' KHALID ALI Z. QAZI. J.--- C.M.A. No,51 of 2008. This is an application under Order XXXIX rules 1 and 2 filed by the plaintiff seeking orders restraining the defendants their employees, servants, agents and anyone working on their behalf from carrying out further construction work for installation of a C.N.G. Filling station on the subject plot or operating the same till final disposal of the suit.
2. Brief facts of the case requisite for disposal of this application are that the plaintiff had acquired the ownership of the residential property bearing No,C-19, Block R, North Nazimabad, Karachi, which is situated adjacent to defendant No,5 plot from its predecessor/owner, only after having accepted the offered terms and conditions stipulated in the standard Lease Deed issued by the defendant No,2 to all the neighbouring property owners including the Lease Deed of property of the plaintiff.
3. Mr. Saadat Yar Khan contended that the defendant No,1 is the competent licensing authority to grant license to intended C.N.G. Filling service operators. Defendant No,2 is the CDGK constituted under the Sindh Local Government Ordinance being the Ordinance XXVIII of 2001 and successor of (defunct) KDA and lessor of the properties as per the terms and conditions contained in the Lease Deed. Defendant No,3 is Sui Southern Gas Co. Ltd., a company incorporated under the Companies Ordinance 1984. Defendant No,4 is an authority that is purporting to exercise its authority under the .Sindh Building Control Ordinance 1979 being Ordinance V of 1979. Defendant No,5 watchman refused to disclose identity of owner/occupant of the plot bearing No,C-20 Block R, North Nazimabad, Karachi, (hereinafter referred to as the suit property) situated in the densely populated residential area also having a children school in the vicinity. It is further urged that after having acquired the ownership of her property the Plaintiff mortgaged her property with all related original title documents with Allied Bank Ltd. Against the finance facility availed for the advancement of the business concern of her husband i.e, Messer Mais Distribution and Marketing. In view of the nuisance and potential disturbance in the neighbourhood due to installation of C.N.G. Filling station and also to repay/ adjust the finance facility and redeem her mortgaged property, the plaintiff as a last resort decided to sell the property but surprisingly the intended buyer had offered much less a price as compared to the real market value as was offered prior to installation of the C.N.G. Filling station at the suit property. Recently the defendant No,5 (unascertainable owner) demolished the residential bungalow on suit property and erected a high boundary wall so that the nature of construction work remained unnoticed to the residents of the area. However, when the plaintiff came to know about the type of construction/ encroachment on compulsory open space, the plaintiff objected to defendant No,5 as there was no compulsory open space (COS) ' left between the perimeter wall of the plaintiff and newly constructed rooms but the contractor had always assured that the construction was of a temporary arrangement to stack/store the construction material for the under construction house on the said plot and the plaintiff kept silent until recently when the defendant No,5 raised a steel canopy over night which alarmed the plaintiff that the said residential property was likely to be converted and likely to be used as a C.N.G. Site.
4. It is further contended that immediately after it transpired upon the plaintiff that the defendant No,5 is adamant to set up a C.N.G. Filling station on the said neighbouring residential plot situated adjacent to the plot of the plaintiff. The plaintiff tried to contact the owner of the plot for not to install the C.N.G. Station in the densely residential locality and more particularly adjacent to the residential property of the plaintiff but the defendant No,5 after having prophesied the legitimate and just objections of the plaintiff, through his employees employed at the construction work and got the steel canopy erected over night which had endorsed the apprehension of the plaintiff that the neighbouring residential plot of the defendant No,5 was likely to be used as a potential C.N.G.
Filling station. The defendants were collusively, illegally and unlawfully facilitating the defendant No,5 to set up a C.N.G. Station without having invited objections from the residents of the area more particularly from the plaintiff who is most adversely affected and likely to be exposed to danger, noise, pollution, and above all the depreciation of the value of the property of the plaintiff which amongst others include potential threat and danger of explosion of C.N.G. Cylinder. It is further stated that the C.N.G. Station being installed on the subject plot will expose the residents of the area in general, the plaintiff in particular and hundreds of school children in the neighbourhood to great risk/danger of their lives and property, the plaintiff will be deprived of his fundamental rights as guaranteed vide Articles, 4, 9 and 24 of the Constitution of Pakistan 1973. Therefore, the plaintiff has approached this Hon'ble Court for the protection of his fundamental rights.
