Arshad Siraj Memon, J.--These two appeals arise out of CM. A. No, 7673 of 2008 in Suit No, 1063 of- 2008 filed by the appellant and against C.M.A. No, 4295 of 2008 in Suit No, 694 of 2008 filed by the Respondents Nos, 1 and 2. Since common point is involved in both the appeals, which arise out of the applications made under Order XXXLX, Rules 1 & 2 C.P.C, we intend to dispose of both the appeals by this common order.
2. Brief facts of the case are that in Suit No, 694 of 2008 filed by the Respondents Nos, 1 & 2, the respondents claim to have acquired piece of land ad-measuring six acres in Deh Dih on 30th March, 2006 which was allotted for the specific purpose of establishment of an educational institution of International standard. The respondents started work of construction and raised substantial constriction by spending huge amount. It has been averred in the plaint that the respondents approached Executive Officer, Korangi Creak pointing out that the appellant is discharging waste water in the open area creating problems and hindrances in the construction of its project. It has been further averred that the appellant undertook to redirect its waste water and for that purpose request was made to relevant authorities. It has been averred that thereafter on 23-4-2008, the respondents received a letter from the appellant stating therein that the appellant is key-point 1-A installation and therefore, respondents were informed that construction cannot be done within 200 yards of the appellant's perimeter in view of the provisions of Section 10 of the Civil Defence (Special Power) Rules, 1951, therefore, the respondents were advised by the appellant to stop the construction, which gave cause of action to the respondents to file Suit No, 694 of 2008 before this Court, a suit for injunction and damages for restraining the appellant from interfering or disturbing the respondents construction work in the educational institution project.
3. Likewise the appellant also filed the Suit Bearing No, 1063 of 2008 against the respondents claiming. that due to' extreme sensitive nature of its business, the appellant has been classified as key-point 1-A installation. It was averred in the plaint that key-point 1-A installations are those installations, which are of vital importance to the country in its ability to fight war and if such structure installation or establishment are harmed for any reason then it would cause serious damage to war time efforts. It is also averred that the Federal Government in exercise of powers of Section 10 ibid has directed that no structure shall be constructed within a distance of 200 yards from the key point 1-A installation and despite this important fact the respondents raised 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 present and working in the respondent's installation. In view of the such averments, the appellant also preferred to file Suit No, 1063 of 2008 for declaration, mandatory and prohibitory injunction and damages. An application for injunction filed by the appellant and respondents were adjudicated by learned Single Judge, who after perusal of the record appreciating the arguments and material placed before him, was pleased to grant injunction in favour of the respondents and against the appellant. Hence these appeals.
4. Mr. Khalid Anwar, learned counsel for the appellant has assailed the impugned order primarily reiterating points taken in the plaint as well as argued that appellant is a key-point 1-A installation, which has been declared to be so and referred various documents (pages 161 to 175) of the file to show that the appellant has been declared as key point 1-A Installation Bearing No, 1115-1 A. He has further argued that in contravention of Section 10 ibid the respondents were allotted the said plot and that the respondents applied to Government of Sindh for allotment on allegedly false statement that they are establishing School of International Repute and have affiliation with "Rugby School". He placed reliance on E-mail, addressed to such institution situated in U.K and submitted that the Organization of the Rugby School in U.K have denied any connection with the respondents thus, he submitted that the allotment was acquired on false statement. According to the learned counsel for the appellant, the respondents have no connection with Rugby School in U.K. He has further submitted that in view of Section 10 ibid proper permission from Civil Defence Authority was not obtained. He therefore, submitted that since the plot was not acquired from the approval of the concerned authorities and referred to us various documents in respect of inspection of site by relevant agencies. He submitted that approximately 30% of the share vested with the Federal Government and the respondent's project was vulnerable as well as the appellant's installation. He referred to the documents to (Pages 129 to 133 & 155 to 175) demonstrate that no construction can be made from key-point 1-A to the extent of 200 yards of the perimeter of the said installation. He submitted that key point installation is a structure installation or establishment, which is of vital importance of country in its' readiness and ability to fight a war and if such structure, installation or establishment were to get damaged or destroyed or shutdown for any reason then it would cause sever damage to war time efforts. He further pointed out that the appellant has put several signs around its premises informing the general public about the directive contained in Section 10 of the Civil Defence (Special Power) Rules 1951 read with Civil Defence Ordinance, 1951. He has further submitted that efforts have been made by the appellant to reduce the effect of environment and for such purposes the appellants' have made the efforts with huge investments in foreign exchange to upgrade the process of reducing the sulphur content. He has further submitted that the upgradation assignment would be seriously prejudiced and affected as according to the International Advisors, Consultants and/or participants in the upgradation project have recommended that no School or Hospital should be constructed closer to the Refinery which may be harmful if any incidents of explosion occur which would expose children and staff of the respondents institution to unnecessary risk of injury or fatality. He, therefore, submitted that in view of the fact that the appellant is a key point installation no construction can be done near 200 yards of such installation.
