MUHAMMAD SAYYAH-UD-DIN vs DIRECTOR-GENERAL, PESHAWAR

' YAHYA AFRIDI, J.--- Through this single judgment, we propose to dispose of nine Writ Petitions. The particulars of the writ petitions are:---

(1) W.P.No,1690-P of 2014, (Muhammad Sayyah-ud-Din v. Director-General, PDA).

(2) W.P.No,1691-P of 2014, (Subhanullah v. Director-General, PDA).

(3) W.P.No,1692-P of 2012, (Said Muhammad v. Director-General, PDA).

(4) W.P.No,1693-P of 2014, (Gul Wall v. Director-General, PDA).

(5) W.P.No,1694-P of 2014, (Naeemullah v. Director-General, PDA).

(6) W.P.No,1695-P of 2014, (Abdul Hakim v. Director-General PDA)

(7) W.P.No,1696-P of 2014, (Younas Khan v. Director-General PDA).

(8) W.P.No,1697-P of 2014, (Muhammad Naeem v. Director-General PDA).

(9) W.P.No,1698-P of 2014 (Gohaf v. Director-General PDA).

2. The petitioners seek the constitutional jurisdiction of this Court with a common pray that:-- "It is, therefore, humbly prayed that on the acceptance of this Writ Petition, the threatening for closing of guest house will be declared illegal and against the fundamental rights of the citizens of Pakistan as well as those who are coming to Pakistan for taking medical treatment mentioned. It is further prayed that respondents' department may very kindly be directed to provide such plot to the petitioner to construct hotel/residential flats or hostels for the said patients/passengers in Phase-IV or in Phase V Hayatabad Town, Peshawar on the prevailing market value to construct hostels, flats and residential plazas on their own source to provide the said residential facilities to the patients. Any other relief which is not specifically asked for may also be granted in favour of the petitioner and against the respondents."

3. Brief and essential facts of the cases are that the petitioners have established the business letting on hire accommodation, more commonly known as 'Guest Houses', in the residential houses in Hayatabad Township, Peshawar ("Hayatabad") and are thus running commercial activity in dwelling premises allotted and approved for residential purposes; that the petitioners stance is that the respondents Peshawar Development Authority are illegally threatening them to close down their lawful businesses and thereby violating their fundamental Rights; more so, when the petitioners are paying huge taxes to the Provincial and Federal Government and providing accommodation to people in dire need in Hayatabad.

4. 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 School v. Government " (Writ Petition No,1027 of 1996) vide its judgment dated 30-10-2003.

5. 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 8 sheets is placed on the record as Exh.PHC/1'.

6. When the judgment of this Court in "Principal International School's case" (supra) was reviewed, it is noted 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 XIV of 2001, the Khyber Pakhtunkhwa Building Regulations of 1985 ("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 inconsistent with the prescribed use. We have to examine whether the use of the "Residential Building" for establishing schools and 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 visiting the schools and clinics. It is for the peaceful enjoyment of the residences 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 hundreds of students. For the reasons afore stated we have no hesitation in holding that the use by the petitioners of the "Residential Buildings" for running schools or clinics was in violation of the terms of allotment of the plots 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."

7. 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 a 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.

8. 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 Hayatabad Township, Peshawar, and thus, are obliged to apply and enforce the provisions of Khyber Pukhtunkhwa Building Regulations, 1985, for urban planning of buildings and to all building 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 reigns supreme; Wecessitas pablica major est quam private.--- "Public necessity is greater than privata; that is, the necessary requirements of the public good are stronger, and prevail against private or individual necessity or right."

9. Accordingly, for the reasons stated here in above, this Court directs:---

(i) That the petitioners, including others, who have plots allotted as `Residential Building' in Hayat Abad Township, Peshawar, cannot be allowed to carry on commercial activities. However, they be provided 30 days to close down their 'guest houses' .

(ii) That the respondents PDA being a development authority and custodian of urban planning in Hayatabad Township, Peshawar, are obliged to apply Khyber Pakhtunkhwa Building Regulations, 1985, for urban planning of buildings and to all building structures, without fear on favour.

(iii) 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 Exh.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 the contents, specific in the steps taken and the status achieved. With the above observations, these writ petitions are dismissed.

No order as to costs.