1. ' NADEEM AZHAR SIDDIQI, J. In both the above suits the plaintiffs have challenged the conversion of residential plot from residential to commercial and its use as C.N.G. Filling Station ' The facts and law involved in the application are common in nature, therefore, the same were heard jointly and are being decided by this common order.
2. ' The claim of the plaintiffs is that they are residents of Block-2 P.E.C.H.S., which comprises of residential houses and flats, whereas some houses have been occupied by the different schools. It was further claimed by the plaintiffs that the proposed C.N.G. Station situated on plot No,140-A, Block-2, P.E.C.H.S., Karachi, will create nuisance and pollution and is a great threat to the lives of the residents of the area. It was also claimed that the residential plot was covered in violation of Karachi Town Planning Regulations and Change of Land Use and Master Planning Bye-laws 2003.
3. ' The defendant No,8 filed counter-affidavit and written statement denying the assertions made in the plaint. It was submitted that after completing all the formalities the plot was converted from residential to commercial and that the plot is situated on Allama Iqbal Road which in its entirety converted into, commercial and the C.N.G. Filling Station was allowed to be installed after completion of required formalities.
4. ' Mr. M. Naim-ur-Rehman, learned counsel for the plaintiff in suit No,573/2007, submits that the plot was illegally and in violation of Karachi Town Building Regulations and Change of Land Use and Master Planning Bye-Laws 2003 converted for commercial use. He submits that before allowing commercialization neither opportunity of hearing was provided to the plaintiff No,4 nor information asked for was provided to it. He then submits that the plot in question is situated within 170 Feet of Junction of Allama Iqbal Road and Kashmir Road which is in violation of Regulation No,25-12-.6 and that the commercialization of plot for C.N.G. Station is in violation of Article 7 of the Bye-Laws which prohibits the use of converted plot for storage of dangerous articles, inflammable matters or other dangerous articles. Learned counsel further submits that before conversion of residential area into commercial no infrastructure has been provided and the conversion was allowed only to receive huge commercialization fees. He then submits that the policy of commercialization is itself against the vested rights of the residents of the area. Learned counsel has relied upon following reported cases:-- (1). Jibendra Kishore Achharyya Chaudhary v. The Province of East Pakistan and Secretary, Finance And Revenue (Revenue) Department, Government of East Pakistan (PLD 1957 SC 9);
(2) Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14);
(3) Karachi Development Authority v. Wali Ahmed Khan (1991 SCMR 2434);
(4) Basharat Ali v. Director, Excise and Taxation, Lahore (1997 SCMR 1543);
(5) Muhammad Mubeen-us-Salam v. Federation of Pakistan Through Secretary, Ministry of Defence (PLD 2006. SC 602);
(6) Karachi Building Control Authority v. Hashwani Sales and Services Limited (PLD 1993 SC 210);
(7) Mr. Zaheer Ahmed Chaudhry v. City District Govt. Karachi (2006 YLR 2537); and
(8) Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority (2007 SCMR 1126).
5. ' Mr. Muhammad Zahid Khan, learned counsel for the plaintiffs in Suit No,382/2007, apart from adopting the submissions of Mr. M. Naim-ur-Rehman, submits that no commercialization can be allowed in violation of the vested rights of the residents of area and they cannot be deprived to live peacefully in a residential area. He further submits that around the plot in question the houses are situated in which the schools are being run and the C.N.G. Station will be a constant threat to innocent students. He then submits that in the vicinity near the C.N.G. Station in question other C.N.G. Station are installed and that N.O.C. For the C.N.G. Station in question was issued in violation of Regulation No,25-12.1 to 25-12.15. He further claims that the owner of C.N.G. Station has demolished the footpath and the same has been included in the land of C.N.G. Station and placed on record photographs. Learned counsel has relied upon following reported cases:---
(1) Muhammad Rasab v. Muhammad Siddique Chaudhry (1998 MLD 2045);
(2) Sui Gas Transmission Company v. Suit Gas Employees Union (1977 SCMR 220);
(3) Muhammad Aref Effendi v. Egypt AIR (1980 SCMR 588); and
(4) Mian Muhammad Latif v. Province of West Pakistan Though The Deputy Commissioner, Khairpur (PLD 1970 SC 180).
