1. ' SAJJAD ALI SHAH, J.---Through this order I intend to decide two applications under Order XXXIX Rules 1 and 2 C.P.C., one being C.M.A. No, 4295 of 2008 in Suit No,694 of 2008 and the other being C.M.A. No, 7673 of 2008 in Suit No, 1063 of 2008.
2. ' Briefly stated the facts are that plaintiffs in Suit No,694 of 2008 i,e, Messrs Barret Hodgson Pakistan (Pvt.) Ltd., and Messrs Salim Habib Education Foundation, are defendants Nos. 1 and 2 in Suit No, 1063 of 2008 and hereinafter are referred to as the plaintiffs , whereas plaintiffs in Suit No, 1063 of 2008 i,e, Pakistan Refinery Limited are defendant No,1 in Suit No,694 of 2008 and hereinafter referred to as `defendant No,r. The plaintiffs claim to have acquired on 30-3-2006 a piece of land admeasuring six acres in Deh Dih, which was allotted for the specific purposes of establishment of an educational institution of international standard. The plaintiffs started the work of construction and raised substantial construction by spending Rs,24,81,88,193 and further have entered into various contracts committing to spend Rs,48,71,37,360 in that pursuit. It is claimed that on 8-8-2007 plaintiff wrote a letter to Executive Officer Korangi Creak pointing out that 'defendant No,1' is discharging waste water in open creating problem in the construction of the school. Upon enquiry, the defendant No,1 undertook to redirect its waste water and for that purpose a request was made to Cantonment Board. It is the case of the plaintiff that thereafter on 23-4-2008 it received a letter from defendant No,1 stating therein that defendant No,1 is a Kay-Point 1-A Installation, therefore, under section 10 of the Civil Defence (Special Powers) Rules, 1951, hereinafter referred to as 'the Rules, 1951', no construction can take place within 200 yards of defendant No, 1 's parameter, therefore, to immediately stop the construction, giving rise to filing of suit for injunction and damages and the instant application that defendants be restrained from interfering or disrupting the plaintiffs' construction.
3. ' Likewise, defendant No,1 has filed suit bearing No,1063 of 2008 against plaintiffs claming that due to the extreme sensitive nature of the business, the plaintiff has been classified as Key-Point 1-A installation. It is asserted that key-point 1-A Installation are those installations which are of vital importance to the country in its ability to fight a war and if such structure, installation or establishment were to get damaged or destroyed or shut down for any reason then it would cause severe damage to war time efforts. It is asserted that the Federal Government in exercise of the powers conferred by Rule 10 of the Rules 1951' has directed that no structure shall be constructed within a distance of 200 yards from the key-point 1-A Installation, despite the plaintiffs are raising construction across 200 feet wide road by completely disregarding the risk it poses to the health, safety and lives of hundreds of children, teachers and supporting staff who eventually would be admitted to work by the defendants' school. It was further stated that though the plaintiffs had only informed the defendants a legal position whereby they could not have raised the construction but they malafidely filed a suit and obtained an injunctive order restraining the defendants from interfering into the work of construction which gave rise to filing of the instant suit for declaration, mandatory and prohibitory injunction and damages along with C.M.A. No,7673 of 2008 with the prayer to restrain the plaintiffs from raising construction pending disposal of this suit.
4. ' Mr. Zahid Ibrahim, learned counsel appearing for the plaintiffs, has contended that the defendants, as evident from the correspondence on record viz. Letters, dated 8-8-2007 and 24-10- 2007 (pages 41 and 43 of the file) were fully aware since, 2007 that the plaintiffs were raising construction on the said plot, the boundary wall whereof was constructed in 2006 despite they did not take any action and permitted the construction half way through and it was only when the dispute regarding discharge of waste water arose, the defendants have raised a plea that they being a Key-Point 1-A Installation which plea not only appears to be mala fide but hit by the doctrine of laches. It was further contended that the plaintiffs have failed to produce any letter from defendant No,3 i,e, Federation of Pakistan to show that they have been declared Key-Point 1-A Installation in terms of section 10 of 'the Rules 1951'. It was next contended that defendant No,2, (Province of Sindh) itself, hasallotted the plot, in question, to the plaintiffs for specific purpose of raising educational institution and such activity was duly approved by the Cantonment Board Korangi in May, 2007. It was lastly contended that the Rules do not absolutely prohibit the raising of construction within 200 yards' parameter from installation rated 1-A but requires the clearance of lay out and material from Key-Point Intelligence Division and in the instant case the defendant No,3 or the Key-Point Intelligence Division have not objected to or stopped the construction.
5. ' On the other hand, Mr. Rashid Anwar appearing for defendant No,1 has contended that the plaintiffs are constructing a school which is completely within the reach of any explosion of fire at the existing refinery of defendant No,1 thereby exposing hundreds of students/ children and staff to unnecessary risk or injury. Learned counsel, while stressing the damage which might be caused due to fire and explosion at the defendant No, l's refinery, has referred to various incidents of fire/explosions at oil refineries in different countries and the losses caused thereby to the life and property and has urged that looking to the extent of damages caused by such incidents the prohibited parameter should have been one kilometer to minimize the risk. It was next contended that defendant No,1 is undertaking the process of gradation and expansion with the costs of US$ 450 million in order to increase its production with significant reduction of sulfur contents in petroleum products which, in turn, would reduce pollution. However, the process would, significantly, increase in temperature and pressure in defendant No, l's refinery which in case of any accident or attack would result in greater damage to the surrounding than before. It was, therefore, contended that in such circumstances the construction of school by plaintiffs within parameter of 200 yards of defendant No, l's factory be stayed.
