WAQAR AHMAD SETH, J:- - Peshawar High Court

36 Pages·2015·0.13 MB·English

JUDGMENT SHEET
PESHAWAR HIGH COURT,PESHAWAR
JUDICIAL DEPARTMENT)

Writ Petition No.2635-P of 2013.

Dr. Zahoor-ul-Haq(cid:28)(cid:28)(cid:28).Versus(cid:28)(cid:28)(cid:28)Govt: of KPK etc.

J U D G M E N T.

th
Date of hearing 10 March 2015.
th
Date of announcement 11 March 2015.
Petitioner (s) by Mr. Azhar Yousaf, advocate.
Respondent(s) by Mr. Rab Nawaz Khan, AAG & Mr.
Sabahuddin Khattak, advocate.

WAQAR AHMAD SETH, J:-
Through this
single judgment we intend to dispose of the instant Writ
Petition No.2635-P of 2013 as well as the connected Writ
Petition Nos.3152-P, 3375-P, 3380-P, 3468-P, 3491-P,
3492-P, 4578-P, 3653-P of 2014 and 47-P of 2015 as
common questions of law and facts are involved in all
these petitions. The relevant facts of each case are given
below:-
2- (WRIT PETITION NO.2635-P OF 2012)
The petitioner is Managing Director of Zahaq
Associates (Private) Limited which is an educational and
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consulting Institution, functioning since 2004 and is
properly registered with Government of Pakistan under
section 32 of the Companies Ordinance, 1984 and more
than 100 students are studying in it. That the petitioner’s
Institution is working on Charity basis and is a non-profit
organisation in Khyber Pakhtunkhwa and is bent upon to
give knowledge/education to the people of KPK in a better
manner as well providing them a chance to go abroad
and get more higher level education in different Countries
by giving consultancy to them. It is averred in the petition
that on 03/10/2013 a show cause notice was issued by
the Municipal Committee University Town, Peshawar
(respondent No.6 herein) directing the petitioner to stop
all illegal and non permissible activities carried out in a
house at University Town which notice is totally illegal and
malafide on the part of the respondents.
3- (WRIT PETITION NO.3152-P OF 2014)
The petitioner is a qualified Doctor by profession
and running a private Hospital which is properly
registered under the law in the year 2012 for which
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premises has been taken on rent at the rate of
Rs.90,000/- per month and there are twenty employees
working there; that Municipal Committee University Town,
Peshawar (respondent No.4 herein) issued notice
regarding the deposit of advertisement charges of sign
boards etc vide notice dated 21/08/2014 and he was
allowed for installation of sign board by respondent No.4
through letter dated 11/02/2014 and that on 16/10/2014
respondent No.4 came to the Hospital and directed the
petitioner to vacate the same house at a spur of moment
and also warned to remove the sign boards etc and
threatened him of sealing the premises of the said
Hospital.
4- (WRIT PETITION NO.3375-P OF 2014)
In the instant petition the petitioner is running a
private Hospital which is properly registered under the law
in the year 2013 for which premises has been taken on
rent basis i.e. Rs.1,50,000- per month and there are
many employees working there. That on 07/11/2014
respondent No.4 came to the Hospital and directed the
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petitioner to vacate the same at a spur of moment and
also warned to remove the signboards etc and threatened
the petitioner of sealing the premises of the said Hospital.
5- (WRIT PETITION NO.3380-P OF 2014)
In this case the petitioner is operating Saloon by
profession in the name of “M/S Jugun Waseem Saloon”
in a rented premises on monthly rent of Rs.170000/- and
on 16/10/2014 respondent No.4 came to the said
premises and directed the petitioner to vacate the same
at a spur of moment,, warned him to remove the sign
boards etc and also threatened him of sealing the
premises and that the respondents advertised/published
notice in the Daily Newspaper “AAJ and Mashriq” on
30/09/2014 for stoppage work and in consequent to it is
bent upon to seal the rented premises.
6- (WRIT PETITION NO.3468-P OF 2014)
The petitioner is the Administrator/Chief Executive
of “HUMZA SURGICAL HOSPITAL” which is providing
health facilities and services to the people for the last
thirteen years and is registered with Health Regularity
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Authority; that a few days back respondents came to the
petitioner’s hospital and tried to illegally seal the same
without any cause on the ground that the petitioner is
carrying on commercial activities in the area which is
prohibited by the Government; and that respondent No.1
issued notice dated 11/11/2014 for vacation of the
premises within seven days and alongwith this notice the
respondents also handed over another notice dated
10/11/2014 wherein the petitioner was advised to attend
the meeting on the subject matter.
7- (WRIT PETITION NO.3491-P OF 2014)
In this case the petitioner is running the business of
“Beauty Parlour” for the last one year in a lawful and
peaceful manner without any complaint whatsoever from
the Government or public at large especially from the
residents of the locality and that all of a sudden the
petitioner received notice dated 11/11/2014 from
respondent No.2 for closure of the business and vacation
of the premises.
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8- (WRIT PETITION NO.3492-P OF 2014)