6. ' Dr. Muhammad Farough Naseem, learned counsel for the owner of C.N.G. Station, submits that the C.N.G. Station was installed after conversion of plot and after obtaining permission from various departments after incurring heavy investment obtained from banks. He further submits that the plot is not situated within 170 feet of crossing of two major arteries and submits that Allama Iqbal Road does not cross Kashmir Road and the same is "T" Junction and cannot be termed as crossing.
7. He then submits that before commercialization the matter was advertised twice in the newspapers and refers to the list of major arteries obtained from City District Government Karachi which do not include the name of Allama Iqbal Road and Kashmir Road. He further submits that the plot in question is situated on a declared commercial road and the owner cannot be restrained to use the same as such. He then submits that the C.N.G. Is more safe than petrol and LPG and the C.N.G. Will not cause any damage to the environment of the area. He also submits that balance of inconvenience is in favour of the defendants, who invested considerable amount in installing the C.N.G. Station, which is ready in all respect and that the plaintiffs have failed to make out a prima facie case, as the plot has been converted and all types of N.O.Cs have been obtained the list of which is available at Page 93 in Part-II of Suit No,382/2007. He then submits that since the entire Allama Iqbal Road was declared as commercial there is no need of issuance of any public notice and hearing objections in this is regard. Learned counsel has also attacked Bye-law No,7 on the ground that the same is unreasonable, unworkable and vague, hence unenforceable. Learned counsel has relied upon following reported cases:---
(1) Messrs Mall Square Residents Association Karachi v. Messrs Mall Developers (Pvt.) Limited, Karachi (PLD 1997 Karachi 1);
(2) Rehmat Petroleum Service v. Public-at-Large (PLD 2006 Lahore 339);
(3) Mst. Zarina v. Province of Sindh (2004 CLC 767);
(4) Messrs Excell Builders v. Ardeshir Cowasjee (1999 SCMR 2089);
(5) Haji Amin v. Navaid Hussain (2008 SCMR 133);
(6) Capt. S.M. Aslam v. Karachi Building Control Authority (2005 CLC 759);
(7) Irfan v. Karachi Building Control Authority (2005 CLC 694);
(8) Star Trading Company v. The Pakistan Insurance Corporation (1987 CLC 61);
(9) Syed Ali Asghar v. Creators (Builders) (2001 SCMR 279);
(10) Mrs. Zunaira Khan v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resource (2008 YLR 1701) and
(11) Navid Hussain v. Jahangir Siddiqui (2007 CLC 1568).
(12) Apart from above, learned counsel has also referred unreported cases.
(13) Learned counsel has also relied upon the International and National Medical Reports on C.N.G: ' In rebuttal, Mr. Abdul Rahman, learned counsel for the plaintiff in Suit No,573/2007 states that the violations of Bye-laws and regulations are sufficient to establish a prima facie case. He then submits that in case of conflict between the provisions of regulations and bye-laws the regulations will prevail which prohibits conversion of individual plots and unless the plot is commercialized in terms of regulations the same is not valid.
8. ' Mr. Qaiser Jamil, learned counsel for C.D.G.K. Has adopted the arguments of Dr. Farough Naseem, learned counsel for the defendant and submits that bye-laws were framed in the larger interest of the residents of the area keeping in view the present and future need and whatever amount will be realized from the commercialization considerable amount will be incurred in improving and providing infrastructure in the area. He then submits that it is wrong conception that bye-laws have been framed to generate revenue and that C.D.G.K. Is an authority to provide basic civic amenities and utilities to the residents of Karachi and it is functioning in the interest of the residents of Karachi.
