' ZAFAR AHMED RAJPUT, 1.--By this order, I will dispose of C.M.As Nos.12591 /2013 and 12592 /2013 filed by the plaintiffs under Order XXXIX, Rules 1 and 2, read with Section 151, C.P.C. And under. Order XL, Rule 1, read with Section 151, C.P.C., respectively.
2. In C.M.A. No,12591/2011 the plaintiffs have prayed for interim injunctive order restraining the defendants, specially defendants Nos.1 to 5, their employees, servants, agents, attorneys, administrators, assigns, person or persons for, under or on behalf of the defendants from raising construction of petrol pump on green belt plot situated on Beach View-1 and from dealing with any person/parties in respect of any construction on the subject plot until final disposal of the suit.
3. In C.M.A. No,12592/2013 the plaintiffs have prayed for appointment of the Nazir of this Court as Receiver, to take the possession of the subject plot.
4. Briefly stated, the facts of the case are that the plaintiffs have filed the instant suit for declaration, injunction, direction and cancellation claiming therein that in front of their bungalows there is an area, admeasuring 2400 square yards (the "subject plot") at 40 feet wide road which, according to the master plan of the Defence Housing Authority ("DHA") is exclusively meant for amenity/park/green belt and it was neither a commercial plot nor ever designated as a petrol pump site, but all of sudden on 02.11.2013 with the connivance of the officers of defendants Nos.1 to 4, the defendant No,5 started raising construction on the subject plot without any approval from defendants Nos.6 to 8 its well as without following the Building Control and Town Planning Regulations, 2011 and Cantonments Act, 1924. It is further alleged that beneath the plot there is an oil pipeline laid by the Pak-Arab Refinery Limited whereupon the petrol pump is being constructed.
It is case of the plaintiffs that the officials of the defendants Nos.1 to 4 illegally converted the amenity plot/green belt into a petrol pump site, which if materialized, will create a permanent source of nuisance to the plaintiffs not only to their quality of life but also endanger their children and in case of any mishap there might be a massive inferno causing serious damage to the plaintiffs, their family members and to their respective bungalows. It is further case of the plaintiffs that due to illegal construction of the petrol pump, their easement rights have seriously been compromised. It is also case of the plaintiffs that they shall suffer irreparable loss and injury if the construction being undertaken by defendant No,5 is allowed to go on and is not demolished.
5. Defendant No,1 (DHA) has filed counter affidavit to C.M.A. No,12591/ 2013, wherein it is alleged that the subject plot i.e, Plot No,18-A, 25th "A" Street, Phase V, DHA, was a vacant open DHA plot which was left vacant for subsequent planning and utilization under the master plan. The subject plot was never a green belt area and under the Presidential Order No,7 of 1980 read with DHA Building Control and Town Planning Regulations 2011 (the "DHA Regulations 2011") the defendant No,1 has the authority to put the subject plot to a suitable use. It is also alleged that the plaintiffs had never approached the DHA for seeking information regarding the status of the subject plot. It is further alleged that the subject plot is located on main Beach View road with three open sides and the immediate neighbor has not made any complaint or approached this Court for any such claims. It is stated that the vicinity of the subject plot is already thriving with commercial activities including restaurants, shopping malls, marriage halls, offices, high rise residential cum commercial buildings etc., but the plaintiffs have maliciously failed to disclose this fact before this Court. It is further stated that the defendant No,1 has adopted a transparent procedure for licensing the subject plot in favour of defendant No,5. The defendant No,5 being the highest bidder was awarded license of the subject plot for petrol pump use only for a period of 30 years. It is averred that originally Master Planning of the Phase V of DHA, Karachi was done in year 1973; however, being the competent authority and to meet the needs of the ever evolving Society, defendant No,I has used its five vacant open plots, including thee subject plot, for necessary purpose i.e, construction of a petrol pump. It is also averred that a petrol pump is an amenity within the meaning of the DHA Regulations, 2011; therefore, it has been denied that the use of the subject plot for a petrol pump amounts to conversion of the amenity.
6. Defendant No,5 (Shell Pakistan) has also filed counter affidavit to C.M.A. No,12591 /2013 wherein it has been alleged that the subject plot has lawfully been licensed by the defendant No,1 to defendant No,5 for the purpose of constructing and running a petrol pump and though the license also permits a CNG Station but the defendant No,5 is only constructing a petrol pump. It is further alleged that the subject plot is situated on Beach Avenue which runs parallel to the Clifton beach in front of the Dolmen City Mall and after the construction of Chase Departmental Store, Dolmen City Mall and a number of eateries on Beach Avenue, the entire area witnessed a rise in commercial activity so also the motor traffic, therefore, defendant No,1 invited bids through public notices for constructing petrol pumps on plots including the subject plot and defendant No,5 being the highest bidder for the subject plot is a bona fide licensee of the subject plot. It is further alleged that defendant No,5 started construction of a petrol pump on the subject plot after fulfilling all codal formalities and the technical commissioning of the petrol pump on the subject plot and in this regard the defendant No,7 (Department of Explosive) permitted to defendant No,5 for the installation of petrol tanks and gave its approval to the building plan on the subject plot vide letter dated 29.10.2013. It is further stated that the petrol pump on the subject plot was being constructed in accordance with the DHA Regulations, 2011, issued by defendant No,!, which would have no adverse effect on the properties of the plaintiffs and on the quality of lives of any residents.