5. On the other hand, Mr. Zahid F. Ebrahim, learned counsel for the respondents submitted that the respondents are establishing School of international Repute, which is being established by a non- profits organization, which will grant free education to 20% of the children. He submitted that the disputed plot was acquired after fulfilling all the legal requirements which is evident from the documents placed on record to show that Government of Sindh and relevant .departments were conscious of the installation of the appellant and in the vicinity, plots have been allotted to other people/organizations/ societies to establish residential as well as commercial projects. He submitted that the suit filed by the appellant was based on mala fide, which was filed only as a counter blast when the respondents objected to the appellant and complaint was filed before the Cantonment Authorities in respect of discharge of waste water. On the basis of the above arguments, he submitted that the appellant had knowledge about construction at the plot, which started in 2006 and it was only when a complaint was lodged before the Cantonment Authorities, the appellant raised objections for the first time in 2008, on the ground that according to Section 10 of the Civil Defence (Special Power) Rules, 1951 that they are key point installations. He further submitted that the averments of the plaint of the appellant would show it prima-facie speaks about safety of the children and related staff of the education institution, whereas no main concern has been made for their own security. He further submitted that the appellant has incorrectly argued about the security issue of prime importance to the country with reference to their installation when the shareholder of the company include foreigners as such he refuted that had it been a security concern of prime importance for country the appellant would not have inducted or allowed foreigner companies like Shell and Chevron to be equity holder in such an important and sensitive installation. In respect of the documents referred by Mr. Khalid Anwar, Advocate, he submitted that the appellant has been able to get such letters in their favour due to influence of one of their employees. He has also referred to the documents placed on record to show that the arguments that Civil Defence Authorities at Federal level were not involved, is belied by documents as representative of the Civil Defence Authorities Ministry of Interior were involved in the inspection conducted by Federal Inspection Team, which also comprised of the management of the appellant and respondents.
6. We have heard both the learned counsel, have perused the Impugned Order, have also examined the documents produced on record and have also gone through the provisions of Civil Defence (Special Power) Rules, 1951. The main emphasis of the learned counsel of the appellant is on Rule 10 of the Civil Defence (Special Power) Rules, 1951. Before we dilate upon the arguments placed before us by the learned counsel of the parties, we may observe with dismay that the parties have not placed before us the up-dated statutory provisions and have simply placed before us (in the memo, of appeal) the statute i,e, the Civil Defecne (Special Power) Rules, 1951 as published in PLD 1951 Central Statue page 387. While examining the case from various perspectives, we came across the subsequent amendments made in the said rules. The assistance of Director of High Court Library was, therefore, acquired who placed before us the text of the said rules duly amended/modified up to 29th July, 1981, such updated statute was not placed before us by the parties. We may at this stage with great humility, observe that it is the duty of the counsel appearing for the parties to place correct statute duly amended for proper assistance of the Court.
7. Be that as it may, to appreciate the arguments of the learned counsel, provisions referred to above, is reproduced for convenience and ready reference:-- "10. Security of buildings.-(1) The Central Government or the Provincial Government may by order, as respects any area specified in order, provide for securing that, subject to any exemption for which provision may be made in the order, no building, or no building of such class as may be specified in the order, shall be erected, expended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay out, materials and construction as that Government may impose, being requirements which it is in the opinion of that Government necessary to impose for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it.
