ALI MUHAMMAD NOHRIO & ORS (Appellant) VS V/S CDGK & ORS (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF

SINDH AT KARACHI

Suit No.1447/2007

Date

Order with signature of Judge

Date of hearing: 19.3.2008

Ali Muhammad Nahrio Ors.

Plaintiff : through Mr.Imtiaz Agha Advocate.

City District Government

Karachi & others

Defendant : through Mr.Tahawar Ali Khan Advocate.

Mr.Iqbal Memon Advocate for KBCA.

Mr.Raja Qureshi Advocate

Mr.Salahuddin Ahmed Advocate

ORDER

KHALID

ALI Z. QAZI.J.- CMA No.9249/2007 This is an application under Order 39 rule 1 & 2 filed by the plaintiff seeks orders restraining against the defendant No.5 and/or anybody else claiming or acting through or under them from installing a CNG station at the plot bearing No.C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Abul Hasan Ispahani Raod, Karachi and further restrain the Defendants i.e District Coordination Officer, Oil & Gas Regulatory Authority, and Karachi Building Control Authority, and / or anybody else claiming or acting through or under them from issuing the requisite license for the installation of CNG Station and also restrain them from approving the building plan of CNG Station on the Plot NO.C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Abul Hasan Ispahani Road, Karachi, until decisio of this suit.

2.Brief facts of the case requisite for disposal of this application is that the Plaintiffs are the owners of the Plot bearing No.C-12, situated at Karachi Divisional Commissioner Employee’s Cooperative Housing Society Ltd., Hasan Ispahani Road, measuring 600 sq.yards hereinafter referred to as the plaintiffs plot. The plot was originally allotted to one Mr.Ali Muhammad Nohrio however after his sad demise the property was devolved in Plaintiffs No.1-a to 1-e who are the widow, sons and daughters of deceased Ali Muhammad Nohrio. The defendant No.6 claimed to be the owner of the plot No.C-4 situated in the aforesaid Housing Society and also measured approximately 600 sq.yards hereinafter referred to as the subject plot. Vide letter dated 10th April, 2006 the Society i.e. Defendant No.6 wrote a letter to the plaintiffs inquiring about the NOC for the operatio of the CNG Station on the subject plot or in the alternate to tender the objections against the application made by the owner (Defendant No.5) of Plot No.C-4. On 24th of April 2006 the Plaintiffs tendered the objections to the Society within the time and on 28th April, 2006 Plaintiffs again tendered the objections to the EDO Master Plan C.D.G.K Civic Centre, Karachi mentioning that the plaintiff have serious objection against the alleged installation of CNG Station on the plot which is adjacent to the plot of the Plaintiffs and divided by a common boundary wall. The Plaintiffs intend to construct house at the said plot which is purely residential. It was contended that the residential status of the area and the safety of the occupants and residents of the area would be seriously effected in case the defendant No.5 is allowed to install a CNG Station. On receipt of the said objections, the Society i.e Defendant No.6 issued letter to the Defendant No.5 mentioning that under the procedure and under the law it is necessary that the NOC from the adjacent owners of residential plot in addition to satisfying the managing committee of the Society be obtained apart from the objections from the General Public which would be invited by public notice by the Society. The plaintiffs have now recently learnt through reliable resources that the defendant No.5 has got the permission for the installation of the CNG Station at the subject plot. It is alleged that the Society never invited the public objections nor the plaintiffs were heard in respect of the objections which were submitted in terms of the annexure annexed with the plaint. Neither the Society nor defendant No.1 and 3 heard plaintiff in respect of their objections which were submitted well before time. Under the law it is mandatory to call the objectors for hearing of their objections.

3.Mr.Imtiaz Agha learned counsel for the plaintiff stated that the alleged conversion of residential plot into CNG Plot is in total violation of the procedure laid down under Karachi Building & Town Planning Regulations. At the very outset the objections filed by the plaintiff were not taken into consideration and in fact they are still pending for hearing and the concerned authority by ignoring the objections raised by the plaintiff have acceded to convert the subject residential plot into CNG Station which rendered the conversion as illegal and unlawful. Even otherwise the regulations does not provide the conversion of the subject plot into CNG Plot. The subject plot is situated in the residential area and is located around residential plots and as such it would be highly unjustified if such conversion is allowed or the defendant No.5 is allowed to install CNG Station on the subject plot.