5. Learned counsel further contended that the installation of C.N.G. Station in a residential area and adjoining the property of the plaintiff is serious potential risk to the present and future inmates at the plaintiff's property. In this connection a big explosion at C.N.G. Station on the main Khayaban- e-Bahria, in Block-7, DHA Karachi and other explosions on various occasions in various parts of the country which resulted in loss of precocious lives, serves as an example to substantiate the danger associated with C.N.G. Filling station. The conversion of the residential plot into commercial specially for a C.N.G. Site and issuance of NOC for installation a C.N.G. Filling station thereon without having invited objection of the plaintiff being an immediate and adversely affected neighbour, is arbitrary, illegal and unlawful The NOC and other related permissions granted by the defendants are liable to be declared as cancelled. It is urged that in case a C.N.G. Station in installed on the suit property, there will be tremendous noise of the compressor of C.N.G., power generator, vehicle fuel emission throughout day and night and it will be practically impossible for the plaintiff and other residents at the adjoining house to live a peaceful life. It is contended that due to the deafening noise of the C.N.G. Compressor it will not be possible for the students of the neighboring schools to study in a peaceful atmosphere hence, it will cause great hindrance to the education of the students.
6. Learned counsel contended that defendants and their employees have wilfully neglected and have collusively failed to perform their statutory duties. The conversion of residential suit property to a C.N.G. Site, issuance of NOC for the same and approval of building plan in violation to existing building laws has grossly impaired the value of the property of the plaintiff in millions of rupees besides posing an ever standing potential threat of explosion on the suit property whereby risking the lives and causing continued mental torture, agony, distress and discomfort to the residents and the plaintiff hence the plaintiff is entitled to claim general and special damages caused due to the illegal act of the defendants.
7. Mr. Raja Qasit Nawaz learned counsel for the defendant No,5 filed counter affidavit of one Mrs. Nasim Anwar wherein it is stated that Mrs. Nasim Anwar is 50% co-owner of lease hold C.N.G.
Station/plot of land being undivided share of property bearing Plot No,C-20, Block-R, North Nazimabad, Karachi measuring 630 Sq. Yards and a partner of Messrs A.R.C.N.G. Point, and as such she is fully aware and well conversant with the facts and circumstances of the present case.
8. It is further contended that suit as well as injunction application is not maintainable in law and/or on facts and the plaintiff by suppressing material facts and documents and by misleading the Court obtained ex parte order against the other defendants and never served any stay order and/or sent any intimation about stay to the defendant No,5 which is liable to be vacated and the suit as well as injunction application are liable to be dismissed in view of the following Preliminary Objections.
' He has raised the following preliminary objections:
(a) That the suit is not maintainable in law as well as on facts as property in question being C.N.G.
Station/ Plot of land bearing No,C-20, Block-R, North Nazimabad, Karachi is not situated in residential area as falsely alleged by the plaintiff but the same is located on Shahrah-e-Noor Jehan 150 ft wide Road which has already been declared Commercial Road by the City District Council who issued a Notification dated 4-9-2007. The Plot-in question is situated at Shahrah-e- Noorjehan 150 ft wide Road and hence after the issuance of the aforesaid notification all plots situated on the subject Road Sharah-e-Noorjehan in between Abdullah College roundabout upto Qalandaria Roundabout have been declared commercial. The grievance of the plaintiff comes to and end when all plots situated on Shahrah-e- Noorjehan Road stands converted into commercial plots. Least to mention that C.N.G. Station also include within the definition of commercial activities.
(b) That bunch of constitutional petitions regarding installation of C.N.G. Station in residential areas have recently been disposed of by the Division Bench of this Hon'ble Court on 7-12-2007 and petitioners were directed to approach competent authorities under OGRA Ordinance, 2002 as well as under Karachi Buildings and Town Planning Regulations 2002 for their grievances if any.
(c) That adequate alternate remedies available with the plaintiff before the competent authorities in OGRA Ordinance, 2002 as well as under the Karachi Buildings and Town Planning Regulations 2002 as all permission/approvals and NOCs have been granted after due verification and compliance of all legal formalities including inviting objections from the general public hence this suit is not maintainable in law.
