' MUHAMMAD FAISAL KAMAL ALAM, J.---The Petitioner is a lessee of Plot No,32/1, Sheet No,FT-3, Frere Town, Karachi, admeasuring 1421 Square Yards, having a twenty years Rentalise Lease in her favour granted by Respondent No,6-Karachi Metropolitan Corporation (KMC), has filed the instant Petition against, inter alia, Pakistan State Oil (Respondent No,3), which has setup and operating a Petrol Station/retail outlet at the said plot (Subject Property) , Army Welfare Trust (Respondent No,4), Sui Southern Gas Company Limited (SSGC) (Respondent No,5) and Ms. Fauzia Memon (Respondent No,7) being the present dealer of PSO, besides Federation of Pakistan and Oil and Gas Regulatory Authority (OGRA), impleading them as Respondents Nos.1 and 2, respectively. The instant petition contains the following prayer clauses:-- "a. Direct the Respondent No,5 to remove the Gas connections forthwith from the said plot as same was obtained illegally and without completing codal formalities and without NOC as required for the installation of the Gas Connection for running CNG Pump. b. Direct the Respondents Nos.1 to 3 to cancel forthwith the dealership of Respondent No,7 having been obtained illegally and unlawful without consent and NOC of the competent authority. c. Direct the Respondents Nos.1 and 2 to remove the present Managing Director of the Respondent No,3 who by misusing his power and in violation of rules and regulations of Respondents Nos. 1 and 2 have started other business on the plot except Petrol and Diesel Pump. d. Direct the Respondent No,3 to pay the compensation of the said plot per month as per market value. e. Appoint Nazir of this Hon'ble Court to inspect the suit property to check the illegal usage and possession on property in question by Respondent No,3 (PSO) and others and under what capacity and power they are using the same with power to Nazir to take over the income from die said property till disposal of this petition to save the interest of petitioner. f. Permanent injunction restraining the Respondents and their agents working on their behalf from using the Plot No, 32/1, FT-3, Frere Town, Karachi except PSO Petrol and Diesel Pump only by the Respondent No,3 (PSO).
Consequently direct the Respondents Nos.3 and 5 to remove the Gas Connections from the said plot as well as other small shops forthwith as same have been started in violation of all the agreements, laws and rules and regulations of Respondents Nos.1 and 2. g. Grant any other relief/s which this Hon'ble Court may deem fit and proper under the circumstances of the case.
2. A plain reading of the instant petition shows that it is primarily directed against the Respondent- PSO, which entered into an Agreement to Lease dated 26th November 1997 with Petitioner.
Basically, it is a long term tenancy agreement for ten years with an option to further renewals. It is averred that though the Respondent-PSO is generating a considerable business income from the subject property, but paying a meager amount of Rs,25,000/- (Rupees Twenty Five Thousand Only) towards monthly rentals to the Petitioner the latter has also complained that the Respondent-PSO has illegally got a Gas connection from the Respondent SSGCL for operating and running CNG facility from the subject property, though the same was leased out [let out] to the Respondent-PSO for the purposes of selling petrol and diesel only. The Petitioner has also called in question a Memorandum of Understanding (MOU) dated 02.04.2002 executed between the Respondent-PSO and Respondent No,4-Army Welfare Trust, where under, inter alia, both the Respondents would develop CNG Stations and allied facilities, like mini mart, car wash, etc. At various retail outlets/Stations of Respondent-PSO throughout Pakistan.
3. As per the Petitioner's learned counsel Syed Muhammad Intikhab Alam, since the total duration/term of the MOU is 33 years, whereas the duration/term of the afore mentioned Agreement to Lease [of 26th November 1997 executed between his client/Petitioner and Respondent-PSO] is only for ten years, that too has expired in the year 2007, therefore, Petitioner has reasons to believe that Respondent-PSO even after expiry of above Agreement to Lease continue to occupy the subject property on the basis of above MOU, which is detrimental to the interest of Petitioner and thus she should be compensated in monetary terms and Respondent- PSO should start paying the petitioner at least rupees two million per month and also compensate the latter for the last ten years.
