P L D 2025 Balochistan 54 (PLP)

MUHAMMAD HASHIM KHAN KAKAR, A.C.J.

The instant constitutional petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the following prayer clause: "Under the circumstances, it is most respectfully prayed that the rules and Regulations of the respondents Nos.1 and 6 with regard to conversion of residential area into commercial area and grant of NOC may kindly be declared to be against the law and against the Fundamental Rights of Citizen as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. It is further prayed that the Respondents Nos.1 and 6 be directed to evict/dispossess Respondents from this area as they are running commercial affair in the vicinity of residential area forthwith. It is further prayed that during the pendency of the instant Constitutional Petition, the Respondents Nos.1 to 4 be directed to shift their offices to some other place as they are living on rents. Any other relief that this Honorable Court deems appropriate may also be granted."

2. Brief facts of the case as per contents of the writ petition are that the petitioners are residents of Chaman Housing Scheme and the respondent No.1, (Quetta Development Authority "QDA") is engaged in development of residential and commercial housing societies for the citizens of Quetta and regulated under Quetta Development Authority Ordinance, 1978. The scheme in question was established as a housing scheme on certain terms and conditions, whereby both residential as well as commercial areas were specifically identified and segregated. It is case of the petitioners that on account of mushroom growth of unlawful commercial activities, they are facing multifarious inconveniences and their fundamental rights of free movement and peaceful enjoyment of property have seriously been jeopardized. The petitioners approached the authority for stopping of commercial activities in the residential areas but no heed was paid to the legal demands of the petitioners. Feeling aggrieved therefrom, the petitioners, having no other alternate remedy, adequate and efficacious, have filed the instant constitutional petition.

3. In their comments, the respondents have raised different questions as well as challenged the locus standi of the petitioners in filing the instant writ petition. The relevant part of comments, submitted by respondent No.1 reads as under: "That the contents of grounds A to 1 are jointly replied that in past there was practice of conversion of residential plots into commercial by depositing of necessary fee to the authority, later on it was forbidden/banned regarding conversion by Hon'ble Supreme Court of Pakistan in different cases. Onward the authority is not allowing conversion of residential plot into commercial that the authority has already taken notice of the issue and has summoned the concerned people, the authority welcomes if anybody highlights such issues. The authority ensures that necessary actions will be taken against those who violate the orders of authority."

4. We have considered the contentions advanced by the learned counsel for the parties, and have gone through the entire material placed on record with their assistance. The core issue in this case is, whether the respondents can be allowed to carry out commercial activities in the residential areas of Chaman Housing Scheme. To answer the preposition, it would be advantageous to reproduce herein-below the provision 149(2) of the "Balochistan Building Control And Town Planning Rules, 2022" which furnishes a complete answer: (2) Change of land use of Residential plots: (i) No residential plot shall be converted into any other use except with the approval of the Concerned Authority (The authority should not allow the conversion unless it is very important) (ii) The applicant shall apply and pay necessary fee to the authority for change of land use of the plot with full justification, which shall examine the implication in the light of the planning of the area and forward it to the authority for consideration. (iii) The authority shall also issue a public notice for the change of land and use of the plot/plots in accordance with the provisions of these rules and the expenses shall be borne by the applicant. (iv) The authority, shall give due consideration to the objections from the public before the final decision. (v) The applicant shall pay the prescribed fees and other charges to the authority. (vi) Final NOC (No Objection Certificate) shall be issued by the Concerned Authority, after approval. (vii) Industrial plot cannot be converted into residential and commercial use except for Petrol Pump and CNG station with the approval of the authority on payment of charges. (viii) Residential plot within a residential neighborhood can be allowed to be used for education by the authority after inviting public objection from immediate neighborhood.

5. Besides admission on the part of Quetta Development Authority and issuance of notices to the private respondents for stopping of their commercial activities and shifting of their offices from residential area, not a single document has been brought on record by the respondents to show that any sanction or approval for converting the disputed premises into commercial or any other particular purpose, other than the residence has been obtained. Though the respondent No.1 has annexed the copies of notices with comments regarding violation of QDA regulation by the private respondents yet its perusal shows that the same were issued on temporary basis in the year 2021 and there is nothing on record to show that any penal action was initiated or taken against the private respondents who are involved in commercial activities in the residential area. The record further reveals that the wrong is recurring since long and the concerned authorities of the respondents were negligent and remained kept mum.

6. It is duty of respondent No.1 to provide a complete residential atmosphere to the residents of scheme in question. Due to negligence on the part of authority and non-implementation of the provisions of law and judgments of superior Courts, it is witnessed that a mushroom growth of non-residential and commercial activities in the shape of Offices, Clinics, Guest Houses, Restaurants and Schools etc. have cropped up which has overloaded the domestic facilities meant for residents of the area in the shape of choking of drains, parking of vehicles on roads/streets, traffic congestion, use of extra electricity and gas. The engagement of respondents in commercial activities in residential areas are causing harm to the environment, public health and the general well-being of the community which warrant intervention by this Court to safeguard the interests of the public and ensure compliance with the law.

7. The plea of one of the respondents that a vested right has been created in his favour, as he is occupying the premises for the commercial activity other than the residence, since long or the contention that the answering respondent has been discriminated being singled out, as such commercial activities are going on around the area, is also without any substance for the reason that Article 25 of the Constitution does not envisage any negative equality. Such right can only be claimed when decision is taken in accordance with law. A wrong concession in favour of one person does not entitle any other person to claim benefit of a wrong decision. If such type of activities is allowed, it would seriously impair the use of the property not only of petitioners but of all those who are living in such residential areas. Having considered all the arguments and documents produced by the parties, the petition is allowed and the following directions are issued: (i) The official respondents are hereby directed to cease all commercial activities that are found to be in violation of applicable laws and regulations immediately. (ii) In some cases the conversion has been allowed, which are not permitted by the law, the same be revisited followed by penal actions. (iii) Except the offices of United Nations, whose protection is the primary responsibility of the host country, Government offices and organizations working on charity basis for the welfare of humanity, all commercial activities, mentioned here-in-above, be shifted from the scheme in question after issuance of notices and reasonable time. (iv) Copy of this judgment be sent to all Local Area Authorities of all Townships of the Province. Order accordingly. MQ/43/Bal. Petition allowe