(d) That the plaintiff by suppressing material facts and documents and by misleading the Court obtained ex parte order against the other defendants and deliberately did not serve the stay order upon the defendant No,5 who is main party which is liable to be vacated as same is not maintainable in law as well as on facts.
(e) That even otherwise the conversion of plot is the prerogative of CDGK and hence the suit is infructuous and the plaint is liable to be rejected. So far as conversion of plot from residential to commercial that it should not to convert into C.N.G. Plot the plaintiff did not challenge that the regulations on the basis of which such conversion took place is illegal unlawful and void.
(f) That the injunction application filed by the plaintiff is liable to be dismissed on the ground that the plaintiff has quantified the damages that she is seeking from this Hon'ble Court. It is further urged that as per provisions of the Specific Relief Act the plaintiff is not entitled to obtain any injunction once she claims damages.
(g) That the defendant No, 5 has already invested crorers of rupees on the plot and has completed the construction as well as installation and during that time plaintiff kept on watching the installation of C.N.G. Station at the plot in question. The plot was converted into C.N.G. In March, 2006 and earlier the objections were invited through public notices published in newspapers on 12- 7-2007 and subsequently after conversion of plot into C.N.G. And obtaining licences the property was sold as C.N.G. Plot to four brothers from whom the defendant No,5 has purchased this property.
(h) That the plaintiff is estopped from filing these proceedings as she is using her own premises exclusively for commercial activities and plaintiff is not residing in that premises. Numerous vehicles of Messrs Mais Distribution and Marketing and containers/trucks were loaded and offloaded daily with numerous sale agents. It has also come in knowledge of the answering defendant that plaintiff herself applied for change of land use of her own property for conversion into C.N.G. Station and notice was also published in newspapers but it appears that same was not granted and now she filed this suit with mala fide intention and ulterior motive only to harass, pressurize and blackmail the defendant No,5.
(i) That the plaintiff has not come to this Hon'ble Court with clean hands as she has suppressed material facts and documents from this Hon'ble Court and the suit is based on assumptions, false and distorted facts. The suit suffers from delay and laches. The plaintiff is well aware years earlier that change of land use into C.N.G. Station of the property in question has been done after complying with all legal formalities and similarly the C.N.G. Station was installed after making huge investment of over Rs,60 millions by the defendant No,5 and the plaintiff is well aware of the nature of construction started in January, 2007 and completed in September, 2007 but the plaintiff staff remain mum and never filed any objections and/or approach the defendant No,5 rather the joint wall bifurcating both the plots have been repaired and uplifted with the consent and permission of the plaintiff. The plaintiff's staff often used to take tea at the plot of the defendant No,3. In fact no body in the vicinity ever raised any complaint and objected rather were happy that C.N.G. Supply is available near their area. The previous owner of subject property namely Anis-ur-Rehman had applied for change of land utilization of residential land into C.N.G. Station/Plot under name style A.R. C.N.G. Point and same was granted. By the competent authority vide their letter No, CDGK/ KDA/ Land/Sch2/2006/157, dated 21-3-2006 after complying with all legal requirements including publications of public notices in two newspapers of 21-7-2005 inviting objections from the general public. No objections ever raised by anyone. The property A.R. C.N.G. Point was subsequently sold out in favour of four persons as C.N.G. Station site vide Sale-deed dated 20-4-2006 who vide sale "Deed dated 21-9-2006 sold out in favour of current owners namely Mr.Rashid Shafiq and Mrs. Nasim. The construction and installation of the C.N.G. Station was completed during January, 2007 to September, 2007 without any objection from anyone and after delay of more than 18 months since conversion/change of land use of the plot the plaintiff filed this suit on concocted and fabricated grounds for mala fide and ulterior motives.
(j) That the plaintiff is well aware that on the said Road namely Shahrahe-Noor Jehan there are five other plots of the same status as that of defendant No,5 within very closed proximity which have been converted into C.N.G. Stations. Photographs of such stations are attached herewith. Apart from these C.N.G. Stations and the fact that the Road has been commercialized by the CDGK, the Road has undergone changes and there are many commercial activities going on since many years. Hence the defendant No,5 has been victimized of pick and chooses. Recently the Division bench of Lahore High Court has also dismissed a similar kind of petition involving the same question of nuisance and danger. The learned Division Bench of Lahore High Court recently dismissed the Appeal No,66/2007 thereby allow the C.N.G. Station owner to construct complete and operate the C.N.G. Station on his plot. The learned Division Bench of Lahore High Court also considered that since the road where the C.N.G. Station has located has been commercialized therefore, the grievances of the petitioner comes to an end and the plots owners are entitled to use their plot for any commercial activity which include C.N.G. Station as well.
