' KHALID ALI Z. QAZI, J.-- C.M.A. No,9249 of 2007: This is an application under Order XXXIX Rules 1 and 2 filed by the plaintiff seeks orders restraining against the defendant No,5 and/ or anybody else claiming or acting through or under them from installing a C.N.G. Station at the plot bearing No,C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd, Abul Hassan Isphani Road, Karachi and further restrain the defendants i.e, A District Coordination Officer,. Oil & Gas. Regulatory Authority, and Karachi Building Control Authority, and/or anybody else claiming or acting through or under them from issuing the requisite license for the installation of C.N.G. Station and also restrain them from approving the building plan of C.N.G. Station on the plot No,C-4 situated at Karachi Divisional Commissioner Employees Cooperative Housing Society Ltd., Adul Hassan Isphani Road, Karachi, until decision of this suit.
2. Brief facts of the case requisite for disposal of this application are that the plaintiffs are the owners of the plot bearing No,C-12, situated at Karachi Divisional Commissioner Employee's Cooperative Housing Society Ltd., Abul Hassan Isphani Road, measuring 600 Sq. Yards hereinafter referred to as the plaintiffs plot. The plot was originally allotted to one Mr. Ali Muhammad Nohrio however after his sad demise the property was devolved in plaintiffs Nos.1-a to 1-e who are the widow, sons and daughters of deceased Ali Muhammad Nohrio. The defendant No,6 claimed to be the owner of the plot No,C-4 situated in the aforesaid Housing Society and also measured approximately 600 sq. Yards hereinafter referred to as the subject plot. Vide letter dated 10th April, 2006 the Society i.e, defendant No,6 wrote a letter to the plaintiffs inquiring about the N.O.C. For the operation of the C.N.G. Station on the subject plot or in the alternate to tender the objections against the application made by the owner (defendant No,5) of plot No,C-4. On 24th of April 2006 the plaintiff's tendered the objections to the Society within the time and on 28th April, 2006 plaintiffs again tendered the objections to the EDO Master Plan C.D.G.K. Civic Centre, Karachi mentioning that the plaintiffs have serious objection against the alleged installation of C.N.G. Station on the plot which is adjacent to the plot of the plaintiff and divided by a common boundary wall. The plaintiffs intend to construct house at the said plot which is purely residential. It was contended that the residential status of the area and the safety of the occupants and residents of the area E would be seriously affected in case the defendant No,5 is allowed to install a C.N.G. Station. On receipt of the said objections, the Society i.e, defendant No,6 issued letter to the defendant No,5 mentioning that under the procedure and under the law it is necessary that the N.O.C. From the adjacent owners of residential plot in addition to satisfying the managing committee of the society be obtained apart from the objections from the General Public which would be invited by public notice by the Society.
The plaintiffs have now recently learnt through reliable resources that the defendant No,5 has got the permission for the installation of the C.N.G. Station at the subject plot. It is alleged that the Society never invited the public objections nor the plaintiffs were heard in respect of the objections which were submitted in terms of the annexure annexed with the plaint. Neither the Society nor defendants Nos.1 and 3 heard plaintiff in respect of their objections which were submitted well before time. Under the law it is mandatory to call the objectors for hearing of their objections.
3. Mr. Imtiaz Agha learned counsel for the plaintiff stated that the alleged conversion of residential plot into C.N.G. Plot is in total violation of the procedure laid down under Karachi Building and Town Planning Regulations. At the very outset the objections filed by the plaintiff were not taken into consideration and in fact they are still pending for hearing and the concerned authority by ignoring the objection raised by the plaintiff have acceded to convert the subject residential plot into C.N.G, Station which rendered the conversion as illegal and unlawful. Even otherwise the regulations does not provide the conversion of the subject plot into C.N.G. Plot. The subject plot is situated in the residential area and is located around residential plots and as such it would be highly unjustified if such conversion is allowed or the defendant No,5 is allowed to install C.N.G. Station on the subject plot.