In this case the petitioner is running the business of
“BEAUTY PARLOR” for the last two years in lawful and
peaceful manner without any complainant from the
Government or the public at large especially from the
residents of the locality and all of a sudden she received
notice dated 11/11/2014 from respondent No.2 for closure
of the said business and vacation of the premises.
9- (WRIT PETITION NO.3548-P OF 2014)
The petitioner is running the business of “hair
transplant and hair repair” for the last about eleven
years in lawful and peaceful manner without any
complainant from the Government or the public at large
especially from the residents of the locality and all of a
sudden she received notice dated 11/11/2014 from
respondent No.2 for closure of the said business and
vacation of the premises.
10- (WRIT PETITION NO.3653-P OF 2014)
In this case the petitioner is owner of House No.43-
D-II, Old Jamrud Road, Peshawar and running a business
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of “Import-export” and distribution of Medical
equipments; that on 26/09/2013 the respondents sealed
the property of the petitioner illegally, unlawfully and
without lawful jurisdiction and also disconnected the
electricity, Gas and water supply connections but in the
light of the orders of August Supreme Court of Pakistan
the property was un-sealed and all the connections were
restored and after rejection of Writ Petition No.1578-
P/2012 by the Apex Court, respondent No.1 issued notice
to the petitioner dated 11/11/2014 to vacate the premises
within seven days.
11- (WRIT PETITION NO.47-P OF 2015)
In this writ petition, the petitioner is running the
business of “SCHOOL” for the last ten years providing
best services to the public at large, in lawful and peaceful
manner without any complaint whatsoever from the
government or public at large especially from the
residents of the locality and that all of a sudden
respondent No.2 tried to close the said business and
vacate the premises.
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12- Arguments heard and record perused as the
learned counsel for the parties are adamant for earlier
disposal of these cases.
13- In all the writ petitions, the petitioners have
challenged the Advertisement dated 30/09/2014
published in daily Newspapers “Aaj & Mashriq” as well
as notice dated 11/11/2014 issued by Chief Municipal
Officer, Municipal Committee University Town, Peshawar
wherein it was mentioned that they have started
illegal/non permissible commercial activities in the
residential House/premises of University Town Peshawar
which is sheer violation of Local Government Act, 2013,
Building Laws/bye laws and orders of Peshawar High
Court Peshawar and apex Supreme Court of Pakistan as
well and they are directed to vacate the premises within
seven days after that no excuse shall be
entertained/acceptable in this respect.
14- Record is suggestive that not even a single
document has been annexed by any petitioner showing
that any sanction or approval for converting the disputed
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premises in to commercial or for any particular purpose,
other than the residence has been obtained, even any
request made on behalf of the occupant, in this behalf has
not been shown or placed on record. In some of the writ
petitions utility bills have been enclosed, showing that
these utility bills are in commercial tariff and NOC was
issued by the respondent’s/authority, but no such NOC
has been annexed with the writ petitions nor was
produced at the time of arguments. In some of the writ
petitions petitioners have annexed notices regarding
advertisement charges contending that the University
Town Committee, was charging for commercial bill boards
/ advertisement board and as such impliedly, they are
using the premises for commercial purposes with the
consent of respondents/authority. Perusal of these
notices would show that these notices were issued on
temporary basis and the same pertains to the year 2013,
when tax was imposed upon such types of signboards,
but admittedly there is nothing on record to show that any
competent authority, or authority of the respondents,
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whether lawful or otherwise, had ever given sanction or
any request was processed, in this respect.
15- Record is further suggestive that the wrong is
recurring since long and the concerned authorities of the
respondents were negligent since from the beginning and
specially from 2002/2003, when for the first time notices
to the number of schools and other occupants who were
using the residential premises for the purpose other than
residence were issued. These notices were challenged in
five different writ petitions by number of petitioners and
the same were decided by this court in writ petition No.
676/1199, vide judgment dated 30.10.2003 and the said
judgment was never ever challenged before any forum
and the same has attained finality but even then, the
respondents/department kept mum, which in-fact is a
criminal negligence on their part and in this respect,
recommendations would be made later on in the
judgment.
16- In the above referred writ petitions and judgment
dated 30.10.2003, two types of notices were issued by