MUHAMMAD MAHMOOD BAWANI Versus DEPUTY CONTROLLER BUILDING ZONE-B

RANA BHAGWANDAS, J.--- This petition is directed against Sindh High Court order, dated 6-4-2006 dismissing petitioner's constitutional petition and restraining him from undertaking any commercial activity in the disputed premises and directing him to close down the factory. By the same order, High Court appointed Nazir of the Court as Commissioner to monitor that no commercial activity was undertaken in the disputed premises. Petitioner was granted four weeks time to remove the machinery and other equipment by which he has been undertaking commercial activity and to restore the premises for residential use i.e. the purpose for which the lease was granted. High Court further ordered that on removal of such machinery, Karachi Building Control Authority shall undertake the exercise of regularisation of the construction raised by the parties, if applied for.

2. In the memo. of writ petition, petitioner prayed for the following reliefs:--

"(a) This Honourable Court may kindly order for inspection of above petitioner's property to know any illegality about the unlawful construction.

(b) To direct respondents Nos.1 to 3 for illegal and unlawful seal at the plot of petitioner of bearing No.NP-4/53, Kamil Gali, Taj Muhammad Street, Lea Market, Karachi for start of his business and pay the petitioner special compensatory costs for the loss of his business and reputation and also direct respondents Nos. 1, 2, 3 and 5 from illegal and unlawful harassment to petitioner through themselves, their agents, subordinates and/or through any other agency, as the petitioner is a peaceful citizen of Pakistan and belongs to very respected family."

3. Precise grievance of the 'petitioner appears to be that no doubt there was an ice factory established by him in the premises, it did not create any public nuisance and private respondents Nos.6 and 7, who had serious reservations to the commercial activity of the petitioner were now satisfied with the functioning of the ice factory. Another grievance of the petitioner relates to sealing of a portion of the premises by Karachi Building Control Authority without any lawful authority, which compelled him to invoke constitutional jurisdiction of the High Court.

4. On the last date of hearing this petition carne up for hearing when this Court observed that this was not a proper case of entertainment in constitutional jurisdiction of the High Court, as the matter involved roving and elaborate factual enquiry into disputed questions of fact raised by the petitioner and controverted by the respondents. We had expressed our tentative opinion that it was not the function of the High Court to appoint a Commissioner for inspection of the site as initiated by the petitioner for determination of facts on ground and ordered notice to the respondent.

5. We have heard Syed Shahenshah Hussain, learned Advocate Supreme Court for the petitioner, Mr. Shahid Jamil, Additional Controller, Karachi Building Control Authority and Dr. Qazi Khalid Ali, learned Additional Advocate-General, Sindh for the parties.

6. Learned Advocate Supreme Court for the petitioner vehemently urged that inhabitants of the locality have filed affidavits in the High Court to demonstrate that commercial activities carried on by the petitioner do not create any public nuisance as understood by the High Court. He further urged that respondents Nos.6 and 7 have sold out their properties and shifted from the locality to some other place, therefore, it was none of the business or the High Court to ask for removal of the machinery. He also criticised the action of Karachi Building-Control Authority in sealing the demised premsise without any legal justification. Conversely learned counsel for the respondents have seriously questioned the maintainability of the writ petition on the premise that the question involved in the petition called for a roving and elaborate factual enquiry for determination of facts. Mr. Shahid Jamiluddin for K.B.C.A. has drawn our attention to the report submitted by Nazir of the High Court to indicate that the petitioner had constructed mezzanine floor without any permission from the competent authority.

7. Upon hearing learned counsel for the parties and going through the record, we are firmly of the view that this was not an appropriate case for being agitated in the constitutional jurisdiction of the High Court and the writ petition was totally ill-advised and completely misconceived. Since we are of the view that factual controversies are involved in the whole lis, we would refrain from making any comments on the questions raised before us as it would be against the settled principles of law. Indeed this Court is not expected to embark upon enquiry into controversial facts of a case and record its findings in the exercise of extraordinary constitutional jurisdiction, which is only meant for resolving and interpreting pure questions of law. Suffice it to observe that High Court should not have appointed .the Nazir of the High Court as Commissioner nor made unnecessary remarks with regard to regularisation of the building by Karachi Building Control Authority, as it is primarily for all public functionaries to act strictly according to law and within the parameters of the duties and functions prescribed under the statute.

8. Subject to aforesaid observations, we find no ground for grant of leave. Consequently, petition is dismissed.

S.A.K./M-191/SC Leave refused.