1. ' MUNIB AHMAD KHAN, J.---Both these above appeals have been filed by the Appellants above- named against the order, dated 27-3-2007 by which injunction application (C.M.A. No,3245 of 2006) was granted as prayed. Since both the appellants were defendants in the suit in different capacities, they have filed separate appeals against the said impugned order.
2. ' The brief dispute as recorded by the learned single Judge in his own words as under:-- "Brief facts to decide C.M.A. No,3245/06, an application under Order XXXIX Rules 1 and 2, C.P.C., are that plaintiff No,1, who is resident of bungalow constructed on plot No,D-7, Block `N', North Nazimabad, Karachi and plaintiffs No,2 is owner of another premises on plot No,D-25, Block 'N', North Nazimabad, Karachi, filed suit seeking declaration that the conversion of plot No,D-8, Block 'N', North Nazimabad, Karachi (`plot in question'), from residential to commercial and then from commercial to petrol pump-cum-CNG filling station by the defendant No,2 is arbitrary, illegal and without lawful authority and further that the NOC granted by defendant No,1 in favour of defendant No,5 for the installation of petrol pumpcum-CNG filling station on the plot in question is also illegal and without lawful authority."
3. ' The respondents have challenged the permission for conversion of plot to a CNG station by the CDGK to the appellants while contentions of the appellants were that the same has been granted in accordance with bye-laws of CDGK as approved by Resolution No,383, dated 6-1-2004 while operation of CNG station has been permitted strictly under KB & TPR, 2002. The contention in the suit was on both the grounds i,e, the conversion of the residential plot to a commercial plot and thereafter from commercial to CNG on the ground that both were contrary to CDGK bye-laws and KBCA Regulations but later on it was confined to the conversion to CNG station only and during the course of arguments Mr. S. Afsar Ali Abidi, learned counsel for respondents states that he has only objection to the conversion of commercial plot to CNG station and not to the conversion from residential to commercial.
4. ' Mr. Abid S. Zuberi, learned counsel in HCA No, 113 of 2007 and Mr. Siddiq Mirza, 'learned counsel in H.C.A. No,121 of 2007 appearing for the appellants are of the view that the plot for CNG purpose has been converted in accordance with the bye-laws and rules of the CDGK. They submit that these bye-laws have been approved by Resolution No,383, dated 6-1-2004 but the learned single Judge has approved the said Resolution to the extent of conversion from residential to commercial but has not extended its operation for conversion of the plot from commercial to CNG station. They further submit that in accordance with CDGK bye-laws, objections from the general public were invited through newspapers by various notices and following that, huge amount was paid on that account to the CDGK. They have further invited our attention to the bye-laws of CDGK in respect of the change of land use and stated that procedure for conversion has been given in bye-laws 3 and clause 3(11) deals with establishment of CNG station on the industrial, residential and commercial plots. Learned counsel argued that the bye-laws even permit use of residential plot for CNG station after adopting proper procedure laid down by CDGK. They further stated that the appellants have complied with all conditions of the KB & TPR 2002 in terms of clause 25-11.1 and 25- 12.12. They submit that although the learned single Judge has approved the Resolution No,383 of CDGK but only to the extent of commercial use but there is no justification as to why it has not been extended to CNG pumps while the conversion of CNG station has also been granted following the procedure laid down in the that Resolution. They submit that learned single Judge has simply relied upon the first permission granted for the purpose of conversion of residential plot to commercial use and has stopped on that by declaring that the permission was only to the extent of commercial use which includes flats, offices and shops and not CNG station.
5. ' Learned counsel further pointed out that there are petrol pumps on both sides of the road on which the permission for petrol pumps has been granted and normally CNG stations are located in the main thoroughfare and even adjacent to the high-rise building, which shows that there is no danger to give permission for CNG station nor it will cause any damage to the residents of vicinity.
6. They submit that even clause 19-2.2.6 of KB and TPR 2002 include the business of petrol pump and CNG station within its definition and in such a situation, when proper course has been adopted towards getting permission for CNG station then there was no material available with the learned single Judge to object.
7. ' There is no counter affidavit available on record from the respondents but Mr. Afsar Ali Abidi, learned counsel, has argued that the order of learned single Judge is proper. He further stated that one of the appellants i,e, Parco was a stranger to the proceedings before the CDGK and cannot take the benefit and that the respondents submitted a detailed factual position through his counter affidavit before the learned single Judge but no rejoinder was filed to that and that the Resolution No,383 and the alleged bye-laws are being printed by an individual (Mr. Manzoor Ahmed, Advocate) and cannot be relied upon as a legal document. He stated that although an application for intervenor was allowed, subsequent to the impugned order but it has not been made a party.
8. ' Mr. Shaikh Riaz Ahmed, learned counsel for CDGK, has supported the appellants by stating that permission was granted in accordance with bye-laws of the change of land use.