(k) That the suit against defendant No,5 is not maintainable in law as well as on facts as same was filed against unknown owner/occupant as clearly seen from the title of the plaint.
(1) That the plaintiff cannot be deemed to be an aggrieved person, as all the permissions and approvals have been granted by the official defendants in accordance with law, and the defendant No,5 has installed the C.N.G. Station on the plot in question through due process of law.
9. Learned counsel also submitted para-wise reply wherein it is stated that the plaintiff herself is using the premises for commercial activities and she is not residing in that premises for many years as distributor working and functioning in name and style of Messrs Mais Distribution and Marketing without prejudice to the above after declaring the Shahrah-e-Noorjehan as "Commercial" the terms and conditions are no more binding. The regulations and laws of CDGK and KBCA permits the change of land use into C.N.G. Even otherwise the CDGK laws as well as of Master Planning permits change of land use after complying necessary codal formalities and on payment of requisite charges/fee.
10. Learned counsel stated that it is denied to the extent that the vicinity in question has been declared as residential by CDGK (formerly KDA), (sic) are denied as baseless and misleading. It is stated that not a single document has been filed by the plaintiff in support of this false assertion and there is no school nearly situated in the nearby vicinity. The vicinity in question has many C.N.G. Stations/Petrol Pumps/ garages/ shops/ markets/ educational institutions/offices including Abdullah Girls College, Intermediate Board Office, Secondary Board Office, Asghar Ali Shah Stadium, etc., as well as commercial establishments.
11. Learned counsel submitted that plaintiff is using the premises for commercial activities/purposes exclusively for distribution of products since she purchased this property. The plaintiff never resides in that premises and she never used this property for residential purposes.
12. It is further urged that the plaintiff M one breath asserted that she came to know about the installation of CNG station in December, 2007 while in another breath in the answering para she alleged that due to installation of CNG station she redeemed her mortgage property and she decided to sell the property. Such cock and bull story has been fabricated to harass and blackmail the defendant No,5 who have already invested crorers of rupees in purchase of land and establishment of CNG station. The latest and modern equipments and safety measures have been adopted by the plaintiff as per requirements of the competent authorities. Necessary NOCs have been issued in favour of the defendant No,5 after meeting all codal formalities including inviting objections from all concerns including general public through public notices in newspapers and no objection till filing of the suit has been raised by any one before the defendant No,5 and for before any functionary and authority and no violation of any law, rules and bye-laws have been used as per modern standards including sound proof rooms, special foundation walls, safety checks at four levels leaving no room for any risk and nuisance and any potential disturbance well within knowledge of the plaintiff in the vicinity have been drastically enhanced. The story set-up by the plaintiff is fallacious and concocted.
13. Learned counsel vehemently denied that defendant No,5 demolished the residential bungalow and erected a high boundary wall. The construction was started in January, 2007 and was completed in September, 2007. The joint boundary wall in dilapidated and damaged conditions was raised by the defendant No,5 with prior consent and permission of the plaintiff and her staff. In fact their staff also participated in construction work of joint boundary wall and they used to have tea and refreshments at defendant No,5's site. The plaintiffs since March-2006 is well aware of the nature of plot and nature of subsequent construction carried on thereafter. The plot in question viz. C-20, Block-R, KDA Scheme No,2, North Nazimabad, Karachi, measuring 630 square yards was meant for CNG station/plot was purchased for valuable consideration by Mr. Rashid Shafique and Mrs. Nasim, through a registered Sale Deed dated 21st September, 2006 duly registered before Registrar North Nazimabad Town, Karachi vide registered No,5371 dated 21-9-2006. Mutation and transfer in their names in the record of CDGK was already effected on 19-5-2007. Two public notices in leading newspaper were also got published for purchase of C.N.G. Plot by the defendant No,5 but no objections have been received. The permission for demolition of the old structure was issued by KBCA in the name of the previous owner namely Mr. Anis-urRehman on 10-8-2005.