4.It is further urged that the law related to the conversion plot into CNG Station have been introduced by Karachi Building & Town Planning Regulations and it provides no scope or room for the conversion of said plot into CNG plot. Recently the proposed amendment clarifies that the area of the plot upon which the CNG Station could be installed should not less then 750 sq.yards and that the minimum distances the two CNGs Station should not be less then 0.75 miles. One CNG Station is already functioning at a distance of less then 0.75 miles in the same lane and the other is in opposite side, which is also less than prescribed distance. The MPGO in total violation of the rules and regulations made by KBCA has denied the hearing of objections which is an integral part of these regulations to be followed prior to conversion of subject plot into CNG Station.

5.In reply to the application under Order 39 rule 1 & 2 CPC Defendant No.5 filed counter affidavit wherein it is stated that defendant No.5 is the owner of the said plot bearing No.C-4 and the Defendant No.6 is the Housing Society in which the plot of Defendant No.5 is situated. After due execution of a conveyance Deed dated 23.7.2005 the property was transferred in favour of Defendant No.5 by the Defendant No.6 authorities and it was earmarked as a commercial plot bearing No.C-4. The defendant No.5 is the owner of the said plot bearing No.C-4 and the Defendant No.6 is the Housing Society in which the plot of Defendant No.5 is situated. After due execution of a conveyance deed dated 23.7.2005 the property was transferred in favour of Defendant No.5 by the Defendant No.6 authorities and it was earmarked as a commercial plot bearing No.C-4.

6.Learned counsel contended that the plaintiff had tendered objections to the Defendant No.6, opposing the installation of a CNG station at the subject plot. it is added herein that the Defendant No.5 had initially applied for a NOC for the installation of a CNG station at the subject plot and the request of the answering Defendant was acceded to by the Defendant No.6 subject to removal of objections/issuance of NOC’s from the concerned quarters vide it letter dated 10.5.2006. it is added herein that two individuals were named within this letter of the defendant No.6 bearing one Mr.Azhar Thanvi and Ms.Asiya. in response to the above mentioned correspondence the answering Defendant addressed two separate letters dated 24.5.2006 and 19.6.2006 to the defendant No.6 stating that the said plot was on the main road and had been duly converted to a commercial plot keeping in view the CNG Bye laws of KDA MPGO and KBCA. It was also highlighted by the Defendant No.5 that Abul Ispahani Road is fully commercialized and there are already three CNG stations operating one which is two plot away from the subject plot. It was also stated by the defendant No.5 that one of the objectors was in fact the owner of a CNG station which is two plots away from the subject plot hence the objections were unfounded. It is further urged that Ministry of Petroleum & Natural Resources, Policy Wing issued a direction dated 24.6.2006 titled “problem faced by Compressed Natural Gas (CNG) industry - Rational for involvement of various agencies for granting clearance for installation of CNG station”. Clause (II) of the said direction stated” for installation of stand alone CNG station at raw site / new locations, NOC’s only from the following authorities be obtained: Gas utility company, Department of explosives, Civil Defense, Tehsil Muncipal Officer, and third party certification from HDIP including reputable Private Sector company of high standards. In pursuance of the above mentioned direction from the Ministry of Petroleum and Natural Resources, a letter was addressed by the Defendant No.6 to the Defendant No.5 dated 31.7.2006 titled “NOC for installation of CNG station”. Through this letter the Defendant No.5 was intimated by the Defendant No.6 that keeping in view the new policy decision of the Ministry of Petroleum and Natural Resources there was no longer a need for NOC from the Defendant No.6, hence the defendant No.5 was free to proceed with the installation of the CNG station at the subject plot.

