AZHAR AHSAN THANVI (Appellant) VS V/S CDGK & ORS (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF

SINDH AT KARACHI

Suit No.1587/2006

Date

Order with signature of Judge

Date of hearing: 19.3.2008

Allied Services

Plaintiff : through Mr.Muhammad Shafi Siddiqui Advocate.

City District Government

Karachi & others

Defendant : through Mr.Tahawar Ali Khan Advocate.

Syed Anwer Ali Shah Advocate.

Mr.Raja Qureshi Advocate

Mr.Mansoor Ahmed Advocate

Mr.Salahuddin Ahmed Advocate

ORDER

KHALID

ALI Z. QAZI.J.- CMA No.9114/2006 This is an application under Order 39 rule 1 & 2 filed by the plaintiff seeks orders restraining 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 or required license for the installation of CNG station and also restrain them from approving the building plan on the Plot No.C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Abul Hasan Ispahani Raod, Karachi and further restrain the Defendant No.6 from installation of CNG Station on the subject plot i.e C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Abul Hasan Ispahani Road, Karachi, and from taking any further steps in this regard until decision of this suit.

Brief facts of the case requisite for disposal of this application is that the Plaintiff is the owner of the Plot bearing No.C-3, measuring 600 sq.yards situated at Karachi Divisional Commissioner Employee’s Cooperative Housing Society Ltd., Abul Hasan Ispahani Road, hereinafter referred to as K.D.C.E.C.H. Society, Karachi.

2.Mr. Muhammad Shafi Siddiqui learned counsel for the Plaintiff stated that the defendant No.6 is alleged to be the owner of Plot No.C-4 situated in the aforesaid Housing Society measuring 600 sq.yds hereinafter referred to as the subject plot. It is further stated that the defendant No.6 Mr.Junaid Naqi Proprietor of M/s. Excel CNG through M.P.G.O (Defendant No.3) has invited public notice with regard to the conversion of the aforesaid plot No.C-4 (Residential Plot) into CNG Station. It is contended that in response to the said notice the plaintiff submitted their objections on 26.9.2005 by delivering a copy at the address of Executive Officer as well as sending the same to all concerned authorities through TCS.

3.Learned counsel stated that plaintiff being owner of the adjacent commercial plot is now planning to raise construction of ground plus six story residential building after its approval by the concerned authorities. The said plot of plaintiff was duly commercialized after following the procedure of K.D.A and Karachi Building and Town Planning Regulations and on 26th October, 198 K.D.A through its Master Plan and Environmental Control Department issued a (NOC) Certificate for the commercialization from Town Planning Point of view. It is further contended that on 31.8.2005 the plaintiff also filed and submitted their objections in response to a public notice for the conversion of plot No.C-4 from residential into CNG. In response to the said letter dated 31.8.2005, K.D.C.E.C.H. Society informed MPGO City District Government Karachi that all members or holders of plot are bound to use the land of the Society as per bye-laws in accordance with the decision passed by the legal bodies of the Society. They submitted their detailed objection to the MPGO for the conversion of the subject plot No.C-4 residential plot into CNG station.

4.Mr.Muhammad Shafi Siddiqui learned counsel stated on 10th April, 2006, the Society issued a letter to the Plaintiffs informing about the objections against the application made by defendant No.6 the owner of Plot No.C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Abul Hasan Ispahani Road, Karachi. It is further stated that again on 10th May, 2006 the Society issued a letter to Junaid Naqi/Defendant No.6 that the conversion of the Plot No.C-4 would be subject to the requisite NOC to be obtained from adjacent plot owners i.e owner of C-3, (plaintiff) and C-12. It is pertinent to point out that both these plot owners have filed their objections against the conversion of residential Plot No.C-4 into CNG. It is further stated that Plaintiff has now recently learnt through reliable resources that the department MPGO have acceded to the request of Junaid Naqi for the conversion of residential plot i.e. Plot No.C-4 into CNG by issuing a letter with Ref:No.I-A/EU/MPGO/CDGK/CNG/2006/240, dated 4.11.2006 addressed to the Secretary K.D.C.E.C.H. Society.

