' KHALID ALI Z. QAZI, J.--- C.M.A.No,3835 of 2008 is an application moved by the Plaintiff under Order XXXIX Rules 1 and 2 read with section 151, C.P.C. Seeking an order of restraint against the construction and operation of the proposed Petrol Pump/CNG Station on Plot No,D-12, SITE Karachi ("the suit plot"), owned/occupied by the defendant No,2. C.M.A. No,6219 of 2008 is an application under Order XXXIX Rule 4 read with section 151, C.P.C. Moved by the defendant No,2 seeking discharge/vacation of the ad-interim order dated 29-4-2008 passed in C.M.A. No, 3835 of 2008.
The points of facts and law being common, the said two applications are being disposed of through the instant consolidated order.
2. The brief facts giving rise to the present case are that the plaintiff, a registered partnership, claims to be the owner/occupier of two Plots bearing Nos.D-252 and D-259, SITE, Karachi on which it has allegedly set up a garment factory since 1996. It is the case of the plaintiff that the suit plot i,e, D-12, SITE, Karachi, owned and occupied by the defendant No,2 adjoins the plots owned by the plaintiff. According to the plaintiff, without invitation of any public objections or notice, the suit plot has been sub-divided and converted from industrial to commercial and on a portion thereof SITE Limited i,e, the defendant No,1 has permitted the construction/establishment of a Petrol Pump/CNG Station.
3. The plaintiff has sought a restraint order against the construction and operation of the proposed Petrol Pump/CNG Station on the following grounds:---
(a) the conversion of the suit plot from industrial to commercial is barred under the Karachi Buildings and Town Planning Regulations, 2002 (the "2002 Regulations");
(b) no public notices or objections were invited before the conversion and grant of the impugned permission by defendant No,1, which is not only a breach of natural justice but is also against the provisions of the 2002 Regulations;
(c) the installation of the petrol Pump/CNG Station shall adversely impact the environmental conditions in the area and shall be a serious hazard to the safety and life of the population and property in the immediate vicinity;
(d) the impugned Petrol Pump/CNG Station shall cause nuisance, pollution, traffic jams and obstructions to the plaintiff in the enjoyment of its property;
(e) the impugned action shall also derogate the plaintiff's easementary rights.
4. In contrast, the contentions of the Defendants Nos.1 and 2 are underscored as follows:---
(a) the plaintiff is no longer a valid owner of the property claimed by it;
(b) the plaintiff's factory is set up on a 'Ganda Nala' and as such it is nothing but a trespasser;
(c) the plaintiff's property does not abut the suit plot, which can be demonstrated from the satellite image downloaded from the Google;
(d) The owner/lessor of the land is SITE Limited i,e, the defendant No,1, which being a corporate entity performs functions through decisions taken by its Board of Directors. As per the decision of the Board of Directors of SITE recorded in the minutes of meeting dated 17-1-2001, the East Avenue from Nazimabad to Gulbai has been commercialized at the rate of Rs,1,000 per sq. Yds. In terms of the commercialization policy recorded in the said minutes, petrol pumps and CNG filling stations are categorized as commercial activities;
(e) the permission for sub-division, conversion and installation of the Petrol Pump/CNG Station was granted by the defendant No,1 on 14-4-2007, while the defendant No,2 paid all the fees and also obtained the requisite approvals from the regulatory bodies i,e, OGRA, the Civil Defence Office, the Town Municipal Officer/Administration, Sui Southern Gas Co. Limited and the Ministry of Industries, Production and Special Initiatives, Department of Explosives. Also a relevant NOC had been granted by the SITE and KESC in respect of the electricity connection;
(f) the defendant No,2 has hugely invested in the installation of the Petrol Pump/CNG Station in terms of import of plant and machinery and constructions, while most of the finance has been generated through financial institutions carrying heavy interest/mark-up, hence the balance of convenience lie in carrying out the construction and running of the Petrol Pump/CNG Station.
5. The defendant No,4 i,e, the KBCA has taken a stance that it has no concern with the matter since the suit plot does not come within the jurisdiction of the KBCA. According to the KBCA it is the defendant No,1 (SITE) which is not only the lessor of the land but the same is also the approving authority of the building plans.
6. I have heard the rival contentions of the parties, perused the record and case law on the subject.
7. The admitted position is that it is the defendant No,1 which is the lessor of the suit plot. Even as per the stance taken by the plaintiff, the defendant No,5 i,e, CDGK is only a pro forma party. I have been able to lay my hands on Zeshan Builders v. KBCA 1992 MLD 2259 and Abdul Ghani v. GOP 1996 CLC 1914, wherein two different Division Benches of this Court have taken the view that where the area falls within the Cantonment limits, the operation of the Karachi Buildings and Town Planning Regulations, 1979 and the Sindh Buildings Control Ordinance, 1979 stood ousted; and it was the Cantonment Board which had the sole power to lease out the properties and undertake building- control and functions. Admittedly the defendant No,1 being the lessor of the suit plot, it has the sole authority to determine and regulate the land use. The defendant No,1 is a corporate entity, operating with the ambit of the Companies Ordinance, 1984. Section 196 of the Companies Ordinance, 1984, inter alia, provides that the affairs of a Company are to be governed by its Directors. This being so, natural consequence is that the defendant No,1 has to perform its functions through decisions taken by its Board of Directors, such decision being recorded in the minutes of the meetings of the said Board of Directors. The defendant No,1 being the lessor and having not adopted the 2002 Regulations as the standards for land use or building control, the latter shall not be applicable thereto. The plaintiff has not shown any violation of any standards approved by the defendant No, 1.