(2) If any person contravenes any of the provisions of an order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both."
8. Perusal of the Civil Defence (Special Powers) Rules, 1951, duly amended shows that it provides that Civil Defence (Special Power) Rules, 1951 were framed under the Civil Defence Ordinance, 1951 to secure the Civil Defence of the Federation. The Civil Defence Ordinance, 1951 was repealed and the Civil Defence Act, 1952 was promulgated, through which the Civil Defence (Special power)
Rules, 1951, stood continued by virtue of sub-section (2) of Section 10 of the said Act.
The salient features of the Civil Defence (Special Power) Rules, 1951, inter alia ara-- Rule 3. Constitution of a body for an area to be called Air Raid Precautions Service of Civil Defence Services by the Central Government or the Provincial Government and appointments of a person called the Controller, to command such body in such area.
Rules 4, 5 and 6. Provides for the appointment of members and officers of Civil Defence Service, their functions and dismissal.
Rule 7 Provides that Central Government or Provincial Government may by order in respect of any articles or substances from the explosive or inflammable nature of which special precautions are in the opinion of the Government necessary or expedient for public securing the public safety, issue direction prohibiting the keeping such articles or substances in or such premises as may be specified in the order prescribing the quantity to be kept in or on any premises and for requiring the owner or occupier of any premises in which such articles or substances are kept to take such measures as may be specified in the order for protection of persons or property therein or thereon in the vicinity thereof for any incidental or supplementary matters for that Government thinks expedient for the purpose of the order to provide including in particular the entering and inspecting the premises to which the order relates with a view to securing compliance with such order.
Rule 8.It provides for watching of premises, to detect fire and for requiring the occupiers of any premises to which the order applied to make and carry out such arrangements as may be specified in the order with a view to securing that fires occurring at the premises as a result of hostile attack.
Rule 9.It provides for measures for dealing with outbreak of fire. Rule 10. Provides for security of building.
Rule 11. Provides for protection of major ports and their environs against fire etc. Rule 12. Provides for the protection of factories, Key Points and mines. Defining the expressions "mine", "factory" and "Key points" for the purposes of this Rule.
Rule 13. Provides for removal of Companies records to keep them in such a place of safety.
Rule 14. Provides powers of requiring local authorities to take precautionary measures.
Rule 15. Provides for maintenance of water supply Rule 16. Provides for Construction of Shelters and their management.
Rule 17. Power to exempt Air Raid Installations and places from municipal taxation.
Rule 18. Provides for safety measures to be taken by the owner or occupier of the premises.
Rule 19-20. Provides for control of light and sound and of motor vehicle.
Rule 21. Relates to power of requisitioning of certain properties.
Rule 22. Relates to power to obtain any warehouse or cold storages depot for the purpose of storage.
Rule 23. Empowering the Federal and Provincial Governments to make arrangements of Camouflage required area or premises.
9. We have also considered the documents placed on record to appreciate the arguments of learned counsel of both the sides. Before calling upon to examine Section 10 ibid, it would be necessary to examine letter dated 30-4-1992 (Appeal file Pages 129-135) on which such emphasis has been laid down by the learned counsel for the appellant, which is reproduced below for ready reference and facility :-- CONFIDENTIAL/IMMEDIATE XXDNo,1/2/92-KP GOVERNMENT OF PAKISTAN Ministry of Interior Islamabad, the 30th April, 1992 Tel. 821762 To Chairman, KPID, Committee, ISI Dte Islamabad The Home Secretaries.
Government of the Punjab/Sindh/N.-W.F.P./Baluchistan. Lahore/Karachi/Peshawar/Quetta.
Provincial Survey Inspection Teams.
Subject: No Construction Work Within 200/100 yards of key points of category IA & IB Sir, In a recent meeting of the Defence Committee of the Cabinet it was pointed out that some very essential key points of categories IA & IB have become insecure because of unrestricted construction of buildings in their vicinity. This has seriously jeopardized their security.
2. Section 10 of the Civil Defence (Special Powers) Rules, 1951, read as follows:- "The Federal Government or the Provincial Government may by order, as respects any area specified in the order, provide for securing that, subject to any exemptions for which provision may be made in the order, no building or such class as may be specified in the order, shall be erected, extended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay-out, materials and construction as that Government may impose, being requirements which it is in the opinion of the Government necessary to impose, for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it."
