#TBE #TBS Ahmed Pirzada, A.A.-G. #TBE #TBS Highway Authority. #TBE #TBS Sarwar Muhammad Khan and Nisar A. Majahid for National #TBE ' KH. NAVEED AHMED, J.--- C.M.A. No,6942 of 2007 is an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. Wherein the plaintiff has prayed that the restraining order be passed against the defendants, their subordinate employees or anybody else acting on their behalf and under their control from harassing and pressurizing the plaintiff and from interfering into smooth running of his business of Filling and C.N.G. Station the suit property i,e, 8 Kanals and 5-1/2 Marlas land, situated in between Km.27 + 200-27 +300, Opp. Baqai University, North Bound Carriageway of Super Highway (M-9) and so also from interfering into construction work of installing Filling and C.N.G. Station at the suit property, which is carrying on as per plan approved by the Cantonment Board Malir, Karachi. The ad interim order on the suit property in the matter is already operating.
1. ' Facts leading to the suit are that the plaintiff had filed the suit on 9-8-2007 and subsequently amended title of the plaint was filed on 29-9-2007 wherein Gul Muhammad, Ellahi Bakhsh, S.H.O.
2. Adnan Shahid and T.P.O. Asif Aijaz have been made defendants while two official defendants are National Highway Authority and Province of Sindh through Secretary, Land Utilization Department.
3. ' In this case the legal battle is on three fronts; one stand has been taken by the Provincial Government, who claims to be the owner of the land, second stand has been taken by National Highway Authority, who claims that under section 2(j) of National Highway Authority Act, 1991, right of way (row) has been defined as the land acquired for the purpose of construction of National Highway or any other road assigned to the Authority and road has been defined under section 2(k) as "Road" means a road including land within the right of way and all works, such as carriageways, cartways, footpaths berms, side drains, culverts, bridges, tunnels, fences, posts, sign boards, plantation and lighting arrangements, intersections and medians assigned to the Authority.
4. ' The Chapter III of the Act, 1991 defines powers and duties of the authority. Under section 10(2)(xiii) of Act, 1991 power to raise funds has been described as under:- "10(2)(xiii) raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means, from time to time."
5. ' Learned counsel appearing for National Highway Authority has stated that it is the domain of National Highway Authority to use 200 feet road on both sides of the National Highway Authority (M-9). He has also drawn attention of this Court towards National Highways and Strategic Roads Control Rules, 1998, as amended in 2002. According to Rule 11(1)(d) the Authority is empowered to do following acts within ROW:--- "11(1)(d), erect and install any structure or amenities and carry out commercial activities."
6. ' Learned counsel for National Highway Authority has placed reliance on Fuel Auto Supply Company v. Federation of Pakistan 2005 M LD 1844. In this authority at page 1847, paragraph 2 the Court has observed as under:-- "(2) Precisely, relevant facts for disposal of all the above referred petitions are that National Highway Authority, a body corporate constituted under the National Highway Authority Act XI of 1991,as amendedin2001whose affairs, administrative/ministerial vest in Executive Board, headed by Chairman with designation of Chief Executive in pursuance of section 9 of the Act and its policy guidelines for tolls and commercial use of ROW (Right of Way) were approved by NHA Executive Board in its 92nd meeting held on 15-3-2000 and the Control Rules, in this behalf, were approved in its 104th meeting on 29-5-2002. In this manner, NHA was empowered to implement its policies for preservation/commercial use of ROW regarding establishment of filling/CNG stations, hotels/motels, restaurants, nurseries, factories, shops, Khokhas, kiosks, hoarding boards, utility lines etc. Section 10(2)(xiii) of NHA Act, 1991 empowered the NHA to raise funds (local and foreign) through borrowing, floating of bonds, sharing or leasing of assets or any other means from time to time. Similarly, rule 14 of the National Highways and Strategic Roads Control Rules, 1998 as amended in 2002 empowered the Authority to lease the Government lands for establishment of movable properties like nurseries, kiosks, Khokhas, vendor stalls etc. And for issuance of such-like licences and entering into lease agreements for the construction or use by private persons. NHA having been equipped with the statutory powers through its Chairman and General Manager (Operations) decided to utilize the Road Assets available to it for generating/collecting revenue through licences for construction of the approach roads, installation of filling/CNG stations and leasing of the available land of the ROW. The income collected through these measures wherein all the NOC fees, lease charges, approach and ground rental charges, administrative and other revenues generated from commercial use of ROW is channeled into Road Maintenance Fund Account of NHA. With this background, in order to achieve those objectives, NHA invited applications from general public through advertisement in all the leading newspapers throughout Pakistan for installation of filling and CNG stations on National Highways network spreading over 1800 kilometers /s1.;5 from Karachi to Peshawar in November, 2001 and onward."