8 The contention of the plaintiff that before the impugned conversion and accord of permission to establish the Petrol Pump/CNG Station no public objections were invited or notices given in the press, is devoid of any merit, since now it is a well established principle of the planning and building control laws that if a complete road has been commercialized/converted, it is not necessary to invite public objections or give notice for conversion in respect of individual plots which are situated on the road which has been commercialized. In this regard the pertinent authority is the case of Excell Builders v. Aredeshir Cowasjee 1999 SCMR 2089; in this case the entire main Clifton road has been commercialized in view whereof the contention that distinct public, objections had to be invited in respect of every plot before commercialization, was repelled. In Ardeshir Cowasjee v. Clifton Cantonment Board 1998 MLD 1818 a Division Bench of this Court took cognizance of the fact that the Government Body of the erstwhile K.D.A. Vide Resolution No,220, Administrative Instructions No,57 and the Policy Decision dated 11-5-1980 had commercialized 15 different areas of Karachi which included the main Clifton Road. It was held that since the entire road had been commercialized, it was no longer necessary to issue public notices inviting objections in respect of individual plots. To similar effect is the judgment of a Division Bench of this Court in Ardeshir Cowasjee v. Clifton Cantonment Board C.P. No,D-294 of 1998 dated 22-1-2001 (unreported). The judgments of the High Court in Ardeshir Cowasjee v. Clifton Cantonment Board 1998 MLD 1818 and Ardeshir Cowasjee v. Clifton Cantonment Board (unreported, C.P. No,D-294 of 1998) were upheld by the apex Court in Abdul Razzaq Adamjee v. D.G. K.D.A. Civil Petitions Nos.505-Karachi, 506-K of 1998, 129-K of 2001 and Criminal Original No,36 of 1999, dated 8-2-2007 (unreported). Likewise the decisions of this Court reported as Irfan v. KBCA 2005 CLC 694, Captain M.S. Aslam v. KBCA 2005 CLC 759 and Shaikh Naeem Ahmed v. Province of Sindh 2006 CLC 1231 have reiterated and confirmed that if the entire road has been commercialized/converted by the lessor, it is no longer necessary to invite public objections in the press in respect of each and every individual plot. In all the above precedence cases the building control regulation had clearly provided for the inviting of public objections through the press, however, the Courts took the view that once the lessor converts the entire road, it is no longer necessary to invite public objections or give notice in respect of individual plots which are being converted.
9. Apart from the above, it will not be out of place to trace the subsequent development in law. In Navid Hussain v. Jahangir Siddiqui 2007 CLC 1568 it was held that once the entire road is commercialized, the balance of convenience does not lie in restraining commercial activities on a particular plot situated on the declared commercial road. A seven-member Bench of the apex Court in Haji Amin v. Navid Hussain 2008 SCMR 133 also took a similar view. In Arshad Abdullah v.
GOS 2006 YLR 3209 it was again held that once the entire road has been commercialized it was no longer necessary for an owner of a plot situated on that road to seek conversion in respect of his plot. This view finds re-ndorsement in Muhammad Hanif v. Sammena Sibtain 2007 YLR 3113.
10. The Board of Directors of the defendant No,1 in the minutes of meeting dated 17-1-2001 while approving the commercialization of East Avenue from Nazimabad to Gulbai has been pleased to observe that, inter alia, that establishment of Petrol Pumps/CNG Stations would constitute a commercial activity. Although I have taken the view that the 2002 Regulations may not be applicable to the defendant No,1 (i,e, SITE), for the sake of understanding one may conveniently refer to Regulation 25-12- of the 2002 Regulations which provide that a CNG Station can be installed on commercial or industrial plots. In other words, even the 2002 Regulations perceive a CNG Station to fall under both a commercial or industrial activity. I have also been able to lay my hands on Rahmat Petroleum Services v. Public at Large PLD 2006 Lah. 339 wherein it has been observed that once the entire road has been commercialized, it will not be necessary to seek a specific permission for establishment of a CNG Station, failing which the state of affairs would be against Article 18 of the Constitution pertaining to the right to carrying on business, trade or profession.
