' SARDAR MUHAMMAD RAZA KHAN, J.--- Mr. A. Razzak Adamjee and his brother Mr. Abdul Hamid Adamjee, both residents of Block 9, K.D.A. Scheme No,5 Clifton, Karachi have filed this appeal after leave of the Court against the judgment, dated 31-12-1992 of a learned Division Bench of High Court of Sindh, Karachi passed in High Court Appeals Nos.55 and 58 of 1991 whereby the appellant's suit filed against Messrs Datari Construction Company (Pvt.) Limited was dismissed.
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2. The respondents Messrs Datari Construction Company are raising a multistoreyed building in Clifton Karachi on the location detailed in the pleadings of the parties. At present three storeyes thereof are completed. The appellants brought a suit that the defendant No,1 was not entitled to commercialize the plot in the Clifton Area as it would cause a public nuisance through over- population and would shatter the calm and peaceful atmosphere of the area known as Kehkashan, K.D.A. Scheme No,5. A permanent injunction was also sought to the above effect. The suit also contained the endorsement and permission of Advocate-General, Sindh Karachi within the contemplation of section 91 of the C.P.C., Karachi Building Control Authority was arrayed as defendant No,2.
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3. The plaintiffs own residential premises are in Kehkashan, like few others mentioned in annexure-1 to the plaint. Defendant No,2 in the year 1982 decided to permit commercialization of the area. In the end of May, 1988, the plaintiffs came to know that defendant No,1 had been granted permission to commercialize an amenity plot measuring 3546.66 square yards with shops on the ground floor and flats on the upper floors on Plot No,G-19 Block No,5. The construction being immediately opposed to Plot No,G-7, Block 9, K.D.A. Scheme No,5 owned by the plaintiffs, the latter issued a notice to Karachi Building Control Authority (defendant No,2) under section 20-A of the Sindh Building Control Ordinance,. 1979 asking the defendant to reject the plan submitted by respondent No, 1 . The plan was withdrawn which led to some litigation. The long and short of the matter is that the construction was finally allowed and hence this suit based on the ground that it would cause public nuisance and that the permission to construct a high-rise building was by itself a violation of the rules.
4. The suit was contested by defendant No,1 on grounds of maintainability, that it was bared under the Specific Relief Act, that Karachi Development Authority was not impleaded as party and the plaintiffs were disentitled to sue on the principles of estoppel, waiver and acquiescence. It was denied that Clifton was planned entirely as a residential area. It was contended that the allegations relating to alleged over-population, traffic hazards, bad roads, congestion, smoky/polluted environment, adverse sanitary conditions, break down of essential services like electricity, gas, telephone, water and security problems and the break-up of clam, and peaceful atmosphere were the matters of the exclusive concern of Karachi Development Authority, Karachi Municipal Corporation and the Government of Sindh whose duty it was to provide basic infrastructure. These and other pleas in the written statement gave rise to 9 issues framed by the Court presided over by a learned Single Judge of Sindh High Court who ultimately held at the close of trial that the construction in question to the extent of hollow plinth ground floor plus five storeyes thereon was in order and did not call for any interference. The construction of additional 6th and 7th floors approved by the Director-General, K.D.A. On 26-5-1988 was declared unlawful and violative of pubic and private easements. The aforesaid decision was challenged before a learned Division Bench of Sindh High Court which, through the impugned order, dismissed the plaintiffs suit in toto and hence this appeal.
5. Leave to appeal was granted to consider:--- "(1) Whether in a case of public nuisance, for which permission under section 91, C.P.C. Has been obtained, absolute nuisance has to be established and the suit has to be in representative capacity?
(2) Whether the decision given in Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237 which is the subject-matter of C.P.L.A. No,88-R of 1993 is not in conflict with the impugned judgment before us?
(3) Whether the departure from the zoning Regulation was justified in case in hand?"
6. Leave to appeal was granted on 29-8-1993 and the instant appeal arising out of Civil Petition No,78-K of 1993 was proposed to be heard along with appeal arising out of Civil Petition No,88-R of 1993 where some conflict was said to have occurred between the impugned judgment and PLD 1993 Kar.
237. A larger Bench of more than three Judges was suggested and in fact constituted. The larger Bench heard the matter but on 28-4-1999 the instant Appeal No,556 of 1993 was de-linked from the aforesaid appeal on the ground that the instant case merely involved the question of pubic nuisance and the appreciation of evidence thereabout. The second point on which the leave was granted is left to be decided in the relevant appeal whenever it comes up for hearing.
7. In the instant case manifold questions are raised in the plaint involving public nuisance, implication of section 91, C.P.C. Commercialization of the plot and the lawful use to which an amenity plot can be put to including some ancillary matters arising out of the combination of all the points. We would first take up the question of public nuisance.