9. ' The perusal of impugned order shows that two advocates were called as amicus curiae by the learned Judge, who have supported the contention of appellants, which has been recorded by the learned single Judge and same is reproduced as follows:-- "Mr. Rasheed A. Razvi, the learned amicus curiae, submitted his written submission. It was stated in the written submission that clause No,2-34 of Karachi Building Town Planning Regulations, 2002 defines commercial use means commercial (trade) uses as Shop, shopping centers, markets and other use as defined in sub-clause 9-2.2.6. From clause (g) of Clause No,19-2.2.6, it appears that the petrol pump-cum-CNG filling station has been included in the definition of commercial trade use and Clause No,25-12.2 provided that a CNG filling station can be installed on a commercial or industrial plot after payment of prescribed charges. As per written submissions of the learned amicus curiae a CNG Station could be established on a commercial plot subject to fulfillment of requirements of Clause 25-12. According to the learned amicus curiae since all the concerned authorities have granted NOC and the plot in question is of the required dimensions/area, permission for conversion was rightly granted."
10. ' Learned single Judge has discussed the KB and TPR, 2002 of which the relevant provisions are reproduced as under:-- "19.2.2.6: Commercial (trade) uses.---normally includes only the land used of the activity in question, though this may be increased by additional open or green space, if the operation of the facility concerned requires it. Commercial (trade) uses includes;
(a) whole sale trade.--- subzi mandi, fruit mandi, whole sale markets;
(b) retail shopping.-;-including shops, shopping centers, departmenttal stores, bazaars, markets and hawkers areas Juma Bazar etc.;
(c) personal service.---including barbers, hair-dressers, baths, tailoring, shoe-making, laundries and dry cleaners;
(d) catering.---including restaurants, banquet halls, marriage hall/ lawn, refreshment stall, buffets;
(e) lodging.--- including hotel, motels and clubs providing lodging;
(f) business offices including banks;
(g) petrol stations, CNG station;
(h) Cyber Cafe etc."
11. 25-11.11.---NOC for Petrol Station shall be issued on payment of NOC charges @ Rs,50,000 (LS).
12. 25-11.12.---On an existing Petrol Pump, CNG facilities shall be allowed only if the area is more than 1000 Sq. Yds. (840 sq.Ni).
13. 25-12.1.---CNG case should be forwarded by District Coordinating Officer, CDGK as well as the concerned authorities to Master Plan and Environmental Control Department for examination and for further recommendation."
14. ' After discussing the above Regulations as well as others, the learned single Judge has recorded the factual position of conversion of plot from residential to commercial in the following words:- "The Defendant No,6 applied for conversion of the plot from residential to commercial and as required public notice was published in newspaper for change of use in respect of the plot in question. It is worth to note that even in the said notice, it is specifically mentioned that the plot will be converted from residential to commercial for establishment of shops, flats, and offices. The Defendant No,1 granted no objection for conversion of land use on 26-10-2004 from residential to commercial and by this no objection certificate, conversion was allowed for use of plot in question for offices, shops, and flats only. Even in the NOC issued by the Additional District Officer he specifically mentioned that conversion has been allowed under the Authority of City Council Resolution No,383, dated 6-1-2004. After getting the conversion of plot from residential to commercial in terms of City Council Resolution No,382 the defendant No,6 applied for conversion of plot from commercial use to Petrol Pump-Cum-CNG Station. The District Co-ordinator Officer issued no objection Certificate on 23-12-2004 in favour of defendant No,5 to approach Chief Inspector of Explosive for explosive license in Form-K for the installation of petrol pumcum-CNG station on the plot in question."
15. ' And held that keeping in view the definition given in Clauses 19-2.2.6(a) and 2(h) of KB and TPR, 2002, the change in use from residential to commercial cannot be extended to the CNG station and this conversion will remain confined to the shops, flats and offices and not for other commercial use including the CNG station.
16. ' From the perusal of impugned order as well as contentions of the parties, it appear that the bye- laws of CDGK approved by Resolution No,383/04 have not strongly been disputed. The ground of Mr. Afsar Ali Abidi, learned counsel that said bye-laws have been edited by one Advocate has no force as the said Advocate, Mr. Manzoor Ahmed, is a Principal Law Officer of CDGK. Moreover, another booklet issued by CDGK has also been submitted by Mr. Abid S. Zuberi, learned counsel, during the course of arguments to show that the bye-laws are being issued and approved by CDGK and not by an individual. Bye-law 3-11 of CDGK shows that CNG Station even cannot only be established on the commercial or industrial plots but also on the residential plots and that is to be done in accordance with the law applicable. It appears that plot in dispute was firstly taken for the purpose of commercialization and after fulfillment of the condition in a follow-up of the above bye- laws was converted from residential to commercial and in this respect objections were invited, but none, while huge amount was paid towards the charges and in the second phase, the said plot was again taken up for its conversion from commercial use to CNG petrol pump, then again, keeping in view the bye-laws etc. Public notice was issued in the newspaper, followed by required payment, and after completing all formalities including no objection from the concerned Government Departments, plot conversion was allowed from commercial to CNG/Petrol Station.