5.Learned counsel contended 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. Firstly 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 passing the objections raised by the Plaintiff have acceded to convert the subject residential plot into CNG Station.

6.In reply to the arguments of Mr.Anwar Ali Shah Advocate for KBCA filed counter affidavit of one Shaikh Muhammad Shahid son of Shaikh Noor Muhammad acting Deputy Controller of Building Gulshan Town-I, KBCA wherein it is stated that it is the case of commercialization of a residential plot No.C-4, Karachi Divisional Commissioner Employees Cooperative housing Society Scheme-33, Karachi. It is stated that as per available record of the KBCA, the plot in question is a residential one and no proposed plan for approval has been submitted before KBCA. The Defendant has arranged site inspection and it has been observed that the plot in question is lying vacant and there is no constructional activity at site. The KBCA shall perform it duties as mandated by law and shall decide the proposed plan, if submitted, as per rules and regulations, and no construction shall be allowed except in accordance with law.

7.Mr. Anwar Ali Shah learned counsel further stated that no approval granted by the defendant No.2 and no violation has been found. In case any violation is found, action shall be taken under the law since there is no violation, no action is required and presently the plot is lying vacant. It is further contended that in view of the above the plaintiff has not made out a prima facie good case for grant of injunction against the defendant No.2 and prayed that the application under reply may please be dismissed

8.Mr.

Tahawwar Ali Khan learned counsel for the CDGK also filed counter affidavit of one Najeeb Ahmed Maher who is working as Addl. D.O in the MPGO Department wherein it is stated that plaintiff has neither prima facie case nor balance of convenience lies in his favor and plaintiff shall not suffer any irreparable loss, if the application under reply is dismissed. It is urged that relief claimed are barred under Section 42 and 56 of Specific Relief Act. It is contended that the Office of MPGO has taken action against as per law and rules and MPGO has not violated Rules & Regulations of KB&TPR-2002 and the NOC for installation of CNG Station on the plot in question is in accordance with the Rules & Regulations. It is further contended that letter dated 4.11.2006 has been issued by the MPGO after receiving the NOC from the Lessor. Fulfilling all the required formalities. Moreover, conversion of residential plot into CNG Station is allowed under KB&TPR-2002. The Society has accepted the conversion of Residential plot into CNG Station and issued NOC in this regard vide letter No.KDCECHS/C4/NOC/CNG/06-66 dated 15.11.2006.

9.Mr.Nadeem Ahmed advocate for the defendant No.6 filed counter affidavit of the defendant No.6 in reply the application under Order 39 rule 1 & 2 CPC, wherein it has been stated that the application under reply has become infructuous. In any event, it is liable to be dismissed inasmuch as the Plaintiff has come with unclean hands and has concealed, from this Hon’ble Court, the fact of his own operation of a CNG station on an originally residential plot only a few yards away from my plot and the Plaintiff has no prima facie case. It is further stated that defendant No.6 has spent millions of rupees in the lawful conversion of plot and he being prevented from conducting himself lawful business activities. It is stated that the balance of convenience is in favour of defendant No.6 and he shall suffer irreparable harm in case the application under reply is allowed.