Similarly change of land use of residential plot into CNG Plot only was granted by CDGK (Land Management Department) Revenue Group of Offices vide letter No,CDGK/KDA/ Land/Sch- 2/2006/157 dated 21-3-2006. CNG Provincial Licence was issued in favour of previous owner by Oil and Gas Regulatory Authority (OGRA). Building plan for installation of CNG station only was also approved by KBCA on 9-6-2006 in favour of previous owner Mr. Anis-urRehman. On the said date, the plot in question had not been purchased by the defendant No,5 but was in the names of the previous owners. The property A.R. CNG point was subsequently sold out by Mr. Anis-ur-Rehman in favour of four persons vide Sale deed dated 20-4-2006 who vide sale deed dated 21-9-2006 sold out in favour of current owners namely Mr. Rashid and Mrs. Nasim/defendant No,5. The construction was raised which continued for upto September-2007. The nature of the plot and status of construction are well within knowledge of the plaintiff as well as others. The construction was in accordance with approved plan. Hence there was no illegality by the defendant No,5, as alleged or otherwise.
14. Learned counsel further contended that as the plaintiff has hopelessly tried to mislead this Hon'ble Court, it is necessary that the correct factual position is placed before this Hon'ble Court.
The entire process followed by the defendant No,5 as well as previous owners till this date from purchasing the plot in question, and applying to relevant authorities for their approvals/permissions, was/is strictly in accordance with law. Similarly, due process of law has been followed by the official defendants in granting all such approvals/permissions/licenses. The said process is explained below in brief for convenience and ready reference:---
(i) OGRA (Oil and Gas Regulatory Authority) granted License dated 30-6-2005 to A.R. CNG Point to install a CNG filling station on the plot in question who later on allowed change of ownership of CNG Provincial Licence in the names of Mr. Rashid Shafiq and Mrs. Nasim Anwar vide letter dated 23-7-2007 and also vide another letter of the same date extended CNG Provincial Licence for further period of two years.
(ii) Previous owner applied for change of land use from Residential to CNG ONLY and DDO (Law) for DCO vide No . DCO/ DDO/ LAW/NOC/CNG/27/05-81 dated 12-7-2005 invited objections from all relevant departments for comments/ reports against installation of CNG station on the plot in question i.e. From DIG Police (Traffic); The MD, KESC Karachi, MD KW&SB Karachi; The EDO (Revenue)
CDGK; EDO Master Plan Group of Offices CDGK; The Chief Engineer (Planning ) S.S . G. C . Karachi; the Additional Controller Civil Defence Central Karachi.
(iii) CDGK Master Plan Group of Offices issued letter dated 27-5-2005 requiring the documents mentioned therein.
(iv) CDGK Master Plan Group of Offices issued public notices both dated 21-7-2005 in English and Urdu newspapers inviting objections from all concerned as well as general public against Change of land use into CNG station only.
(v) As no objection had been received by CDGK within 15 days in response to its public notices (D-5 and D-6), Challans were issued by CDGK for conversion of land use and scrutiny, which amounts were duly paid by the previous owner Anis-ur-Rehman who deposited fee amounting to Rs,18,90,000 for change of land use to CNG station.
(vi) KBCA Demolition Permission dated 10-8-2005 granted by KBCA to demolish the old structure on the plot in question.
(vii) NOC from Sui Southern gas Company Ltd. Dated 19-9-2005.
(viii)The Civil Defence Office, Government of Sindh, Karachi, issued NOC dated 25-7-2005.
(ix) CDGK Land Management Department issued letter dated 21-3-2006 allowing the change of use of the plot in question from residential to CNG Station.
(x) DCO CDGK vide letter dated 27-3-2006 issued NOC for installation of CNG station along with drawings.
(xi) NOC from Ministry of Industries Department of Explosives Government of Pakistan dated 21-4- 2006 along with approval of relevant drawings with challan.
(xii) KBCA approved building plan for installation of CNG station only vide letter dated 9-6-2006.
(xiii)NOC for installation of CNG station from Town Municipal Administration North Nazimabad, Karachi dated 23-5-2007 after inviting objections through public notice published in newspaper dated 1-5-2007.
(xiv) After complying with all the formalities as submitted above, construction of the CNG station was commenced by the defendant No,5 on the plot in question in January-2007 and was completed in September, 2007. The said construction has been fully completed and plant and machinery has also been installed.