7.It is contended that Defendant No.5 was also directed by the Defendant No.6 vide its letter dated 9.10.2006 to furnish a sum of Rs.12,00,000/- as conversion fee in respect of the subject plot. The defendant No.5 made the requisite payment through two separate pay orders dated 11.10.2006 and 14.10.2006. After the payment of the said conversion fee the defendant No.6 was pleased to grant an NOC in favour of the Defendant No.5 on 14.10.2006. Keeping in view the directive of the Ministry of Petroleum and Natural Resources, the Defendant had already obtained the due NOC from the Defendant No.6 for installation and had also obtained license from the Oil and Gas Regulatory Authority, being Defendant No.4 on 12.10.2005. He was granted an NOC for the conversion of the said plot for CNG station utilization by the EDO (Revenue), CDGK on 16.11.2005 the defendant No.5 was also granted valid NOC from the competent authority Master Plan Group of Offices, CDGK being Defendant No.3 upon payment of Rs.18,50,000/- for the conversion of the said plot. lastly a permission was also granted by the Explosives Department, Ministry of Industries, Government of Pakistan on 8.5.2007 as per the Federal Government policy dated 25.6.2006 after duly obtaining NOC dated 19.2.2007 for such purpose from the District Coordination Officer, CDGK. Hence the defendant No.5 had legally obtained all required NOC’s from all the requisite authorities who granted such NOC’s only after due examination of all objections keeping view that the CNG station was proposed to be constructed on a duly commercialized plot and also the safety of all residents within the vicinity of the station, including the current plaintiff.

8.It is contended that Defendant No.6 had communicated the objections of the plaintiff to the Defendant No.5 and Defendant No.5 had evidenced the malice on part of the objectors and the same was granted due NOC from the Defendant No.6 once it had examined the objections and safety of the plaintiff he also highlighted that the subject plot is a commercial plot which is facing Abul Ispahani Road whereas the plot of the plaintiff is facing the back lane. The plot is situated on a road which is entirely commercial and also includes CNG station, this is evidenced by the Nazir report dated 30.12.2006 in suit bearing No.1587/2006 which is a identical suit concerning the same claim. Defendants and subject property the plaintiff has not raised any objection in respect of the CNG station which is already operation all two plots away from the plot of the answering defendant. The defendant No.6 had duly examined the representations of the plaintiff as well as that of the defendant No.5 and keeping in view that there are 3 CNG stations already operating on the main road and the subject plot is a commercial plot, the defendant No.5 was granted the NOC for installation of a CNG station at the subject plot. It is further contended that as per directions of the Federal Government dated 24.6.2006 there is no express requirement to obtain NOC from the current plaintiff.

9.It is urged that conversion of the said plot has been done legally keeping all laws and procedures set out by the Karachi Building & Town Planning Regulations. The said conversion was done keeping in view that Abul Ispahani Road is a main Road which is a commercial strip in its entirety and there are 3 other CNG stations operating right next to those of the Defendant No.5. Additionally, the conversion was based on NOC’s being obtained by all requisite authorities and payment of all fees by the defendant No.5. The MPGO CDGK Town Planning has followed all requisite requirement as far as procedure is concerned by inviting public objections by publications in the Daily Time and Daily Jasarat dated 30.8.2005. It is further contended that a learned Divisional Bench of this Court has ruled in Constitutional Petitions bearing Nos.1443/07, 1126/2007, 1255/07, 1259/07 and 1906/06 dated 7.12.2007, wherein the subject matter is the same as the current claim of the plaintiff, that the said peititoners were required to approach the competent authorities under the OGRA ordinance 2002 as well as Karachi Building and Town Regulation 2002 for redressal to their grievances. Keeping in view that the plaintiff has not approached the converned authorities the suit is no longer maintainable and the plaintiff can not seek relief from this Court.

10.It is further urged that the plaintiff has not disclosed the fact that various detailed studies have been conducted by various reputable international organizations who have arrived at the conclusion that CNG gas is not hazardous because the same is not even marginally flammable relative to petrol gas. It is further stated that the said plot of the plaintiff is an open plot which faces the inner lane whereas the subject plot is facing the main road where there are three CNG stations operating currently. Thus the contention of the plaintiff that the operating of a CNG station is unsafe is unfounded.

11.It is urged that the subject plot has been duly converted into a commercial plot keeping in view all the law and procedures laid out in the Karachi Building and Town Regulations after due examination of the locality and payment of requisite fees. There is an admission by the plaintiff that there are CNG stations operating in the locality which proves that the claim of the plaintiff is tainted with malice. The proposed plan mentioned by the plaintiff has not been drafted on 07.07.2007 whereas the subject plot had been converted by the requisite authorities in year 2006, hence the law (if enacted) cannot be allowed to have any retrospective effect on the plot of the defendant No.5. In any case the proposed law has been incorrectly cited and as per the proposed because the required distances between two station is 0.46 miles and not 0.75 miles and has been wrongly canvassed by the plaintiff. As per CNG bye laws clause 25-12.8, clearly states that CNG station is allowed only on roads having at 60 feet width in case of commercial and industrial plots and 100 ft in case of residential plots. Since Abdul Ispahani Road is over 100 feet wide, no defect lies in the conversion of the said plot and there is no violation of any law or procedure by the MPGO.

