MRS. QAISER IQBAL, J.--- By this order I propose to dispose of an application under Order XXXIX, rules 1 and 2, C.P.C. filed by the plaintiffs against the defendants praying therein that the defendants, their servants, employees, assignees, successors, legal heirs, attorneys, representative or any other person or persons for or on behalf of the defendants be restrained from demolishing the park subject-matter in question and constructing illegal shops in the park and creating third party interest.
2. The facts leading to the application are that the plaintiff is a registered welfare association of shopkeepers of K.M.C. Furniture Market carrying on business in the said market over last four and half decades with all amenities provided by the Government and have been paying taxes regularly on the demand of the City District Government. That the K.M.C. Furniture Market was constructed in the year 1960 and the beautiful park was constructed by the defunct K.M.C. for maintaining good atmosphere and entertainment of the plaintiffs, including the residents of the locality and general public. It is averred that 13 shopkeepers in the said K.M.C. market due to widening of road and construction of the bridge at Moulvi Tameezuddin Khan Road suffered as their shops were demolished up to 6 feet by the competent authority, the rest of the shops were got demolished by the occupants for seeking alternate accommodation. It is urged that the defendants by demolishing the park are constructing shops to accommodate defendants 4 to 16. The shops of the plaintiffs are constructed around the park in question and due to the demolition of park and construction of illegal shops proposed to be raised by the defendant No,1 for the defendants 4 to 16, all the shopkeepers of the K.M.C. Furniture Market shall suffer as the front of their shops would be affected if construction is raised in the park, their shops would be in back lane and the business of the plaintiffs shall be ruined who are carrying on business over four and half decades, therefore, the defendants be restrained from raising illegal construction in the park as the action of the defendants is discriminatory and in violation of the Constitution. It is aimed to harass the plaintiffs for their illegal enrichment on the behest of the mighty persons to humiliate and tarnish the business of the plaintiff.
3. On behalf of the defendant No,1, Mukhtar Hussain, District Officer Estate (Revenue) filed the counter-affidavit and pleaded that no cause of action has accrued to the plaintiffs against the defendants as the market in question was constructed in the year 1960 but the association was registered on or about 12-2-2005. It is emphatically stated that no park was constructed for the local or general public. It is further stated that 48 shops were constructed by the defunct K.M.C. in the year 1960 and an open space of considerable size was available in front of these shops in order to prevent this space from encroachment and to give a good look to the market grass/lawn with small plants was developed which cannot be termed as public park. The plot was not reserved for any amenity purpose in the approved layout plan, therefore, the plantation of space would not bring it within the ambit of public park. It is averred that 48 shops near PIDC Bridge/Queens Road at Moulvi Tameezuddin Khan Road were constructed by defunct K.M.C. The defendants Nos,4 to 16 after their shops were demolished in the public interest for national cause for widening the road had requested defendant No,1 that permission be granted with the approval of the competent authority to accommodate them in the shops constructed on the subject plot. The shops are constructed by defendant No,1 on the plot reserved for market, the question of demolition of park does not arise nor the construction raised would affect the business of the shopkeepers of the famous furniture market in the Karachi City.
4. The attorney of defendant No,14, Azhar Malik in the counter-affidavit asserted that defendant No,14 was the lawful allottee of Shop No,43 situated at K.M.C. Furniture Market, Queens Road, the defunct K.M.C. has constructed shops on the commercial plot which were subsequently allotted, regularized to others including the defendant No,14. There was a considerable open space in the mid of the commercial plot owned by defendant No,1, which was converted into grassy plot to avoid encroachment. After the 14 shopkeepers of Cane Furniture Market came under aligmnent of proposed widening of road leading to Jinnah Bridge to Queens Bridge, their shops were completely demolished an alternate prayer for shops was granted by the competent authority. After taking into consideration all the legal formalities and after necessary approval from the competent authority the shops were constructed by the affectees out of their own funds and almost completed. The defendant No,14 and others had spent a huge amount for construction of the shops under the supervision of defendant No,l. That despite of the lapse of more than one year the defendant and 14 other affectees of the demolished shops were deprived of their livelihood as they are not carrying on the business on account of the interim stay operating in the matter at the request of the plaintiff and possession of the alternate shops, complete in all respects, was not handed over to the defendants Nos,4 to 16 on account of the pendency of the suit. It is also denied that any park ever existed which was demolished for accommodating the affected shopkeepers. It is averred that the plaintiff under the rule of estoppel is not entitled to challenge the construction of the shop allotted to the affectees of the widening of the Queens Road. The allegations that the construction of the 13 shops would destroy the existing market position and the business of the plaintiffs is not tenable under the law. The same line of action was adopted by the defendants 4, 6 and 7 to 13.