6. ' During the arguments, it was enquired from Mr. Rashid Anwar appearing for defendant No,1 as to whether there is anything on record to show (i) that defendant No,1 has been declared a key-Point Installation by the Federal Government: (ii) to satisfy the Court as to whether the distance of 200 yards is to be measured from the outer wall of the Key-Point installation or the Installation, itself. At that juncture, Mr. Rashid frankly conceded that he was not in a position either to produce any letter from the Federal Government whereby the Defendant No,1 has been declared key-point installation or to say anything about the point from where the distance of 200 yards is to be measured. The matter, consequently, was reserved for orders. Meanwhile, Mr. Rashid Anwar moved an application being C.M.A. No,8721 of 2008 in Suit No,1063 of 2008 and contended that the facts narrated in the application are very necessary and important and require consideration before passing the order.
7. Notice, consequently, was directed. Counter-affidavit was filed on behalf of the plaintiffs and thereafter on 12-9-2008, by consent, the application was disposed of with the observation that the facts narrated in the said application and the counter-affidavit would be taken into consideration while passing the order.
8. ' The defendant No,1 along with the said application has produced a letter from Key-Point Intelligence Division, Director General, ISI, whereby it has been certified that the Defendant No,1 has been declared as Key-Point Installation and various other letters to show that the defendant No,1 was surveyed as key point Installation by various agencies.
9. ' I have examined the documents produced on record and have considered the arguments at bar.
10. ' The defendant No,1 has placed reliance on a booklet known as `Security and Protection of. Key Point' and has therefrom reproduced certain excerpts in C.M.A. No, 8721 of 2008. In the said booklet 'Key Point' and 'categories of and threats to key Points' are defined as follows:-- ' Key Point: ' All those installations in public as well as private sector which are considered essential to the normal working of the economy as the destruction of which is likely to cause severe impairment of the National war effort in a period of hostility."
11. "A. Categories of and Threats to Key Points ' Key points and Vulnerable Points
(1) Key Points are those structures, installations, factories or other establishments which are of vital importance to the country in its readiness and ability to fight a war and in the event of whose destruction or severe damage, the loss would impair the vital national war effort.
(2) The Vulnerable Point (VP) of a Key Point is the most sensitive part or portion of the installation which, if destroyed or damaged, would either badly affect the functioning of the installation or make it totally unserviceable." (italics supplied)
12. ' After going through the definition of the Key Points Installation, as reproduced above, an impression is created that the prohibition of raising construction within the prohibited parameters of the Key-Point Installation is for the safety of such installation and such stance appears to be in direct contradiction with the stand of defendant No,1 who wants the maintenance of prohibited parameter for the safety of construction which is being raised per version of defendant No,1 within prohibited parameters.
13. ' However, a perusal of Rule 10 of Rules 1951 reveals that the prohibition of raising construction within 200 yards of the Key-Point Installation could either be for the safety of the installation or the building which is to be raised within the prohibited parameters. It is for this reason that Rule 10 of the Rules 1951 does not place an absolute bar on the raising of construction within the prohibited parameters of the Key Point Installation and it only requires the permission of the Central or Provincial Government and that too for the purposes of rendering the construction of the building within the prohibited parameters more secure.
14. ' In the instant case, a perusal of the plaint reflects that the cause of concern for defendant No,1 is the construction of the school by the plaintiff in a very high risk zone which in case of any fire or explosion at the refinery of defendant No,1 would endanger the lives of innocent children as well as the staff who would attend the school. Mr. Rashid Anwar, Advocate for defendant No,1 has also stressed by referring to various fire incidents taken place in Oil Refineries in different parts of the world and damage caused therefrom and urged that the prohibited parameter should comprise of at least one kilometer area for the safety and security of the construction near such high risk zone.
15. However, there is nothing on record even to suggest nor it is the case of defendant No,1 that the construction so raised in the shape of school poses, any threat to the safety and security of defendant No,l.
16. ' It is also important to observe that the refinery of the defendant No,1 is spread over an area of 200 Acres and despite specific query nothing was brought on record to show from which point the distance of 200 yards .Is to be maintained except certain excerpts from a booklet, the veracity whereof has been seriously disputed by the plaintiffs.
17. ' I am of the view that in cases where the Key Point Installation enforces the maintenance of prohibited parameters for its own safety and security then construction within the prohibited parameters may give a cause of action to Key Point Installation, however, in cases, like the one in hand where the Key Point Installation has no threat to its own safety and security but brings an action against a construction if raised within the prohibited parameters for the safety and security of such construction, then it hardly gives a cause of action to Key Point Installation but it would be taking upon itself the function of the Provincial, or Central Government.
18. ' In the instant case, the Provincial Government has, itself, granted the land upon which the school is being constructed, the Cantonment Board has approved construction plan and the construction is half way through, Federal Government, being one of the defendants, has neither supported the case of defendant No,1 nor has taken any action against the plaintiffs in terms of sub-Rule (1) of Rule 10 of Rules 1951. Furthermore, even in accordance with the version of defendant No,1 the maintenance of prohibited parameters of 200 Sq. Yards would not mitigate the risk unless such area is extended to one kilometer.
19. ' In the Circumstances and for the reasons, narrated above, C.M.A No, 4295 of 2008 of plaintiffs is allowed whereas C.M.A. No,7673 of 2008 of defendants is rejected. However, it will be open for the defendant No,3 to impose any condition for the purposes of rendering the building of the plaintiffs more secured and protected for the persons using the same in accordance with Rule 10 of Rules 1951.