12.I have heard the learned counsels for the parties and perused the record and relevant case law cited by the learned counsel for the parties.

13.It is a matter of record that Abul Hassan Isphani Road whereupon CNG filling station proposed to be constructed has been in use as commercial and almost all the residential plots have been converted from residential to commercial including the plot belonging to the Plaintiff after making the payments of requisition commercialization fee to the defendants. It is also matter of the record that various commercial activities are already being carried out on the same road which included the CNG station as well but the Plaintiff raised no objection in respect of the other plot on the same road. It seems that the Plaintiff has got no legal character, right or status in the property in question and may hit under Section 42 of Specific Relief Act. It is pertinent to mention that all permission NOC and licenses have been obtained by the defendant No.6 after substantial violation of any rules, regulation and law has been made and in my tentative assessment no cause accrued to the third party. Reliance may be placed on PLD 2007 SC 472, 2008 SCMR 133, 2004 CLC 767 and 1984

CLC 340.

14.It appears that CNG stations and petrol pumps are located in every residential area as well as residential / commercial industrial areas. Even adjacent to schools, commercial plazas etc. in addition to Pakistan, CNG stations are common in USA, UK, Canada, China, India, Itly, Argentina, Brazil etc. and vehicle run on CNG in all such countries. According to research, CNG is most environmentally friendly, safe and economical fuel source in the market today. It has been hold in Rehmat Petroleum Service case (PLD 2006 Lahore 339) in identical case that no restriction thereto could be read into the law in the absence of a specific provision in the law regulating or otherwise applicable to such trade, business or profession as right to carry on business, trade or profession is a fundamental right guaranteed by article 18 of the constitution of Islamic Republic of Pakistan, 1973.

15.It is well settled proposition of law that relief of Injunction is discretionary and Court is not bound to grant it in every case and it is not to be granted unless the Court is satisfied as to its real need. The discretion is to be exercised in accordance with reason and sound judicial principles. Court while dealing with application for grant of injunction has to look and to assess all the circumstances obtaining in suit and more so, to equitable relief. Discretion vested in a Court of law has to be exercised judicially and equitably ensuring all the times, that the twain of law and justice are adequately applied and administered. Reliance may be placed on 2000 SCMR 780.

16.At present, presumption as required under illustration of Article 129, Qanun-e-Shahadat Order, 1984, can be raised that official acts have been regularly performed. However, the contentions raised by the parties require deeper appreciation of evidence, which can be properly thrashed out at the time of trail. From the tentative assessment of material available on the record, I am of the considered view that the Plaintiff has no prima facie case at this stage. The balance of convenience is also not in favour of the Plaintiff as great inconvenience will be caused to the owner of the subject property in exercising his legal rights to deal with the property as per law. No irreparable loss will be caused to the Plaintiff, if injunction is refused because the loss, if any, can be compensated in the shpae of damages.

In the light of what has been discussed above, the CMA No.9249/2006 is dismissed with no order as to costs. Interim orders passed earlier is vacated.

J U

D G E

Karachi

Dated:________________

IN THE HIGH

COURT OF SINDH AT KARACHI.

SUIT No.156/1986

Ex.No.77/2004

Mst. Kulsum Bai________________________________ Decree / Holder

Versus

Farhat Gul ________________________________ Judgement / Debtor

To,

The

S.H.O

Shah Faisal Colony

Karachi.

Sub: WRITE OF POSSESSION IN SUIT

NO.156/86 IN EX.NO.77/04

The writ of possession order has been issued in this case, which will be effected by the bailiff of this Court. The bailiff who is allowed police protection and concerned police is directed to assist the bailiff in complying with the Order vide Court order dated 31.3.2008 by the Judgment Debtor in Execution of the Writ of Possession.

You are hereby directed to provide police force alongwith ladies searchers to the bailiff of this Court to carry out to the Courts Order peacefully.

N A Z I R