15. Learned counsel contended that as regard para. 6 of the memo. Of the plaint is concerned same are vehemently denied as false, obnoxious, based on ulterior motive and concoctions. In reply to this false and misleading assertion, the contents of paras. 8 to 10 of this affidavit are reiterated for the sake of brevity. It is well within knowledge of the plaintiff that the property in question is situated at corner plot in CNG plot having been converted longtime back by the previous owners and necessary public notices were also published in two newspapers on 21-7- 2005 inviting objections from the general public. Admittedly no objections were ever raised by the plaintiff and/or any other persons. Even the construction of CNG station was started in January- 2007 and completed in Septemnber-2007. It is stated that joint boundary wall was raised with consent and permission of the plaintiff and her staff fully cooperated. She never resides in that premises rather using the said premise for commercial activities for distributorship business. The defendant No,5 have good cordial relationship with all neighbours and no body has any objections.
The defendant No,5 really surprised and shocked by filing of these proceedings by the plaintiff as plaintiff never raised any objection to the defendant No, 5 and/or contacted in this regard. The land use of the property was converted by previous owner who sold out the property to 4 persons who later sold out the same as CNG station site to defendant No,5. The defendant No,5 made investments of over rupees 60 Millions including costs of land, equipment and machinery as well as fee of SSGC for sum of Rs,55 Millions, road cutting charges amounting to Rs,1.5 Millions, and KESC charges Rs,1.5 Millions and huge amount of other expenses. The danger to public alleged in this para. Is mala fide and totally misconceived, firstly, as CNG stations and petrol pumps are located in every residential area as well as commercial and most populated areas. Even the petrol pumps which are more inflammable and risky are situated in highly populated areas as well as residential/commercial/industrial areas. Even adjacent to schools, commercial plazas etc. This is without prejudice to the fact that CNG stations are not at all hazardous, and also that the vicinity in question is not purely residential as submitted above and has been commercialized by the CDGK.
It is further submitted that, in addition to Pakistan, CNG stations are common in USA, UK, Canada, China, India, Argentina, Brazil, etc., and vehicles run on CNG in all such countries according to official research, CNG is most environmentally friendly, safe and economical fuel source in the market today. It is because of all these reasons that the Government of Pakistan is encouraging and promoting CNG, and has abolished import duty on CNG equipment. It is vehemently denied that plaintiff is most adversely affected and likely to be exposed to danger, noise, pollution and threat of explosion. As submitted earlier plaintiff never resides in that premises and is using the premises since its purchase for commercial activities as distribution network and godown etc. Plaintiff herself stated in para. 4 of the plaint that she wanted to sell her property. The other neighbours have no problems with defendant No,5. Surely these proceedings have been filed for mala fide and ulterior motives to harass and blackmail the defendant No,5 hold all legal permits and licenses in accordance with law and no illegality was ever committed. The CNG stations badly required in the area and is need of the people.
16. The defendant No,5 further contended that the contents of paras. 7 and 8 of the memo. Of the plaint are concocted misleading and mala fide, and as such the same are denied. The contents of para. 7 are imaginary, misconceived and baseless assumptions which can be applied on any locality and under any circumstances. The contents of para. 11 above are also reiterated here. It is reiterated that the vicinity in question is not purely residential as submitted above and in September-2007 the entire Sharah-e-Noorjehan has been declared commercial. The plaintiff has also concealed from this Hon'ble Court that a number of CNG stations have been operating since long in the same vicinity without any objection or hindrance. Recently the Shahrah-e-Noorjehan is being connected to link road by cutting mountain to pave way for heavy traffic hence CNG in that vicinity is the demand of the locality as well as of the inhabitants. It is reiterated that the entire process followed by the defendant No,5 and previous owners till this date for applying to relevant authorities for their approvals/permissions, was/is strictly in accordance with law. Similarly, due process of law has been followed by the official defendants in granting all such approvals/permissions/licenses. The plaintiff has no legal character, interest and right to challenge the said approvals/ permissions/licenses. I submit that the defendant No,5 has not violated any law or regulation, and that the CNG station requirements of the concerned authorities. The apprehensions contained in these paras are imaginary and concocted and as such the same are liable to be ignored. It is denied that the plaintiff would be deprived of her alleged rights because of the CNG station of the defendant No,5.