7. ' Learned counsel appearing for defendant No,2 has drawn attention of the Court on Annexure ,;P/4", which is notice issued by National Highway Authority to defendant No,2 on 7-7-2007. Learned Advocate has also drawn my attention towards Annexure "P/6". Which is legal notice dated July 14, 2007, given to Project Director, M-9, National Highway Authority. He further states that in spite of receipt of this notice no reply was given. He had again sent Annexure "P/8", which is a notice dated 17-7-2007. Learned counsel wants to prove through these notices that on the relevant day possession of the suit property was with his client i,e, defendant No,2, who has been forcibly removed by five mobiles of the police and possession of the land was taken over from him.
8. Learned counsel has suggested that the Court should defer the matter till recording of the evidence and once evidence is recorded. Thereafter, some orders should be passed.
9. ' Learned counsel for the plaintiff has drawn attention of the Court to Annexure "P/10", which is a copy of suit filed by defendant No,2 in the Court of IInd Civil Judge, Malir, Karachi viz. Civil Suit No,230 of 2007. The contents of paragraph 6 of the said plaint are reproduced hereinbelow:-- "(6) That, the plaintiff being a landlord of the area has got priority rights over the lease of the front area of his land and he came to know that the defendant No,2 in collusion with rest of the defendants are trying to issue the leases for 30 years to defendant No,8 who is stranger for the area and the plaintiff being a local of the area is residing in the same vicinity and landlord have applied for the conversion of the suit property from 30 years to 99 years lease which is pending before the competent authority, as such if the defendant No,2 or rest of defendants wants to lease out any portion to anyone else than the plaintiff has got a priority rights over the same, as such the plaintiff moved the application to the Minister for Communications who has put the recommendable note for the Chairman, National Highway Authority/Member (OPP) "please submit report, immediately this is a matter of law and order" on 9-9-2007, which application was being received by the office of defendant No,2."
10. ' Learned counsel for the plaintiff has drawn attention of the Court to Annexure "A" to the plaint at page 17 of the Court file, then at page 19, lease agreement page 53 of the Court file, terms and conditions at page 71, Annexure "B" is no objection certificate, issued by C.D.G.K., page 73 is a no objection certificate, issued by Mukhtiarkar, Gadap Town, page 75 is no objection certificate, issued by Deputy District Officer, Revenue, C.D.G.K., Karachi, page 77 is no objection regarding installation of petrol pump, given by Senior Superintendent, Traffic Police, Zone II, Karachi, page 79 is no objection certificate from Government of Sindh, Civil Defence, District East/Malir, Block 14, Gulshan- e-Iqbal, Karachi, page 81 is no objection certificate issued by Optical Fiber system, page 83 is no objection certificate issued by K.E.S.C. For installation of petrol pump, page 87 is approval of building plan for Messrs Sapna Filling and C.N.G. Station , page 95 is letter of handing over/taking over of the possession of land measuring 8 Kanals and 5-1/2 Marlas land situated in between Km- 27+20027+300, Opp. Baqai University, North Bound Carriageway of Super Highway (M-9).
11. ' I have heard the Advocates for the parties and have reached on the conclusion that the plaintiff in this case has completed all the formalities for installation of C.N.G./Filling Station on the suit property. The only question to be decided is that whether the land belongs to the Government of Sindh or it belongs to National Highway Authority. This matter needs evidence. I hereby allow C.M.A.
12. No,6942 of 2007 as prayed during the pendency of the suit. The plaintiff shall construct the petrol pump and run the same at his own risk as to costs and consequences subject to final adjudication of the suit.
13. ' In view of the above order passed on C.M.A. 6942 of 2007, C.M.As. Nos.7924 of 2007 and 7317 of 2007 have become infructuous and are accordingly dismissed.