4. It is further argued that the law related to the conversion plot into C.N.G. Station have been introduced by Karachi Building and Town Planning Regulations and it provides no scope or room for the conversion of said plot into C.N.G. Plot. Recently the proposed amendment clarified that the area of the plot upon which the C.N.G. Station could be installed should not less than 750 sq. Yards and that the minimum distances the two C.N.G. Stations should not be less than 0.75 mile. One C.N.G. Station is already functioning at a distance of less than 0.75 miles in the same lane and the other is in opposite side, which is also less than prescribed distance. The MPGO in total violation of the rules and regulations made by K.B.C.A, has denied the hearing of objections which is an integral part of these regulations to be followed prior to conversion of subject plot into C.N.G. Station.
5. In reply to the application under Order XXXIX, Rules 1 and 2, C.P.C, defendant No,5 filed counter affidavit wherein it is stated that defendant No,5 is the owner of the said plot bearing No,C-4 and the defendant No,6 is the Housing Society in which the plot of defendant No,5 is situated. After due execution of a conveyance deed dated 23-7-2005 the property was transferred in favour of defendant No,5 by the defendant No,6 authorities and it was earmarked as a commercial plot bearing No,C-4. The defendant No,S is the owner of the said plot bearing No,C-4 and the defendant No,6 is the Housing Society in which the plot of defendant No,5 is situated. After due execution of a conveyance deed dated 23-7-2005 the property was transferred in favour of defendant No,5 by the defendant No,6 authorities and it was earmarked as a commercial plot bearing No,C-4.
Learned counsel contended that the plaintiff had tendered objections to the defendant No,6, opposing the installation of a C.N.G. Station at the subject plot. It is added herein that the defendant No,5 had initially applied for a N.O.C, for the installation of a C.N.G. Station at the subject plot and the request of the answering defendant was acceded to by the defendant No,6 subject to removal of objections/issuance of N.O.C.'s from the concerned quarters vide its letter dated 10-5- 2006. It is added herein that two individuals were named within this letter of the defendant No,6 bearing one Mr. Azhar Thanvi and Ms. Asiya in response to the above mentioned correspondence the answering defendant addressed two separate letters dated 24-5-2006 and 19-6-2006 to the defendant No,6 stating that the said plot was on the main road and had been duly converted to a commercial plot keeping in view the C.N.G. Bye Laws of KDA MPGO and K.B.C.A. It was also highlighted by the defendant No,5 that Abul Isphani Road is fully Commercialized and there are already three C.N.G. Stations operating one which is two plot away from the subject plot. It was also stated by the defendant No,5 that one of the objectors was in fact the owner of a C.N.G. Station which is two plots away from the subject plot hence the objections were unfounded. It is further urged that Ministry of Petroleum and Natural Resources, Policy Wing issued a direction dated 24-6- 2006 titled "problem faced by Compressed Natural Gas (C.N.G.) industry-Rational for involvement of various agencies for grnatnig clearance for installation of C.N.G. Station." Clause (II) of the said direction stated for installation of stand alone C.N.G. Station at raw site/ new locations, N.O.C.'s only from the following authorities be obtained: Gas utility company, department of explosives, Civil Defence, Tehsil Municipal Officer, and third party certification from HDIP including reputable Private Sector Company of high standards. In pursuance of the above mentioned direction from the Ministry of Petroleum and Natural Resources, a letter was addressed by the defendant No,6 to the defendant No,5 dated 31-7-2006 titled "N.O.C, for installation of C.N.G. Station". Through this letter the defendant No,5 was intimated by the defendant No,6 that keeping in view the new policy decision of the Ministry of Petroleum and Natural Resources there was no longer a need for N.O.C, from the defendant No,6, hence the defendant No,5 was free to proceed with the installation of the C.N.G. Station at the subject plot.