9. ' Learned counsel for the parties have argued at length in respect of various aspects of the case and cited numbers of case laws in support of their contentions. The plaintiffs have claimed violation of law in conversion of plot and violation of easmentary rights and violation of fundamental rights guaranteed under the Constitution of Pakistan. Learned counsel for the defendants have claimed that the plot was properly converted from residential to commercial and rightly put to use for C.N.G. Filling Sation.
10. Admittedly the plot in question is situated in a known residential area and was converted into commercial for using the same for C.N.G. Station. The question is whether the conversion was allowed in violation of bye-laws, Regulations and the fundamental rights of the residents.
11. ' The bye-law No,3 provides for publication of advertisement in two different newspapers and holding of open Kutchery by Union Council. Bye-law No,7 provides that the plot changed for commercial purpose shall not be permitted to use for stage of dangerous articles inflammable matters, or other dangerous articles. Article 8 of the Constitution provides that laws inconsistent with or in derogation of Fundamental Rights to be void. Article 9 of the Constitution provides for security of person. Regulation No,25-12 deals with C.N.G. Station and Regulation No,25-12-6 provides that no C.N.G. Station will be located within 300 feet of crossing of two major arteries.
12. ' From perusal of the record it reveals that the change of use of plot as C.N.G. Station was advertised in Daily Nation and Daily Nawa-e-Waqt, both dated May 30, 2006. No date of public hearing was mentioned in the advertisement. The plaintiffs in Suit No,573/2007 have objected for change of land used by its letter dated June 10, 2006 available at page 113. No counter-affidavit has been filed by the City District Government Karachi and it is not known whether the objections of Shehri were heard or not whether the kutchery was held or not. In the written-statement of C.D.G.K.
13. Without giving any details it was only stated that on 4-5-2005 the Nazim of UC No,7, Jamshed Town, issued N.O.C. Regarding change of land use subsequent to the hearing of complaint of Shehri. It is worth mentioning that change of land use from commercial to CNG was advertised on 30-5-2006 and the Shehri objected on 10-6-2006 and the NOC was issued on 4-5-2005 much before the above dates on which the publication was made. In case the Shehri was not heard and commercialization was allowed without hearing it is not only in violation of the specific provisions of bye-laws, but is also in violation of the principle of natural Justice. Since no detail of open Kutchery is available on record, subject to rebuttal it can be said that he commercialization was effected without hearing Shehri in violation of specific provision of bye-laws.
14. ' Bye-law No,7 provides that converted plot shall not be permitted to use for storage of dangerous articles, inflammable matters or other dangerous articles. The word "Dangerous" has been defined in the Black Law Dictionary in its Sixth Edition as attended with risk, perilous, hazardous and unsafe and the same word was defined in Chambers Dictionary aslikely or able to cause harm or injury.
15. The word "Inflammable" has been defined in the same dictionary as easily set on fire.
16. 'C.N.G. Is the short form of Compressed Natural Gas; which is also highly inflammable and can easily be set on fire and allowing installation of a C.N.G. Station on a converted plot, amounts to allowing storage of dangerous articles and inflammable matters which appears to be against the specific provision of bye-laws. On record copy of judgment passed in High Court Appeals Nos.113 and 121 of 2007 to show that C.N.G. Filling Station was allowed to be installed on a converted plot.
17. From the said judgment it appears that in that matter the N.O.C. Was properly issued and the Court has held that C.N.G. Station comes within definition of commercial activity. In the said judgment, there is no specific finding with regard to the prohibition contained in bye-law No,7 which appears to be a special provision and will take preference over general provisions.