11. Great emphasis was placed by the plaintiff on the order of the learned Single Judge in Suit No,551 of 2006 dated 27-3-2007. The said order of the learned Single Judge has been 'set aside by a Division Bench of this Court in High Court Appeals Nos.113 and 121 of 2007, dated 23-10-2008. Lastly, the learned counsel for the plaintiff placed before me the order in Suits Nos.382 and 573 of 2007 dated 30-10-2008 wherein a learned Single Judge of this Court was pleased to issue an injunction against the establishment of a CNG Station on the Allama Iqbal Road on grounds that the CNG Station was allowed to be installed in violation of Bye-laws Nos.3 and 7 of the 2003 Bye-laws of Land Use issued by the CDGK. I have perused the order of the learned Single Judge. Bye-law No,3 provides for inviting public objections by publication of advertisements in two different newspapers, whereas Byelaw No,7 provides that no plot on a road declared to be commercial under the 2003 Bye-laws could be permitted to be used for the storage of dangerous or inflammable articles. According to the learned Single Judge the interim injunction was issued since the objections were not invited as per Bye-law No,3 and the proposed CNG Station shall store inflammable goods in violation of Bye-law No,9. Orders of Single Bench are not binding on another Single Bench (see Bashir Ahmed v. The State PLD 1960 Lah. 687, the latter having been cited with approval in Manue v. The State PLD 1964 Kar.
34. My reasons for not agreeing with the order in Suits Nos.382 and 5783 of 2007 dated 30-10-2008 are as follows:--
(i) Bye-law No,3, inter alia, pertain to the invitation of public objections. In view of the plethora of case law underscored in paras 8 and 9 above it is rather clear that where the entire road has been commercialized it is not necessary to invite public objections so as to convert an individual plot situated on that commercial road despite express provisions in the bye-laws or regulations pertaining to planning or building control mandating the issuance of public notice. Also it is not necessary for an individual to seek an independent permission for conversion in respect of a plot situated on the declared commercial road;
(ii) As regards Bye-law No,7, which prohibits the storage of dangerous/inflammable stuff on the plots situated on the roads which have been declared to be commercial by the 2003 Bye-laws, reference can be made to Regulation 25-6.12.1 of the 2002 Regulations which itemize "dangerous trades inflammable materials". In this category though petroleum exceeding a particular limit has been mentioned, CNG has not been F specified. Whatever is not expressly prohibited is permitted (see Fazal Elahi v. Bank of Punjab 2(04 CLD 162). CNG not having been specified in Regulation 25-6.
12.1 cannot be assumed to be prohibited;
(iii) Furthermore, if Bye-law No,7 of the 2003 Bye-laws are construed to include a Petrol Pump or CNG Station, the very H Bye-law may become unworkable since petrol pumps and CNG Stations are part of public necessity. Therefore, the course of declaring entire roads as commercial would rather become counter-productive and incongruous if the petrol pumps and CNG stations are completely prohibited from such declared commercial roads. Apart from this there would be an inherent discrimination militating against Article 25 of the Constitution viz., roads which have been declared to be commercial not under the 2003 Bye-laws i,e, the Shahra-e-Faisal, the main Clifton Road etc. Can have CNG Stations/Petrol pumps but roads H having been commercialized under the 2063 Bye-laws cannot have CNG Stations/Petrol Pumps thereon. There would be no rationality based upon any objective intelligible criteria to sustain such a discrimination (see I.A. Sherwani v.
GOP 1991 SCMR 1041). Laws and regulations are to be interpreted in consonance with the Constitution and in a manner which will make them workable not be exposed to a constitutional attack on their vires. I am rather clear that Bye-law No,7 of the 2003 Bye-laws is not meant to prohibit a CNG Station/Petrol Pump.
12. As regards the averment of easementary rights, suffice would it be to say that the same would require evidence and as such no interference can be drawn at this stage. In this regard reliance is placed on the observations of Shabbir Ahmed J, as he then was, in Seema v. Millennium Developers 2003 CLC 632.
13. With regard to the argument of safety and hazards, I am constrained to issue a direction to the regulatory agencies that they must periodically ensure that all standards are strictly conformed by the operators. In respect of the CNG Station the defendant No,3 must periodically inspect the site so as to ensure that the 'defendant No,2 complies with the safety requirements in particular the installation of the approved gas cylinders. As regards the use of CNG, it may be emphasized that the adverse incidents which are reported throughout the world are mainly because of the use of bad quality of gas cylinders. Today every home has a gas connection and most of the cars have gas cylinders if run on CNG. Such cars abound on the streets and are parked in residential homes.
The global oil crises also mandates the encouragement of alternative source of energy.
14. In light of the above I am of the clear view that the plaintiff has not made out a prima facie case to balance of convenience also lies in allowing the defendant No to complete, start and run the CNG Station/Petrol Pump. In view of the heavy investment made by the K defendant No,2 irreparable loss is likely to cause to the said defendant No,2 in case the injunction is allowed to operate. Accordingly C.M.A. No,3835 of 2008 is dismissed, while C.M.A. No,6219 of 2008 is allowed and the interim earlier is hereby vacated.
15. Before parting it is specified that the observations made above are tentative in nature and there shall be no order as to costs.
Injunction granted.