7. It is contended that defendant No,5 was also directed by the defendant No,6 vide its letter dated 9-10-2006 to furnish a sunt of Rs, 12,00,000 as conversion fee in respect of the subject plot. The defendant No,5 made the requisite payment through two separate pay orders dated 11-10-2006 and 14-10-2006. After the payment of the said conversion fee the defendant No,6 was pleased to grant an N.O.C, in favour of the defendant No,5 on 14-10-2006. Keeping in view the directive of the Ministry of Petroleum and Natural Resources, the defendant had already obtained the due N.O.C, from the defendant No,6 for installation and had also obtained license from the Oil and Gas Regulatory Authority, being defendant No,4 on 12-10-2005. He was granted an N.O.C, for the conversion of the said plot for C.N.G. Station utilization by the EDO (Revenue), CDGK on 16-11-2005 the defendant No,5 was also granted valid N.O.C, from the competent ' authority Master Plan Group of Offices, CDGK being defendant No,3 upon payment of Rs, 18,50,000 for the conversion of the said plot. Lastly a permission was also granted by the Explosives Department, Ministry of Industries, Government of Pakistan on 8-5-2007 as per the Federal Government policy dated 25-6-2006 after duly obtaining N.O.C, dated 19-2-2007 for such purpose from the District Coordination Officer, CDGK. Hence the defendant No,5 had legally obtained all required N.O.C.'s from all the requisite authorities who granted such N.O.C.'s only after due examination of all objections keeping in view that the C.N.G. Station was proposed to be constructed on a duly commercialized plot and also the safety of all residents within the vicinity of the station, including the current plaintiff.
8. It is contended that defendant No,6 had communicated the objections of the plaintiff to the defendant No,5 and defendant No,5 had evidenced the malice on part of the objectors and the same was granted due N.O.C, from the defendant No,6. Once it had examined the objections and safety of the plaintiff he also highlighted that the subject plot is a commercial plot which is facing Abul Ispahani Road whereas the plot of the plaintiff is facing the back lane. The plot is situated on a road which is entirely commercial and also includes C.N.G. Station, this is evidenced by ' the Nazir report dated 30-12-2006 in suit bearing No, 1587/2006 which is identical suit concerning the same claim. Defendants and subject property the plaintiff has not raised any. Objection in respect of the C.N.G. Station which is already in operation all two plots away from the plot of the answering defendant. The defendant No,6 had duly examined the representations of the plaintiff as well as that of the defendant No,5 and keeping in view that there are 3 C.N.G. Stations already operating on the main road and the subject plot is a commercial plot, the defendant .No,5 was granted the N.O.C, for installation of a C.N.G. Station at the subject plot. It is further contended that as per directions of the Federal Government dated 24-6-2006 there is no express requirement to obtain N.O.C, from the current plaintiff.
9. It is urged that conversion of the said plot has been done legally keeping all laws and procedures set out by the Karachi Building and Town Planning Regulations. The said conversion was done keeping in view that Abul Ispahani Road is a Main Road which is a commercial strip in its entirety and there are 3 other C.N.G. Stations operating right next to those of the defendant No,5.
Additionally, the conversion was based on N.O.C.'s being obtained by all requisite authorities and payment of all fees by the defendant No,5. The MPGO CDGK Town Planning has followed all requisites requirement as far as procedure is concerned by inviting public objections by publications in the Daily Time and Daily Jasarat dated 30-8-2005. It is further contended that a learned Divisional Bench of this Court has ruled in Constitutional petitions bearing Nos. 1443/07, 1126/2007, 1255/07, 259/07 and 1906/06 dated 7-12-2007, wherein the subject matter is the same as the current claim of the plaintiff, that the said petitioners were required to approach the competent authorities under the OGRA Ordinance, 2002 as well as Karachi Building and Town Regulations, 2002 for redressal to their grievances, keeping in view that the plaintiff has not approached the concerned authorities the suit is no longer maintainable and the plaintiff can not seek relief from this Court.