10.In reply to the arguments of the learned counsel for the defendants Mr.M. Shafi Siddiqui learned counsel for the plaintiff filed affidavit-in-rejoinder and he deny each and every averment raised in the written statement which are contrary to the facts narrated in affidavit and plaint and the application has not become anfractuous as the Plaintiff has sought restraining order of the installation of the CNG Station and this Hon’ble Court in C.P. No.1259/2007, 1255/2007, 1344/2007, & 1126/2007 have already granted interim order and in all those case the alleged procedure has been adopted. It is stated that without prejudice to the above he stated that the entire transaction and procedure carried out is illegal and unlawful and Defendant’s plot is not liable to be converted into CNG plot under the regulations. Originally on 5th April, 2006 Defendant No.5 issued a letter to the Defendant No.6 regarding the conversion of the subject plot. It was categorically submitted in the said notice in para B that on announcement made in daily newspaper on behalf of Society such procedure can be followed. Such public objections were never invited either by the Defendant No.6 or Defendant No.5. It is further urged on 10th April, 2006 Defendant No.5 also issued a letter being an immediate neighbor of Plot No.C-3. The Society/Defendant No.5 on 17th April, 2006 was duly informed by plaintiff and seriously objected such conversion of Plot No.C-4 into CNG plot. The Society on 10th May, 2006 issued a letter to the Defendant No.6 and also forwarded a copy of the said letter wherein they have categorically stated that for the installation of CNG and conversion of Plot into CNG the Defendant No.6 was required to obtain NOC from the adjacent owner in addition to satisfying the Managing Committee and office Society. In addition to the objections of the Plaintiff there are also objection of another adjacent owner of the plot namely Mst.Ayesha W/o Ali Muhammad. It is further submitted that neither the Society nor the competent authority has given any hearing with regard to the objections referred above. It is however very surprising that the Society without following the said procedure as referred in their letter dated 5th April, 2006 regarding the public notice and without hearing the objections of the Plaintiff and other adjacent owners has decided to accept the conversion in respect of Plot No.C-4 for its use as CNG Station. I say that without prejudice to the objection which I have raised regarding conversion of the residential plot into CNG Station which were submitted before the Defendant No.5, Plaintiff also submitted objections with MPGO i.e. Defendant No.3 in response to a public notice regarding conversion of the subject plot. It is pertinent to point out that even the MPGO has not called for the hearing of my objections and hence I was condemned unheard. The license issued by the OGRA categorically specify about the location of the plot and plaintiff vehemently deny that the Plot No.C-4 has been converted into commercial plot at any time. The Defendant No.6 regarding their alleged conversion of the plot has approached the concerned authority i.e. MPGO directly without it being forwarded by the Society. It has been done purposely because the Society has already raised their objections regarding such conversion.

11.It is further stated that on 5th September,2005 the Defendant No.5 also filed their objections with regard to the installation and conversion of a Plot No.C-4, of KDCECHS, hence the Defendant No.6 concealed these facts from the MPGO that the Society i.e. Defendant No.5 reserved their rights so far as the conversion of the plot is concern. The above referred letter dated 5.9.2005 was issued in response to the complaint/letter dated 31.8.2005 issued by the Plaintiff. It is further stated that the Plot of the Defendant No.6 is situated in middle and surrounded by plots of C-5 & C-6 and C-3. The frontage by 10 Ft. after the installation of Gas meters and hence it will not be feasibly or convenient for the ingress and outgress of the vehicles thus will create nuisance in the area.

12.It is contended that there are no CNG Station available which have been situated in the middle of the lane and have the frontage of 60 Ft. All such plots are either of morethan 600 Sq. Yards and corner and if situated in the middle of the lane have the frontage of morethan lane 90 Fts. It is contended that plaintiff has purchased the Plot No.C-7 as commercial amalgamated plot having two sides road and having all commercial venture around and hence the case of the Defendant No.6 is not on the same footing as that of mine. It is pertinent to point out that the area of Plot where Plaintiff is in occupation of C-7 & C-8 has an amalgamated area 1200 Sq. Yards having frontage of 120 Sq. Fts. and it crosses by two roads having width 100 Ft. and 60 Ft. It is convenient in all respect for installation of CNG Station. That immediately behind the Plot No.C-4 where the Defendant No.6 is planning to install CNG there is residential plot owned by Mst.Ayesha who has also raised objections. Whereas the Plaintiff’s plot is surrounded by all commercial ventures having no residential accommodation adjacent to the plot of the Plaintiff and that is why no objections were raised by any one at the time when public objections were invited.

13.It is further contended that in plaintiff’s case all public notices objections were invited by the Society as well as by the MPGO/CDGK and after following the said procedure prescribed by law plaintiff is running Station as allowed by the learned Division Bench. The Defendant No.6’s plot is not liable to be converted. However the Society in contravention of their own Rules and Regulations have decided to accept the conversion fees of plot No.C-4 for its conversion from residential to CNG plot.

14.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.

15.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.

16.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.

17.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.

18.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.9114/2006 is dismissed with no order as to costs. Interim orders passed earlier is vacated.

J U D G E

Karachi

Dated:________________