18. ' Regarding the violation of law the Honourable Supreme Court in the case of Messrs Excell Builders and others v. Ardeshir Cowasjee and others (1999 SCMR 2089) has held that simpliciter the fact that the conversion of a residential plot on a main road into a commercial plot is warranted on account of the change in the situation would not justify the violation of any provision of any law or building bylaws or regulations, nor it would warrant grant of permission for a high-rise building having 17/18 floors. The Government, or the Authority concerned is under obligation to decide the question of number of floors keeping in view the extent of availability of utility services like water; electricity, gas, sewerage lines, streets and roads in the locality involved and the permission for construction of a proposed building should be of minimum floors, which may cause minimum inconvenience and discomfort to the residents of the locality.
19. Station in violation of specific provision of law and the same is not sustainable.
20. ' Learned counsel for the parties cited several case laws in support of their contentions. Some case laws were cited for academic purposes and few of them have some relevance with the merits of this case. I have anxiously examined the case laws. The point involved in this case apart from other points is the installation of C.N.G. Station in violation of bye-law No,7. In none of the cases cited by the learned counsel for C.N.G. Station owner the question of installation of C.N.G. Station in violation of bye-laws No,7 was before the Court.
21. ' The plaintiffs have also claimed that the conversion of plot and installation of C.N.G. Will create nuisance and is against their fundamental rights guaranteed under the Constitution of Pakistan.
22. Article 9 of the Constitution of Pakistan provides that no person should be deprived of life or liberty save in accordance with law. Article 18 of the Constitutions provides for freedom of trade, business or profession. No doubt it is the right of every person to live in a peaceful and secured environment and to protect his rights but while protecting his right he has to consider the rights of the other also.
23. If the law permits commercialization of plots or change of land use the same cannot be objected, as held in the case of Haji Amin v. Navaid Hussain & others (2008 SCMR 133) and Navaid Hussain and others v. Jahangir Siddiqui and others (2007 CLC 1568). However, it can be looked into whether by allowing conversion specific provision of law has been adhered to or not. In case of violation of specific, provision of law the conversion or change of land use can be questioned. In the reported case of Capt.
24. ' S.M. Aslam and others v. K.B.C.A. (2005 CLC 759) a learned Division Bench of this Court on the basis of notification issued by the Government of Sindh has held that once the Notification of the Provincial Government has amended the Zonal Scheme by converting the area into Commercial Zone, there arises no occasion for the petitioner to seek change to land use as the status of subject plot already stood changed from residential to that of commercial on the issuance of said notification and, therefore, Resolution No, 383 dated 6-1-2004 of the City District Government would not extend to cover the plot of the petitioner, which ex facie would apply to cover the cases covered under sub-clause (4) of Article 40 of the K.D.A. Order. In this case the commercialization was allowed in terms of Bye-laws 2003 and not on the basis of Notification of 1998 and therefore till such time the bye-laws are holding field observance of the same are necessary and the authority can not be allowed to bypass the same at its whims.
25. ' For proving nuisance, evidence is required and any observation in this regard will prejudice the case of the parties and at this stage it will not be proper to give findings in this regard. The contention of learned counsel for the owner of C.N.G. Station that bye-laws No,7 is not enforceable cannot be decided at this stage, as it has to be examined whether the same are within the ambit of relevant statute or not.
26. ' In the reported case of Karachi Building Control Authority v. Hashwani Sales and Services Limited (PLD 1993 SC 210) the Honourable Supreme Court has held that while examining the question of vires of the statutory regulations or rules, the Court should make efforts to uphold them as valid. Liberal construction should be placed on such regulations/rules and the paramount consideration should be public interest are public good etc. ' From the above discussion it is clear that the C.N.G. Station was allowed to be installed in violation of bye-laws Nos.3 and 7 and this is sufficient to hold that the plaintiffs have made out a prima facie case and balance of inconvenience is also in their favour and it at this stage C.N.G. Station is allowed to be operated the only sufferers will be the residents of the area.
27. ' In view of the above, C.M.A. No,2658/2007 is Suit No,382/2007 and C.M.A. No,4768/2007 in Suit No,573/2007 are allowed as prayed.