17. It is reiterated that the entire process followed by the defendant No,5 as well as previous owners till this date from purchasing the plot in question, was/is strictly in accordance with law. Similarly, due process of law has been followed by the official defendants in granting all such approvals/permissions/licenses. The plaintiff has no legal character, right and interest to challenge the said approvals/ permissions/licenses. I say that the CNG is already installed on the suit property with huge investment of over Rs,60 Millions well within knowledge of the plaintiff. It is reiterated that plaintiff never resides in that premises and throughout she has been using that premises for commercial activities i.e. Storage and distribution business. The apprehensions of the plaintiff are unfounded and baseless as highest safety measures have been adopted with various levels of the checking by various functionaries leaving no room for any danger, noise, fuel emission etc. The other adjoining residents never objected and have any problems with defendant No,5.
18. Learned counsel further urged that nuisance does not arise at all and even otherwise it is settled proposition of law that the point of nuisance which requires evidence cannot be decided or urged at interlocutory stage. It is yet to be established that the running of compressor or generator would make nuisance. The generator and the compressor do not make any noise which can constitute a nuisance.
' The equipments are highly sophisticated and based on latest technology. As far as the utility of CNG is concerned it has been recognized as the fuel of the future and so far the petrol. It is further contended by the learned counsel that there is no school nearly vicinity is located near the site and the plaintiff be put to strict proof in support of her baseless assertions.
19. Raja Qasit Nawaz Khan learned counsel urged that no cause of action has accrued to the plaintiff against answering defendant No,5 and the suit is liable to be dismissed with special compensatory costs to the defendant No,5. Learned counsel stated that in view of the facts and circumstances no relief can be granted to the plaintiff and the claim of declaration and damages is fanciful and unfounded.
20. Learned counsel stated that the construction of CNG station on the plot in question commenced in January-2007 and the same has been fully completed in September-2007 the defendant No,5 has every right under the Constitution of the Islamic Republic of Pakistan to carry on their business freely and without any hindrance from any one including the plaintiff. It is stated by the learned counsel that neither any prima facie case has been made out in favour of the plaintiff for grant of injunction nor balance of convenience lies in their favour plea of irreparable loss is also without any substance hence the instant application is liable to be dismissed with costs.
21. Mr. Thawwar Ali Khan learned counsel for the CDGK filed counter affidavit to the listed application wherein it is stated that plaintiff does not have any prima facie case nor balance of convenience lies in their favour and they shall not suffer any irreparable loss if the application under reply is dismissed and also stated that the reliefs claimed are barred under sections 42 and 56 of Specific Relief Act.
22. It is further urged that CNG is allowed on residential plots by the MPGO, CDGK according to the Karachi Building and Town planning Regulations 2002 amended to date.
23. Mr. Saadat Yar Khan learned counsel for the plaintiff filed rejoinder to the counter affidavit to listed application wherein he has also taken preliminary legal/factual objections. He stated that the deponent to defend the case on behalf of Messrs A.R. C.N.G. Point whose legal status has been concealed and not disclosed by the deponent who purports to be acting on behalf of Messrs A.R.
C.N.G. Point. It is further urged that unless deponent is arrayed as defendant No,6 in her capacity as owner of the plot No,C-20, Block R, North Nazimabad , Karachi and not as the authorized partner in business concern i.e. Messrs A.R. CNG point to contest the instant case no application or counter affidavit can be entertained without being party to the suit and there is no power of attorney, authority letter or resolution by other partners, if any, is available on record whereby the deponent is authorized to defend the instant suit on behalf of the firm (registered/unregistered status is not clear), company. Learned counsel stated that deponent has misstated set of contradictory facts in one breath as such counter affidavit filed is liable to be dismissed and the stay application is liable to be granted on the following grounds:-
(a) Legal status/entity of the firm is not disclosed'in the reply and no partnership deed has been filed.
(b) As per the statement Sharah-e- Noor Jehan was only declared as commercialized on 4-9- 2007 and no gazette notification has been shown in this regard.