8. Public nuisance, with reference to the provisions of General Clauses Act, 1897 as far as applicable to a case of the nature in hand, is defined by section 268 of the Pakistan Penal Code as follows:--- "268. Public nuisance.--- A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
' A common nuisance is not excused on the ground that it causes some convenience or advantage."
9. From the plain reading of the section, difference seems to be prevalent between a public nuisance and a private nuisance. In a public nuisance the act done by a defendant is supposed to be primarily illegal whereas in a private nuisance, even a legal act could cause injury, danger or annoyance to another person. The very opening sentence of the section presupposes that a person can be held guilty of a public nuisance only when any act or omission done by him is illegal.
The doing of any act or being guilty of an illegal omission are joined in the section by conjunction :or' which preconditions the act as well as omission with illegality.
10. It is in the light of the above conclusion that we would see as to how far the act of the defendant is in any manner illegal. The plot in question is provenly a residential plot and was allotted, as such, by the authorities. The construction of five storeyes was already allowed while two additional storeyes were permitted by the authorities exercising power on the basis of a resolution dated 25- 10-1981 available at pages 45 to 66 of Paper Book II. This aspect has thoroughly been discussed by the learned Judges of Sindh High Court exercising Original as well as Appellate Jurisdiction. The act of the defendant can by no means be dubbed as illegal and thus falling within the mischief of section 268 of the P.P.C. In the absence of any illegal act attributable to the defendant, we are afraid, the provisions of section 268, P.P.C. Are not attracted to the facts and circumstances of the present case.
11. The allegation against the defendant is that he has converted an amenity plot into a commercial plot which, under the law could neither be done nor permitted. Section 52-A of K.D.A.
Order No,V, inserted by Sindh (Amendment of Laws) Ordinance 1974 (XVII) of 1974 specifies amenity pint as those reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or such other purposes . None of the above conditions are in any manner attracted to the nature of the plot in dispute which, right from the beginning, existed and was allotted as residential plot. Even today it is being used by the defendant as residential plot by constructing residential flats thereon. The learned couasel for the petitioner almost at the end of arguments candidly conceded that the plot in question is not an amenity plot.
This aspect of misuse or illegality also loses significance.
12. The next allegation, which seems to be dominant in the plaint is that of commercialization of plot. When once it is alleged that a defendant is commercializing the plot or the authorities by violating the rules on the subject accorded permission for commercialization, one can presume that the plot from the very inception was either amenity plot or a residential plot but is being illegally converted by the defendant into a commercial plot by raising a commercial building thereon. These entire allegations are totally 'refuted by the documentary record on file. The defendant has down right denied the commercialization of the plot. The written statement and the entire evidence on record clearly establishes that defendant neither applied for commercialisation of Plot No,G-19, Block 5, K.D.A. Scheme No,V, Clifton nor any such permission was granted to him by the authorities. It has already been observed, as per pleadings and evidence of the parties, that the defendant is constructing residential flats on the plot in question so much so that during trial Mr. Liaquat Merchant, learned counsel for defendant No,1 gave an undertaking that he would rot even apply for commercialization of the plot. Such construction cannot by any stretch of imagination be termed as commercialization. This assertion also fails and any eventuality of illegal resort to commercialization is ruled out.
13. In the instant case the learned Advocate-General also happens to have signed the plaint within the contemplation of section 91 of the C.P.C. At times, it gives an impression or such impression may be taken, that the association of Advocate-General by itself attaches sanctity to a case of public nuisance. Learned counsel for the petitioner was of the view that it should be given due weight while the learned counsel for the respondent contend that it does not add to what is not proved on record and further that, other things remaining the same, the association of Advocate- General by itself is not of special significance.
14. Section 91 of the C.P.C. Runs as follows:--- "91 Public nuisances.--- (1) In the case of a pubic nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provision."
' The section pertains to suits relating to public matters, especially the public nuisance. It explains, firstly, that in case of public nuisance a suit can be instituted either by the Advocate-General or by two or more persons having obtained the consent in writing of the Advocate-General. Secondly, that for such suit it is not a prerequisite that a special damage must have been caused and thirdly, that if allowed by law, any suit other than public nuisance can well be brought and such other right cannot be limited merely because a suit of public nuisance has been filed. Plain reading of the section is indicative of a mere right of the Advocate-General to file a suit either himself or by giving a consent in writing to two or more persons in whom the right to sue is vested. In either of the cases, no presumption of any sanctity is either attached to the Advocate-General or is at all legally inferable from the words of the section. The intention of the legislature seems to be that where the apprehension of public nuisance involving the interest of a large number of people or a community as such is involved, the Principal Law Officer of the Government be also given a right to sue either on behalf or instead of such person. No more and no less. Any such suit is always liable to be proved through production of evidence like any other suit of the plaintiff. No special sanctity can therefore be attached.