10. It is further urged that the plaintiff has not disclosed the fact that various detailed studies have been conducted by various reputable International organizations who have arrived at the conclusion that C.N.G. Gas is not hazardous because the same is not even marginally flammable relative to petrol gas. It is further stated that the said plot of the plaintiff is an open plot which faces the inner lane whereas the subject plot is facing the main road where there are three C.N.G.
Stations operating currently. Thus the .Contention of the plaintiff that the operating of a C.N.G.
Station is unsafe is unfounded.
11. It is urged that the subject plot has been dully converted into a commercial plot keeping in view all the law and procedure laid out is the Karachi Building and Town Regulations after due examination of the locality and payment of requisite fees. There is an admission by the plaintiff that there are C.N.G. Stations operating in the locality which proves that the claim of the plaintiff is tainted with malice. The proposed plan mentienod by the plaintiff has not been drafted on 7-7- 2007 whereas the subject plot had been converted by the requisite authorities in year 2006, hence the law (if enacted) cannot be allowed to have any retrospective effect on the plot of the defendant No,5. In any case the proposed law has been incorrectly cited and as per the proposed because the required distances between two station is 0.46 mile and not 0.75 mile and has been wrongly canvassed by the plaintiff. As per C.N.G. Bye laws clause 25-12.8, clearly states that C.N.G.
Station is allowed only on roads having at 60 feet width in case of commercial and industrial plots and 100 ft in case of residential plots. Since Abul Ispahani Road is over 100 feet wide, no defect lies in the conversion of the said plot and there is no violation of any law or procedure by the MPGO.
12. 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.
' It is a matter of record that Abul D Hassan Isphani Road whereupon C.N.G. Filling station proposed to be constructed has been in use as commercial and almost all the residential plots have been converted from residential to commercial including the plot belonging to the plaintiff after making the payments of requisition commercialization fee to the defendants. It is also matter of the record that various commercial activities are already being carried out on the same road which including the C.N.G. Station as well but the plaintiff raised no objection in respect of the other plot on the same road. It seems that the plaintiff has got no legal character, right or status in the property in question and may hit under section 42 of Specific Relief Act. It is pertinent to mention that all permission, N.O.C, and licenses have been obtained by the defendant No,6 after substantial violation of any rules, regulation and law has had been made and in my tentative assessment no cause accrued to the third party. Reliance may be placed on PLD 2007 SC 472, 2008 SCMR 133, 2004 CLC 767 and 1984 CLC 340.
14. It appears that C.N.G. Stations and petrol pumps are located in every residential area as well as residential / commercial industrial area. Even adjacent to schools, commercial plazas etc. In addition to Pakistan C.N.G. Station are common in U.S.A, UK, Canada, China, India, Italy, Argentina, Brazil etc. And vehicle run on C.N.G. In all such countries. According to research, C.N.G. 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) in identical case that no restriction thereto could be read into the law in the absence of a specific provision in the law regulating or otherwise applicable to such trade, business or profession as right to carry on business, trade or profession is a fundamental right guaranteed by Article 18 of the Constitution of Islamic Republic of Pakistan, 1973.
15. It is well settled proposition of law that relief of injunction is discretionary and Court is not bound to grant it in every case and it is not to be granted unless the Court is satisfied as to its real need.
The discretion is to be exercised in accordance with reason and sound judicial principles. Court while dealing with application for grant of injunction has to look and to assess all the circumstances obtaining in suit and more so, to equitable relief. Discretion vested in a Court of law has to be exercised judicially and equitably ensuring all the times, that the twain of law and justice are adequately applied and administered. Reliance may be placed on 2000 SCMR 780.
16. At present, presumption as required under illustration of Article 129, Qaunu-e-Shahdat 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 trial. 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 is 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 damages.
'In the light of what has been discussed above, the C.M.A. No,9249/2006 is dismissed with no order as to costs. Interim order passed earlier is vacated.