This is an enabling section which gives wide powers to Government for controlling the construction of building both as regards the lay-out as well as materials. This section can, and should have been used for controlling such construction within the vicinity of key points wherever it effected their security. Hence now in exercise of the powers conferred by Rule 10, the Federal Government has decided that no structure shall be permitted to be constructed within the following distances of the key points unless the lay-out and materials involved are cleared by the key point Intelligence Division:-- Category of Key PointDistance from Key Point 1-A200 Yards 2-A100 Yards
3. Provincial Governments etc. are requested to issue necessary direction to all concerned departments under intimation to this Ministry and to ensure that they are strictly implemented especially in the case of key points involving inflammable or explosive material and noxious or poisonous gases."
Yours Obedient Servant (Sd)
(Naseer Ahmad Khan)
(Deputy Secretary)
Copy for similar action to:--
1. All Ministries/Divisions with the request that attached/ subordinate Offices/Autonomous Bodies/Corporations/etc. concerned may be informed accordingly.
2. The Chief Secretary AJ & K, Muzaffarabad.
3. The Administrator, Northern Areas, Gilgit.
4. The Deputy Commissioner, ICT, Islamabad.
(Sd.)
(Naseer Ahmad Khan) Deputy Secretary
10. We have examined the scope of the Civil Defence (Special Powers) Rules, 1951, more particularly its Rule 10 with conjunction with letter dated 30-4-1992 and only conclusion which can be arrived at is that said rule is an enabling Rule where prohibition of construction (within the area specified in the order to be made by Rule 10) and (within the distance of Key Points 1A-200 yards and 2B-100 yards respectively) is not absolute, construction may be allowed if the Layout and material involved are cleared by the Government who passed the Order under Rule 10 ibid or by key point Intelligence Division.
11.Viewed in this perspective, the documents placed on record by the respondents by statement dated 3-3-2009 i,e, No Obiection Certificate issued by Additional Director Civil Defence Sindh, is within the parameters of Rule 10 ibid read with letter dated 30-4-1992 (Annexure E Pages 129-133) and prima facie does not violate the Rule 10 ibid. In fact it complies with terms of said Rule. It would be not out of place to observe at this stage that the Federal Government have delegated its powers to` the Provinces under Section 9 of the. Civil Defence (Special Power) Ordinance, 1951, through Notification No, 5-1- 50/CDI. After such delegation, in our humble view, it cannot be argued that the Civil Defence Directorate (Sindh) had no authority to examine or constitute any committee or team for investigation of the matters arising out of Civil Defence (Special Power) Rules, 1951. The appellants have neither brought to our notice anything nor produced anything on record to show that the competent authorities and the respondents have violated Rule 10 ibid. As observed earlier, the import of Rule 10 is unambiguous and plain reading of it shows that prohibition is not absolute.
12. In our considered opinion, the learned Single Judge has very correctly appreciated the facts that the main concern of the appellant as averred in the plaint and argued was in respect of security of the personnel of the respondents. As such the reference to incidents of fire or the explosion in different countries and the process of up-gradation and expansion of the appellant installation therefore becomes irrelevant and of no consequence. We may also observe that the appellant also failed to satisfy the learned Single Judge in respect of the prohibited perimeter of the key point installations. Therefore, in our humble view, the learned Single Judge correctly appreciated the facts and granted injunction in favour of the respondents.
13. The learned Single Judge in the last paragraph of his order has very rightly observed that it will be open for the Defendant No, 3 (Respondent No, 3) viz. Federation of Pakistan to impose any condition for the purposes of rendering the building of the appellants' more secured and protected from the persons using the same in accordance with Rule 10 of the Civil Defence (Special Power)
Rules, 1951. We may further add that in view of Rule 12 of the Civil Defence (Special Power) Rules, 1951, the Respondents No, 3 if advised may take necessary measures to secure the appellants' premises in the best interest of key point installations and its vicinity.
14. In view of the above observations, the listed appeals have no merits and the order passed by the learned Single Judge requires no interference. Accordingly, the both the appeals are dismissed