5. Mr. S. Muhammad Raza Abidi, General Secretary of the plaintiffs Society, has filed his affidavit-in- rejoinder. It is averred that the allegations as levelled by the answering defendants are baseless. It is stated that an application was moved to City Nazim on 20-12-2004 about the alleged two spaces available to accommodate them but they had purposely mentioned only one space i,e, park in question and did not disclose the second space, which shows the mala fide and ulterior motives on their part. It is further averred that per clause 19.2 and 2.7 of the Karachi Building and Town Planning Regulation, 2002 all the green spaces are included in parks and treated as park or playground. As a matter of fact, the defendants Nos,4 to 16 are intending to encroach upon the land reserved for park. Thus, the plea of the defendants Nos,4 to 16 that the construction of the shops are complete in all respects is contrary to the record of the case.
6. I have heard the learned counsel appearing for the parties.
Mr. Aminullah Siddiqui and Mr. Farogh Naseem, Advocates appearing for the plaintiff have contended that the defendant No,1 is not justified in taking the plea that no park exists in the furniture market situated at Queens Road after its construction in the year 1960. In this connection, my attention is drawn to the layout plan pertaining to the Queens Road including the existing market. It is reflected that there existed a park on the layout plan of defunct K.M.C. which is being utilized for the purpose of constructing shops for affectees on the widening of the road on account of the construction of the bridge. Learned counsel for the plaintiff have also invited my attention to the notice for inviting tenders by T.M.O. Keamari, Karachi, dated 9-12-2003 published in Daily Dawn, at S.No,17. The tender was invited for improvement of furniture market park in UC No,2 Moulvi Tameezuddin Khan Road, Keamari. It is contended by the learned counsel appearing for the plaintiffs that the proposed construction by the defendant No,1 is illegal and unwarranted, motivated to cause harassm ent and inconvenience to the shopkeepers of furniture market, as their shops were facing front and after the constructions of the shops for the affected defendants, the business of the plaintiffs' shopkeepers would be seriously affected. In this connection on 4-3-2005 an interim order was passed, the Nazir was appointed to inspect the site and submit report regarding the status of the park, which existed in layout plan of defunct K.M.C. The report dated 10- 3-2005 reveals that the park was found completely demolished, its marks were available, the fountain which was fixed in the centre of the park area was also removed, photographs are annexed. Inside the centre area of the park part of footpath was available, water pump machine was also fixed, the material of the construction viz. cement blocks were lying at site. It is further reported by the Nazir that seven shops constructed facing to east are available on the eastern portion of the park were plastered from the outside while the plaster in the shop had started on the western side. Six shops were built facing west, the same was plastered from outside and some shops were plastered from inside as well as whitewashed.
7. The learned counsel for the plaintiff has contended that the report of the Nazir referred to above clearly connotes that during the pendency of the suit the defendant No,1 with ulterior motives had expedited the construction despite of the operation of interim order the state of construction had been changed. It is urged that the action of the defendant No,1 is not in conformity with law. The defendant No,1 in spite of the space is earmarked and preserved for the purpose of public park had acted in utter violation of the norms of the Article 9 of the Constitution of Islamic Republic of Pakistan because the rights of the shopkeepers and the public resided in the vicinity have been hampered. In support of his contention reliance is placed on the case of D.D. Vyas and others v.
Ghaziabad Development Authority, Ghaziabad AIR 1993 Allah. 57 at para.9, wherein it has been laid down that "good parks expansively laid out are not only for aesthetic appreciation but in the fast developing towns having conglomeration of buildings, they are a necessity. In crowded towns where a resident does not get any thing but atmosphere polluted by smoke and fumes emitted by endless vehicular traffic and the factories, the efficacy of beautifully laid out parks is not less than that of lungs of human beings. It is the verdant cover provided by public parks and greenbelts in a town, which renders considerable relief to the restless public. Hence, the importance of public parks cannot be underestimated. It is further laid down that private lawns or public parks are not a luxury, as they were considered in the past. A public park is a gift of modern civilization, and is a significant factor for the improvement of the quality of life. Open space for a public park is an essential feature of modern planning and development, as it greatly contributes to the improvement of social ecology".
