Abdul Wajid etc Vs TMA etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Writ Petition No.2820-P of 2018 Abdul Wajid & others Vs.

Tehsil Municipal Administration & others

JUDGMENT

Date of hearing: 24.10.2019

Hafiz Fazal Raheem, Advocate, for petitioners.

Mr. Ijaz Ali Khan Advocate respondent No.1 along with Mr. Shahbaz Khan, Admin Officer, TMA Razzar, District Swabi.

AHMAD ALI, J.- Through this Writ petition petitioners are seeking following relief:

It is, therefore, most humbly prayed that on acceptance of this Writ Petition:

i. Direct the respondents to re-install the Billboard of the petitioners which were duly distorted by the respondents.

ii. Restrain the respondents from damaging the billboard of petitioners in future.

Any other remedy which deems fit by this Hon’ble Court may also be granted in favour of petitioners.

2.Facts essential for the disposal of present writ petition are that the petitioners are owners of some hording/ billboard within the precinct of TMA Tehsil Razzar, district Swabi; whereas, petitioners No.1, 2 & 3 jointly run the business in the name & style of ‘Swabi Flax’ while rest of the petitioners have their separate business and they were running their business per satisfaction of the TOR. However, respondent No.1 without informing petitioners and without giving them an opportunity of explanation or show cause, started operation against billboards and removed the same despite the fact that petitioners were paying tax to the contractor of TMA namely Sher Ali son of Jafar Khan.

Thus, petitioners filed present writ petition seeking supra relief.

3.The respondent No.1 filed comments wherein he asserted that petitioners installed heavy billboard on the road sides without any permission from any government authority. Said board were permanent danger for the general public and being installed at government property

without any NOC the same were illegal and thus rightly removed.

4.The respondents No.2, Sher Ali Khan, the contractor, filed his comments wherein he commented that the petitioners made default in payment of the tax and therefore a recovery suit filed by him against petitioner No.1 is pending besides TMA also lodged an FIR against the petitioner No.1.

5.Learned counsel for the petitioners argued that respondents without any prior intimation to petitioners removed their billboard causing a severe monetary loss to them. So many people were attached with the business of billboard who by the act of respondents have lost their source of income. That petitioners were paying taxes regularly to the respondent No.2 and therefore it was their constitutional right to carry on their business.

Respondents were required to at least provide petitioners with an opportunity to explain their position but they have been condemned un-heard which resulted into heavy loss to them.

6.Conversely, the learned counsel for respondent No.1 argued that the hoarding boards were squarely

illegal and unlawful, these were installed at public placed without any NOC or any other sort of permission from the competent authority. These boards were installed without proper workmanship and care and thus same were hazardous to human lives particularly during strong wind and storms. He maintained that payment of alleged tax to the respondent No.2 does not legalize the status of billboards installed without any legal permission.

7.Heard the learned counsel and perused the available record.

8.After sifting the record minutely, it becomes undeniable that there was absolutely no permission from any government authority regarding the installation of billboards and NOC was also not obtained for any public authority. Petitioners are not fair and impartial in their claim as “He who seeks equity must do equity”. There is no cavil with the preposition that due to strong wind and storms there remains every risk of falling hording boards over passers-by and per maxim “Salus populi est suprema lex” (The public safety/welfare is the supreme law) and also that “Jura publica anteferenda privatis juribus” (Public rights are to be preferred to private

rights). Photographs of removed billboards, annexed with the writ petition, reflect that billboards were uprooted from the earth and same were not destroyed. Even otherwise any loss if sustained by petitioners cannot be taken into account for the sake of interests of general public. Dozens of billboards were installed within the jurisdiction of TMA Razar without NOC or other permission and as such “Injuria non excusat injuriam” (A wrong does not excuse a wrong). This means that a wrong does not justify another. No one is entitled to take the law into his own hands, and if a person commits a wrong, the wrong which he suffered will not excuse or exculpate him from the consequences of his wrongdoing.

9.The High Court is exercising discretionary and equitable jurisdiction under Article 199 of the Constitution. It is well-settled that the jurisdiction of the High Court under Article 199 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court to reach injustice wherever it is found. Petitioners have not come to the court with clean hand and equity demands, “He who comes into equity must come with clean hands”.

10.The facts of the present case did not deserve interference by this Court in exercise of equitable jurisdiction under Article 199 of the Constitution.

Therefore, this writ petition is dismissed with no order as to costs.

Announced

SENIOR PUISNE JUDGE

JUDGE

DB Mr. Justice Qaiser Rashid Khan and Mr. Justice Ahmad Ali