24. Whereas the deponent has stated that the previous owner had already complied with the legal requirements much earlier to declaring of commercialization of the road if any in 2007. (Provisional permission/License granted in favour of previous owner and not in the name of present deponent/defendant No,5. i.e. In 2006 and 2005). It is further stated that deponent further misstated that the construction for CNG station/commercial activity started in January-2007 and allegedly was completed (no completion certificate has been annexed and deponent admitted that change in land use was issued and the Building Plan was got approved and also the OGRA provisional license was issued but all, prior to alleged commercialization if any, of road Sharah-e- Noor Jehan i.e. In September-2007 and not the commercialization of the residential locality. The entire set of permissions is a hotchpotch and are in negation of the bona fide claims, rules and by- laws.
25. Learned counsel further states that without prejudice and in addition to the preliminary objections it is stated that neither the defendant has annexed any proof. It is further stated that as per the contention of the defendant No,5 and annexure 'A* the road was declared commercial vide CDGK resolution dated 4-9-2007 for processing of suit CNG site prior to the date of commercialization of road is without any concrete foundation is liable to be scraped. It is worth to mention that in pursuance of the resolution passed by the city counsel no gazette notification has been published whereby declaring the road as commercial. The instant suit has been filed under the original jurisdiction of this Honourable Court and also to claim damages, whereas, the cases referred are constitutional petitions wherein no evidence is required nor there was/is any claim of damages by the petitioners; hence the contents do not attract indulgence of this Honourable Court for the purpose of reliance of the cited petitions and the defendants do not have the authority to grant claimed damages and compensation to me as such no other remedy is available to me except to invoke the. Original jurisdiction of this Honourable Court.
26. Learned counsel for the plaintiff contended that the correct nomenclature was not ascertainable as such, the stay was granted against other defendants. However after appearance of the defendant No,5 the amended title has been filed with correct description i.e. A.R. CNG Point. It is further contended that defendants have caused colossal losses in terms of depreciation of my adjoining property as such I am entitled for the relief as claimed in the prayer clause/of the plaint.
It is further submitted that admittedly as per annexure A of counter affidavit to stay application the alleged commercialization took place on September 2007 then how the residential plot on a non- commercial road was converted as CNG commercial site, which is a big question mark. The status of the property as of today still continues to be residential and the CDGK can be directed to verify the same from their record. I had never applied for change in use I.E conversion to CNG site. The defendants in collocation with each other had continued to keep the secret until it transpired upon me that the residential bungalow which was demolished on the. Pretext of constructing a new house turned out to be a CNG site when the foundation for canopy laid. As such I had immediately rushed to this Hon'ble Court and obtained stay order but in sheer disregard of this Hon'ble Court and disrespect the defendant in collaboration with other contemnors continued to flout the orders on baseless grounds and the commissioner report on the record of the file speaks louder than mere assertions and presumptions. On one hand the defendant claims that the construction of CNG site was completed in September-2007 whereas on other hand the defendant claims to have obtained the permission from various agencies prior to the commercialization of the road and the property which is not understood by me.
27. Learned counsel stated that defendant No,2 be directed to produce the record of adjoining properties so as to ascertain the facts of the case. It is stated that advantages of CNG as a safe fuel are not disputed but die encroachment on compulsory open spaces, nuisance and potential threat of explosion/blast cannot be ruled out due to established and undisputed and deliberate oversight of various law implementation agencies enforcement government agencies are no secret to any body.
28. Learned counsel further urged that from the very outset the defendant No,5 had deceived me by saying that the construction is of residential nature. It later transpired upon me that the suit property will now be used as CNG site. I had filed the instant suit. Later the residents of the area having come, to know of the instant proceedings provided the copy of the objections filed by them in various departments to stay the construction of CNG site.
29. I have heard the learned counsel for the parties and perused the record and relevant case law cited by the learned counsel for the parties.
30. It is a matter of record that in various blocks t)f North Nazimabad, Karachi whereupon CNG filling stations proposed to be constructed have 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 permissions, NOCs and licenses have been obtained by the defendant after substantial violation of any rules, regulation and law has been made and in my tentative assessm ent 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.
31. 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 CbJG in all such countries. According to research, CNG is most environmentally friendly, safe and economical fuel source in the market today.
' It has been held in Rehmat Petroleum Service case (PLD 2006 Lahore 339) an 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.
32. 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 moreso, 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.
33. 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 shape of damage.
' In the light of what has been discussed above, the CMA No,51 of 2008 is dismissed with no order as to costs. Interim order passed earlier is vacated.