8. It is further contended by the learned counsel appearing for the plaintiff that the doctrine of public trust has taken weight as is now a very special position in connection with natural resources like air, sea water and forests, these are the gift of nature and should be made freely available to every one irrespective of the status. In case of Sindh Institute of Urology and Transplantation and others v. Nestle Milkpak Limited and others SBLR 2005 Sindh p.116 it has been laid down that "the doctrine of public trust as developed during the days of ancient Roman Empire, enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Even under the Islamic Law certain water resources are to be protected from misuse and over exploitation".
9. Mr. Raja Qureshi, the learned counsel for the defendants Nos,4 to 16 has drawn my attention to the Nazir's report, contended that the affecters of road widening have preferential right to occupy the shops constructed on the disputed plot on account of the restrains order in the case poor shopkeepers have been deprived of their livelihood, which was constructed for them out of their own resources. It is urged that the plaintiff has failed to make out a prima facie case as the balance of convenience and irreparable loss lies in favour of the answering defendants and the application is liable to be dismissed. He has relied upon the case of S.N. Gupta v. Sadananda Ghosh PLD 1960 Dacca 153 relevant page 161, it has been laid down that the exercise of jurisdiction to grant relief by issue of an injunction is not a matter ex debito justified, but one which is purely within the discretion of the Court and the latter is not bound to grant such relief merely because it is lawful to do so. The discretion of the Court is not arbitrary but sound and reasonably guided by judicial principles and capable of correction by a Court of law. It is further laid down at page 162 that in the case of temporary injunction, (a) an applicant must show a fair prima facie case in support of the right claimed; (b) an actual or threatened violation of that right; (c) productive of irreparable or at lost serious damage; (d) his conduct must be such as not to disentitle him to assistance but it should be fair andce in granting than refusing the injunction and (t) equally efficacious relief must not be obtainable by any other usual mode or proceeding.
10. On the touchstone of the above rulings the plaintiff is required to prove a prima facie case, the layout plan of site suggests that the space now bearing shops of the affected defendants was earmarked as park. This factum cannot be lost sight of although a number of documents have been produced by the defendants to convert the situation. Since 1960 there existed a park a honest and in particular there must be no acquiescence or delay; (e) there must be a greater conveniens is confirmed by the publication effected in Daily Dawn referred to hereinabove. These documents earnestly prima facie the case of the plaintiff that without any public notice or without any other action in this behalf the status of the park and/or amenity plot could be changed by defendant No,1 or defunct K.M.C. The Nazir's report also shows that there were remains of park on the site when he inspected the same. The status of the park was changed after the issuance of the letter dated 27-3-1993 on the basis of the application dated 13-8-1992. Subsequent, thereof the alternate shops were provided to the defendants 4 to 16 in Cane Furniture Market of Moulvi Tameezuddin Khan Road in which Techno Project Limited played an important role as the tender drawing of September, 2004 of Karachi Port Trust Planning and Development Division relating development and rehabilitation to Moulvi Tameezuddin Khan Road was planned by Techno Consult International, specified the subject place as park. The contention of the learned counsel of the defendants Nos,4 to 16 that the construction of the shops have been completed, therefore, no action is warranted in the circumstances of the case, was negated from other side on the premise that it is a public interest litigation, human rights are involved. In support of the submissions, reliance is placed on the case of Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 relevant page 713, the dictum laid down is: "The Constitution Law in America provides an extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyments are nothing but part of life. A person is entitled to enjoy his personal rights to be protected from encroachments on such personal rights, freedom and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law. In the present case this is the complaint the petitioners have made. In our view the 'word 'life' constitutionally is so wide that the danger and encroachment complained of would impinge fundamental right of a citizen".
11. It is also to be seen that whether a notice was required to be served upon the nearby shopkeepers running their business prior to the demolition of the park. It appears that neither any publication was made in any newspaper nor any notice was served admittedly because the defendant No,1 had set up a case contrary to the record that a park never existed at site. Even if the defendant No,1 was proposing to raise the construction of a plot earmarked for amenity purpose, approval of K.B.C.A. was must. Admittedly, no such permission was sought to raise construction on the plot.