15. In the instant case the learned Advocate-General has only signed the plaint and apparently seems to be a plaintiff. It is admittedly not a representative suit filed under or satisfying the provisions of Order 1, Rule 8 of the C.P.C. If it is presumed to be a suit of anyone or two persons, the section contemplates of obtaining in writing the consent of the Advocate-General. Such consent in writing presupposes the positive application of mind to the facts and circumstances of the case.
No such consent in writing is available on record except the signatures of the Advocate-General on the plaint. If he thereby chose to be a plaintiff, we observe that neither he appeared as a witness nor examined or cross-examined any relevant witness which is normally done by a plaintiff and which specifically ought to have been done by the Advocate-General claiming to be a representative of the public at large. Such omissions rather go to prove that the learned Advocate- General had signed the plaint in routine without proper application of mind.
16. Coming to the question public nuisance as a material fact, suffice it to say with strict reference to section 268 of the Cr.P.C. That the matter as a question of fact was not proved through evidence.
It is not specifically brought in evidence as to what public nuisance, the construction in question would entail upon. The crux of the evidence is that by constructing multi-storeyed building of residential flats, there would be rush of traffic and certain basic utilities like electricity, gas, water supply, telephone and sewerage would be adversely affected.
17. So far as the question of utilities being adversely affected is concerned, it should not in any manner agitate the mind of the plaintiff because it Is the duty of the Government, the Karachi Development Authority, the gas and water supply companies etc. To meet, such eventualities by providing the necessary infrastructure in accordance with the present as well as the future requirements. It may be recalled that before any permission is granted for the construction of such-like multi-storeyed buildings, a no-objection certificate is always obtained from the aforesaid authorities responsible for providing such facilities. In the instant case too, the permission was granted after completing all such formalities. Coming to the question of actual or specific nature of public nuisance, both the Courts have concurrently held that no such public nuisance is caused in the instant case in the light of evidence of the parties. Such concurrent finding of the two Courts should not be interfered with by this Court. We have gone through the entire lengthy evidence of the parties minutely and have all reasons to believe that the concurrent finding is in accord with the evidence on record. No illegality in the act of defendant is proved and no factual consequences of any such act have been brought on record.
18. After elaborately and competently discussing the law as well as case-law on the subject regarding the authority of the authorities to give sanction for a high rise building vis-a-vis the rights of the neighbouring people, from page 31 to page 40, the learned Division Bench has rightly arrived at the conclusion "... That mere violation of municipal rules or plan or a mere violation of Sindh Building Control Ordinance or Regulations or plan is not actionable per se unless an injury, real or apprehend, is established by the persons in whose interest and for whose protection the rules or regulations are framed"; and further, that any injury sustained or apprehended needs to be proved through evidence with strict reference to the circumstances of each case.
19. The existence of nuisance occurring or apprehended is a pure question of fact which, in cases of permanent injunction or damages, is bound to be proved through evidence. The evidence led by the parties in the instant case is thoroughly appreciated by the trial Court as well as the First Appellate Forum. They have concurrently held that in view thereof, the fact= of nuisance is not proved. The only thing seemingly proved on record is a mere apprehension of the two plaintiffs and not of the public at large that the construction of high rise building in dispute would result into host of problems amounting to public nuisance. This apprehension at this stage is not only subjective but also abstract. The authorities discussed in the impugned judgment are rightly relied upon consequently upon the observation that inconvenience or annoyance or discomfort, to be considered in a particular case, must be more than "... Mere delicacy of fastidiousness and more than producing sensitive personal discomfort or annoyance. Such annoyance or discomfort or inconvenience must be such which the law considers as substantial or material". What law demands to be more than mere delicacy or sensitive personal discomfort has not been proved in the instant case?
20. In the instant case it is also to be seen that the defendants Plot No,G-19 is several hundred feet away from the plaintiffs Plots Nos.G-5 and G-10. There is a 240 feet vide road between the two plots in addition to service roads on both sides. The plaintiffs' plots are situated in Block 9 while the disputed plot is in Block 5. It has also come on record that there is other multi-storeyed building in Block 9 where the plaintiffs reside. All these questions pertaining to a material fact have been held by the two Courts against the plaintiffs, who have not proved or established the case of absolute nuisance causing 'substantial' interference with the physical comfort of substantial number of people.
21. We have thoroughly gone through the case law discussed by the learned two Courts as well as relied upon by the learned counsel on either side before us. Almost all the rulings go, one way or the other, to define as to what is pubic nuisance. Those also explain that what is pubic nuisance at one place might not be so at the other. The real question is as to whether any pubic nuisance, occurring or apprehended, has at all been proved by the plaintiffs in accordance with assertions in the plaint. We have thoroughly examined the entire evidence and are fully convinced that the material and physical existence of the nuisance as well as the apprehension thereof is not proved on record. Both the Courts have, therefore, arrived at the correct conclusion which we would not interfere with. In the absence of proof regarding existence of public nuisance, the case-law produced is of least help.
22. Consequently, there being no force in the appeal, it is hereby dismissed.