17. ' We have scrutinized the relevant law including the bye-laws and KB and TPR, 2002 and have assessed that the bye-laws of the CDGK have been approved by Resolution No,383 of the CDGK and those bye-laws have been relied upon by the learned Single Judge while the respondent itself has assented to its application as it has not disputed the conversion of residential plot to a commercial plot under the said bye-laws which shows that these bye-laws have legal force and we have to see as to whether permission for conversion from commercial to CNG station is available and granted properly or not. By virtue of bye-laws 3-11, CNG Station can be approved on industrial, residential and commercial plots after completion of codal formalities. After the approval for conversion of the plot, interested party has to follow the Karachi Building and Town Planning Regulations, 2002 for establishment and construction of petrol station in this respect.
18. Perusal of Regulation 2-34 of the KB and TPR, 2002 shows that it has defined commercial use as commercial (trade) uses such as shops, shopping centers, market and other uses as defined in sub-clause 19-2.2.6, while the latter Regulation in its clause (g) (ibid) petrol/CNG Station within the meaning of commercial (trade) use. The Regulation 19-2.2.6 has extended the meaning of commercial use to the Petrol/CNG Station, therefore, it cannot be said that the commercial activity is only confined to offices, shops and flats etc. Whereas more relevant provisions dealing with the installation of CNG station is Regulation 25-12 wherein proper course and conditions have been provided which has to be followed by a person intending to install the CNG station which include NOCs from the relevant Departments etc. And provisions of certain facilities as well as required specification in respect of the area of the plot and its opening on the road as well as its location.
19. Keeping in view the factual position and location of the plot in dispute, we are of the opinion that the said plot fulfills the requirement laid down under Regulation 25-12.
20. ' We have also observed from the record that before grant of permission by KBCA, NOCs from Ministry of Industries, Production and Ministry of Petroleum and Natural Resources are required.
21. These notifications are clear even to the extent that for the purpose of commissioning CNG station on the existing petrol pumps, no additional NOC is required except the NOC from the Department of Explosives. The notification, dated 22nd June, 2006 further provides that NOC is to be obtained from Gas Utility Company, Department of Explosives, Civil Defence, Tehsil Municipal Officer, and Third party certification from HDIP etc. These requirements have also been spelled out in the Regulation 25-12 to some extent. In these circumstances, when a person passing through the scrutiny of the concerned Department and paying required conversion fee then he is entitled to commission CNG Station as the clauses mentioned above are permissive while there is no restriction. The relevant portion of the Office Memorandum, dated 22-6-2006 issued by the Ministry of Petroleum and Natural Resources laid down the following requirements:--- "(i) For installation of CNG Station at existing petrol pumps, there is no need of any additional NOC except from the Department of Explosive and Third party certification from HDIP including a reputable Private Sector Company of high standards.
(ii) For installation of a stand-alone CNG station at raw sites/ new locations, NOCs only from the following authorities be obtained: Gas Utility Company, Departmental of Explosives, Civil Defence, Tehsil Municipal Officer, and Third party certification from HDIP including a reputable Private Sector Company of high standards.
(iii) All authorities concerned must decide for issuance of NOC(s) or otherwise within one month of the receipt of request..."
22. ' In such a situation, when there are bye-laws granting permission for establishment of CNG after following the required bye-laws then it is to be seen as to whether there is any restriction or not.
23. The regulations of KB and TPR, 2002 as reproduced above and have also been highlighted by amicus curiae in their submissions shows that there is inclusion of a CNG filling station within the meaning of commercial trade while the learned counsel for respondents has not been in a position to show as to what restrictions are imposed in law. The contention of learned counsel for respondents that bye-laws of CDGK as well as Resolution No,383 cannot be extended to the grant of CNG station but to commercial plot only has no force in. The absence of any provision in the shape of restrictions, hence we do not agree with the findings of learned single Judge that the grant of permission for CNG station on the plot in question is contrary to the said Resolution.
24. ' The above conditions show that the Government/Authority is conscious enough to fulfil the pre- conditions before CNG station is permitted. We are also of the view that now-a days use of CNG is termed a green environment and cause of reduction of pollution while adjacent to multi-storeyed buildings there are certain petrol/CNG stations while no incident of bursting cylinder of the Petrol/CNG station has been reported except one or two due to leakage of gas by mishandling and keeping in view the number of CNG station and the use same incidents are negligible and common in all types of trade. The use of CNG is so common that every motorist, now-a-days, is sitting on a cylinder while A driving his car, therefore, use of CNG or its cylinder cannot be taken hazardous to the population in the absence of any. Evidence. Keeping in view the pressure on the country's economy, use of CNG is to be increased for which the Government has already laid down certain terms and conditions. Hence, we do not find that permission to operate a CNG Station on a plot converted properly and legally can be a cause of inconvenience or injury to a person in the vicinity.
25. ' Accordingly, we allow both these appeals, the impugned order, dated 27-3-2007 is set aside and also dismiss the C.M.A. No,3245 of 2006.
26. ' Both the above Appeals are disposed of in above terms.