4. The instant Petition has been vehemently resisted on behalf 'of Respondent-PSO by filing a detailed Counter-Affidavit. With regard to the apprehension of Petitioner regarding the aforesaid MOU between the Respondent-PSO and Respondent-Army Welfare Trust, learned counsel for Respondent-PSO Mr. Malik Altaf Javed has categorically stated that the said MOU is for other retail outlets/Petrol Stations also and not only for the subject property and his client has no intention to frustrate the terms of aforementioned Lease Agreement dated 26th November, 1997.
5. The main grievance of the learned counsel for the Petitioner is that the Respondent-PSO (allegedly) unauthorizedly and illegally doing the CNG business from they Subject Property and in this regard the learned counsel for the Petitioner has also drawn our attention to the Regulations 25-12.3 of Building and Town Planning Regulations, 2002 (Building Regulations). As per the learned counsel, the requirement as mentioned in Regulation of the said Building Regulation 25-12.3 has not been complied with, therefore, Respondent-SSGCL should disconnect the Gas supply to the subject property and the Respondent-PSO should stop selling CNG therefrom. It was also argued by the Petitioner's counsel that the Respondent No,2-OGRA has also acted in violation of relevant Rules and Byelaws, while granting the CNG permission/license to Respondent No,4-AWT.
6. Taking into account the arguments of Petitioner side, it is necessary to first examine the relevant Building Regulations; as purported violation of these Regulations is a serious issue. The above cited Regulation is reproduced herein under:- "25-12.3. All ownership and title documents including Allotment Order, Possession Order, Site Plan and Lease Deed etc. Duly attested are to be supplied. In addition a permission from Ministry of Petroleum and Natural Resources is also required."
7. The relevant Building Regulations for setting-up a CNG Station starts from Regulations 25-12 to 25-12.18. Various requirements are mentioned in detail and since these. Building Regulations have been framed and promulgated in the public interest, the same should be followed in letter and spirit.
To give a finding that whether or not the Respondent-PSO has violated the above mentioned Regulation 25-12.3, the other relevant Regulations have also been considered and most relevant is the Regulation 25-11.12, which provides that at an existing Petrol Pump a CNG facility is allowed if the area of plot is 1000 square yards and above. Admittedly, area of subject plot whereupon the Petrol Station is being run/operating is 1421 Square Yards, as evident from the aforementioned Rentalise Lease between the parties-petitioner and Respondent No,6-KMC, which is available at page 23 with the Memo of Petition.
' In addition to above the Petitioner side with its Statement of May 2014 has filed a Document dated March 4, 2003 issued by Master Plan Group of Offices of City District Government Karachi [CDGK] which in fact is a NOC [No objection certificate] in favour of Respondent PSO for installation of CNG facility at the Subject Property. Though this document has also been questioned by the Petitioner counsel, but, in view of the above discussion, the contention is un-tenable and in fact the above NOC shows compliance of Regulation 25-12.1.
8. The conclusion is that in the present case the Building Regulation 25-12.3 as relied upon by the learned counsel for Petitioner has not been violated and since the area of subject plot/property is more than 1000 square yards the present case is covered by Regulation 25-11.12, where under a CNG facility can be added on an existing Petrol Station/retail outlet, though subject to fulfillment of other requisite legal formalities, inter alia, as mentioned in the relevant Rules, viz. CNG (Production and Marketing) Rules, 1992 (relating to the business of CNG). In this regard, Mr. Dilawar Hussain, learned Standing Counsel appearing for Respondents Nos.1 and 2; Federal Government and OGRA has made submissions while relying on the para-wise comments/reply submitted by above Respondent OGRA, wherein it has been categorically mentioned that the said Regulator in terms of Oil and Gas Regulatory Authority Ordinance, 2002, has granted to Respondent No,4-Army Welfare Trust a Permission/License for the purposes of storing, filling and distribution of CNG (Compressed natural gas) in automotive vehicles, after completing the requisite codal formalities. To further substantiate his contention, Mr. Dilawar Hussain learned Standing Counsel, has filed a copy of the subsisting Permission/License dated 17.02.2004 alongwith the Reply of respondent-OGRA, wherein it has been specifically mentioned that the aforesaid License/Permission of CNG has been issued under Rule 6(i) of the CNG (Production and Marketing), Rules 1992 to Respondent Army Welfare Trust in respect of the subject property/retail outlet of Respondent-PSO. This License/ Permission has not been questioned by the Petitioner.