12. In support of the above contention reliance is placed on the case of Funfair (Pvt.) Ltd. v. Karachi Development Authority PLD 2004 Kar. 170 relevant portion at page 189 is reproduced hereinbelow:-- "It is not a case, in which right of one individual is involved. The amenity plot for park is a public property and involves the rights of millions of citizens. The issue is to be considered on much wide plane and in the perspective of a broader horizon, keeping in view the public interest at large, as well as environmental issue. After determination of the status of the plot the question for consideration would be whether the State functionaries are also bound by the law of the land or they have free licence to deal with the public properties at their whims ignoring all the norms of public administration and the rule of law".
13. On behalf of the plaintiff reliance is placed on Al-Jamiaul Arabia Ahasanul Uloom and Jamia Masjid v. Sibte Hassan 1999 YLR 1634, the rule initiated is that in case of the prayer for injunction it is manifestly the right of the plaintiff and other residents of the locality to the use of subject plot as park which is one of the recognized amenities in the context of modern city living. The denial of an amenity to citizens amounts to public nuisance which is actionable per se for the reason that it is not based purely on compliance with Municipal Rules but affects rights of numerous people to recreation and pollution free environments".
14. The letter of the private respondents Nos,4 to 16 dated 31-8-2004 contains admission to the fact that the area alternative must be given to shopkeepers to the nearby location ideally to the near about of KMC Park. The master plan formulated by Messrs Techno Consult International under the auspices of the Karachi Port Trust confirmed the existence of park in the layout plan, therefore, the demolition of the park and the construction in question are unlawful.
15. The contention of Mr. Farogh Naseem that the past practice whether right or wrong gives rise to the vested right. Prima facie, it appears that the space in question was used as a public park for over last four decades. Thus, the plaintiff and the members of the public had derived the vested right to treat the space as a public park as there being a settled past practice to treat the space as public parks. The dictum laid down in 1999 SCMR at page 2089 by the apex Court that no construction can be carried out on a cut-line meant for road widening and even if any construction has been so permitted that can only be upon the undertaking that once the road is widened the allottees on the cut-line would remove their constructions. The rights of the plaintiffs are also protected in terms of section 12 of Pakistan Environmental Protection Act, 1997, therefore, before the commencement of the construction of the project initial environmental examination by Federal Agency was necessitated as no such examination have been done renders the entire construction to be against the Act, 1997 referred (supra) and is void. The plaintiff was required to raise an arguable case for grant of injunction. In this context reliance is placed on PLD 1960 Dacca 153 and PLD 1956 Kar. 521. There are diverse views in cross-statements from the side of both the parties. Prima facie, it appears that the subject plot was an amenity plot used as the park as is established from the documents placed on the record. The defendant No,1 was bound by the law to safeguard the interest of the public instead thereof they have acted ignoring all the norms of public administration and the rule of law.
16. The learned counsel for the defendants Nos,4 to 16 has contended that the defendants undertake that in case they lose the case on final trial they would vacate the shops if the possession and permission to complete the remaining construction and occupy the same is granted by the Court of law. The balance of inconvenience lies in favour of the plaintiffs coupled with irreparable loss, the concession cannot be granted to the defendants 4 to 16 for enjoying the fruits of the property in violation of the guaranteed rights enjoyed by public.
17. The counsel appearing for the plaintiff has placed reliance on 1990 CLC 448 in which a Division Bench of this Court declined the respondents request to complete the structure on the undertaking that it would demolish the same on failure in the legal proceedings. The relevant portion is reproduced hereinbelow: "We would also not allow the respondent to complete the structures on an undertaking to demolish the same on failure in legal proceedings because that will amount to permitting premium on wrong-doing. Further, we cannot fail to observe that a tendency has, lately, developed in taking the law for granted and in violating it in the expectations that, on passage of time, matters would ease and condonation would be allowed for the adverse parties, over an indefinite period spreading over a number of years, would lose interest and the violations would be allowed the stamp of continuity, if not for any thing, but default on the part of all concerned. This is a very sad state of affairs and the entire society appears to have been stricken with it. Law, thus, is observed only in its breach. Therefore, unless strict observance is enforced no respite from the present day situation appears to be in sight".
18. In view of the above discussion, I am of the considered view that the plaintiffs are entitled to the relief claimed, therefore, status quo order passed earlier hereby stands confirmed. The listed application under Order XXXIX, rules 1 and 2, C.P.C. bearing C.M.A. No,1378 of 2005 stands allowed in the above terms.