessary steps were taken to secure the privacy and in this behalf specific windows to the height of 5 feet- were sanctioned. He also submitted that a direction can be issued to respondent No,2 to provide for the louvers. In response thereto, Mian Nisar Ahmad, learned counsel appearing on behalf of respondent No,2 had given an undertaking that "the windows, .specifications whereof, approved by the L.D.A. shall be erected and if any need arises the louvers shall be provided thereon". This Court directed the Director General Planning to visit the spot in order to strictly supervise the construction in ,accordance with the plan sanctioned. Again on 30-3-1993 this Court while noting down that earlier pursuant to the abovesaid undertaking given on behalf of respondent No,1 the Director Town Planning, Lahore Development Authority was directed to visit the spot and supervise the construction to ensure that it was being made in accordance with the specific approved plan had observed that the dispute has arisen whether or not the undertaking has been implemented in letter and spirit. These orders were never challenged and the undertaking given by respondents Nos, and 2 through their learned counsel have not been denied even during the final arguments before this Court. Respondents Nos,1 and 2 are bound by the undertaking given by them that the privacy of the petitioner shall be protected in letter and spirit and the windows and specifications shall be erected if need arises the louvers shall be provided and respondent No,1 has also given the undertaking that the steps will be taken to secure the privacy of the petitioner hence the arguments of the learned counsel for respondent No,2 cannot be considered as he is estopped by his own words and conduct due to the abovesaid undertakings given by him. Respondent No,1 L.D.A. in the comments tiled by him replied to this question and has also stated that the sanction letter issued for the plan of building on Plots Nos,25 and 26 finds mention that he will not provide any windows or doors which may cause adverse effect to the privacy of the adjoining houses. In paras.
5 and 8 the L.D.A. has stated as under-- "The L.D.A. will ensure that windows opening towards property of the petitioner are so designed that his privacy is safeguarded. The matter pertaining to the provision of passage of adjoining Plot No,27 does not pertain to L . D. A .
Para. 8.
It is true that the subordinate staff of the L.D.A. is exerting to safeguard the privacy of the petitioner.
The L.D.A. will try its level best to get the windows so designed that no ever-looking is caused in the adjoining properties."
11. From a bare perusal of the above said undertakings and the reply submitted )y respondent No, I have no option except to dispose of this writ petition with a direction to the respondents to abide by the undertakings given by them during the proceedings of this writ petition respondent No,1 is directed to ensure that to privacy of the petitioner is not affected by the construction which has already been tied. He is also directed to take the necessary steps to implement while ensuring that the construction has been raised in accordance with the site plan hence the Director-General, L.D.A. is directed to constitute a Team headed by the Chief Town Planner and two Senior Deputy Town Planners shall be included in the said team to visit the spot which shall submit a detailed report to the Director General L.D.A. whether the construction has been raised in accordance with the site plan and the privacy of the petitioner is not affected by the construction and that proper steps have been taken to ensure the privacy of the petitioner or not and in case of any violation the Director-General, L.D.A. shall take necessary action to give effect the necessary alterations and changes in the building towards the side of the petitioner's house while affording an opportunity to respondent No,2 to make the necessary alterations accordingly within two months failing which provisions of section 40 of the L.D.A. Act, 1975 shall apply and the respondent-L.D.A. shall proceed to demolish the objected portions of the building in order to secure the privacy of 'the house of the petitioner. This petition is disposed of in these terms. However, I have refrained myself from giving any findings on some of the questions raised by the learned counsel for the parties, lest these findings may prejudice the case of either of the parties in case the petitioner may chose to agitate the matter before the Civil Court. There will be. no order as to costs.
12. Before parting with this judgment cannot lay off my hands without discussing the evading of the stamp duty by the Lahore Regency (Pvt.) Ltd. by using the name of the Cooperative Society.
This Court vide order dated 22-6-1994 noted down that Ch.Abdul Hameed petitioner has sold Property No,SE.27-R-27, Egerton Road Lahore to M/s. Gulberg Enterprises (Pvt.) Limited, Lahore through its Managing Director Khawaja Tariq Latif, at the rate of Rs,1,25,000 per Marla. The area agreed to be sold at This rate was 3 Kanals 18, Marlas and 142 sq.ft. and another area measuring one Kanal, one Marla and 125 sq.ft. was sold at the rate of Rs,1,20,000 per Marla. The sale-deed was executed by Abdul Hameed on 29-3-1989 in favour of M/s. Alliance Industrial and Commercial Cooperative Society Limited, 39-Mozang Road, Lahore, through one Ch.Manzoor Hussain.. No stamp duty was, however, paid on this sale-deed. On the same day another sale-deed was executed by the aforesaid Cooperative Society in favour of Lahore Regency (Pvt.) Limited, again by paying no stamp duty on the said sale-deed under the pretext of sale in favour of the member of the Society.
This Court has noted down that the sale was for Rs,2.50 crores. The documents prima facie relied upon were prepared in order to evade the stamp duty, and prima facie seems that all this has been done to deprive the public exchequer from the stamp duty and prima facie fraud has been committed by doing so. All this has been done in order to avoid the payment of stamp duty hence copy of this judgment shall be sent to the concerned authorities to initiate an inquiry or proceedings against the responsible officers and action shall be taken in accordance with law including the impounding of the documents under the Stamp Act if need be which shall be completed within sixty days from the receipt of this judgment. This order will not be a bar in case any criminal proceedings are initiated against the responsible officer or parties if the facts mentioned in this para. are found correct. The office is directed to send copy of this judgment to the concerned authorities for necessary action and implementation of this judgment.