9. There is another inescapable aspect of the case if above mentioned Agreement to Lease between the Respondent-PSO and petitioner is perused, particularly its Clause-2, which is reproduced herein below for convenience:-- "The land shall be used by the Company for the installation of a filling/service station and for this purpose the Company shall be entitled to dig the land and to erect on the land underground petrol storage tanks and/or High Speed Diesel Oil Tanks or all manner of tanks, delivery equipment, pumps connected with the said tanks and petrol pumps, Air Compression, Day Stations, a Shelter for attendants and any other building erection or equipment whether of a temporary or permanent nature for the purpose of storing, selling or otherwise carrying on trade in petrol. Petroleum Products, or business of the like kind and/or any kind of trade or business which the Company at its desertion deems fit. " (underlining is to add emphasis) .
10. Even in the above clause, a provision has been made for Respondent-PSO to undertake other trade or business from the subject property. Nowadays invariably an Oil Marketing Company
(OMC) in Pakistan at most of their sites/Stations/retail outlets installed/provides CNG facilities to the end consumers. In this regard Oil Marketing Companies after entering into a long term lease agreements with landlords, subsequently, for carrying on different commercial ventures from petrol stations/retail outlets, enter into contractual relationship with third parties. Similarly all Oil Marketing Companies (OMCs) for most of their retail outlets/sites/Petrol Stations appoint dealer to run such retail outlets. In the present case, the Respondent-PSO being an Oil Marketing Company has appointed Respondent No,7 (Ms. Fauzia Memon) as its dealer in respect of subject site, which does not mean, as alleged or apprehended by the Petitioner, that the Respondent-PSO has parted with possession of the subject property to any third party. This concept of dealership also finds support from Storage, Distribution and Marketing of Petroleum Rules, 1971, and particularly its definition clause, wherein it has been clearly mentioned that a dealer in respect of a petrol pump site will be appointed by an Oil Marketing Company. Status of a "dealer" is merely that of a licensee, which term in international and local market has now been replaced with 'franchisee'.
11. With regard to the CNG facility/business at the subject property, it is clarified that the afore- mentioned MOU between Respondent-PSO and Respondent No,4-AWT can neither frustrate nor over-rule the terms and conditions of afore referred main Agreement to Lease between Petitioner and Respondent PSO. More so, said Agreement to Lease being a registered document is on a higher footing than the aforesaid MOU and the latter (MOU) cannot amend the terms of the former indenture-Agreement to Lease.
12. It is now an international market practice relating to petroleum business that a particular site/petrol station/retail outlet has variety of other commercial activities besides selling petroleum, oil and lube [POL] products. Unless there is a contract to the contrary, the permission of land owner/landlord is not obtained for such other commercial ventures, which an Oil Marketing Company undertakes from a retail outlet/petrol station. Generally such facilities is referred to as non-fuel retail activities, which include, operating a reputable food chain, general store [under different names and brands], installing an ATM Machine for convenience of customers, so on and so forth. However, for each such activity an Oil Marketing Company has to obtain permission from the concerned Government Functionaries. Consequently, Respondent-PSO is not bound to seek permission from the Petitioner for entering into such type of business ventures, unless there is an agreement to the contrary between them, viz. Petitioner and Respondent-PSO, but, at the same time the rights and interests of the petitioner being a land lady is fully secured, as the Respondent- PSO cannot enter into any such agreement with any third party, which can frustrate the terms and conditions of the above mentioned Agreement to Lease between the Petitioner and the Respondent-PSO, which the latter is also under an obligation to adhere to faithfully. In addition to the above, the afore mentioned OGRA Ordinance, 2002 provides a further protection in view of its Section 11 relating to Complaints filed by an interested person against a grantee or holder of license, which in the present case is Respondent No,4-AWT.
13. With regard to prayer clauses as reproduced herein above, the same for the purposes of present writ jurisdiction are untenable, inter alia, considering the above discussion. Similarly, for seeking the relief of compensation, the petitioner has to lead evidence, which exercise cannot be undertaken in the present proceeding.
14. Accordingly, in the above terms the instant Constitutional Petition is disposed of. However, it is clarified that decision in this petition will not debar the petitioner to seek redressal of her grievances, if any, before any other competent fora.