7. The learned counsel for the plaintiffs has contended that the subject plot was never available in the master plan of the area approved by the DHA in 1973 but all of sudden in the year 2012 the subject plot was created and allocated for the petrol pump against the all norms of town planning.
He has further contended that there is only 40 feet wide road in between the subject plot and the bungalows of the plaintiffs, therefore, creation of petrol pump site, closed to the houses of the plaintiffs, is in gross violation of town planning rules and public safety standards. Referring Regulations Nos. 3 v & jjj, 40, 43 b, d & j of the DHA Regulations 2011, the learned counsel has contended that the sites reserved for the petrol pump comes within the Commercial Zone, while the Residential Zone is earmarked for buildings designed for human habitation and the amenity plots are divided into three categories i.e, education /hospitals, mosques and petrol pumps and the subject plot was never shown in the master plan as reserved amenity plot for petrol pump. He has further contended that the petrol pump or CNG station can be constructed on a main collector street having a right of way of at least 80 feet with minimum street frontage of petrol or CNG station not less than 60 feet but in this case the petrol pump is being constructed over the subject plot situated on a service lane, without inviting public objections through press as required; therefore, the conversion of the subject plot into a petrol pump was without lawful authority and of no legal effect, and the plaintiffs are entitled to seek removal of the unauthorized structure of petrol pump from the subject plot. The learned counsel has further contended that the plaintiffs have made out a prima facie good case in their favour and balance of convenience also lies in their favour and they shall suffer irreparable loss and injury, if the interim injunctive relief is not granted to them. In support of his contentions, the learned counsel has relied upon the following case-law:
1. M/s. Excell Builders and others v. Ardeshir Cowasjee and others (1999 SCMR 2089),It has been held that the regulations overlooked or breached earlier would not justify the repetition of the violation of the same.
2. Ms. Shehla Zia and others v. WAPDA (PLD 1994 Supreme Court 693). It has been held in a case of construction of grid station that no government agency has a right to endanger the life of citizens by its actions without the latter's consent and that where zoning laws vest rights in citizen, the same cannot be withdrawn or altered without the citizens' consent.
3. Abdul Razzaq v. Karachi Building Control Authority and others (PLD 1994 Supreme Court 512). It has been held that it is imperative on the public functionaries to ensure the adherence to the regulations, and alteration in a housing scheme can be made for the good of the people-at-large, but not for the benefit of an individual for favoring him at the cost of other people.
4. Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 Supreme Court 14). It has been held that a public office is a public agency or trust created in the interest and for the benefit of the people. A public official who undertakes to perform and act, even an act which is completely discretionary must do so reasonably and in complete good faith without such delay as would frustrate its ultimate object.
5. Pakistan National Oils Limited and another v. Sattar Muhammad (1980 SCMR 686). It has been observed in a civil appeal that the respondent had indeed an independent cause of action to seek the removal of the illegal constructed petrol pump which amounted to a public nuisance.
6. Mst. Ummatullah through Attorney v. Province of Sindh through Secretary, Ministry of Housing and Town Planning, Karachi and 6 others (PLD 2010 Karachi 236). It has been held that the subordinate legislative instrument comes into force on the date of publication provided the same was issued under proper authority.
7. Queens Road Lane v. City District Government and others (2006 CLC 272). It has been held that the City District Government is bound by law to safeguard the interest of the public.
8. Sobho Mal and another v. Karachi Development Authority (K.D.A.) and others (2005 YLR 2412). It has been held that an amenity plot cannot be converted to any other purpose without inviting public objections.
9. Clifton and Defence Traders Welfare Association through General Secretary v. President, Clifton Cantonment Board, Karachi and 4 others (PLD 2003 Karachi 495). It has been held that right to view and sight emanates from "right as to any property" and "right of enjoyment of property" and such right is equally important and valuable right attached to a person's property.
10. Clifton Centre Association (CCA) Clifton Karachi, through General Secretary v. City District Government Karachi through Nazim-e-Aala Municipal Building, Karachi and 3 others (PLD 2003 Karachi 477). It has been held that right to enjoyment of property is not simply a right to possess and occupy property, same includes right to free ingress and egress, right to reap benefit, right of view or exposure to and from particular property.
11. Dr. Zahir Ansari and others v. Karachi Development Authority and others (PLD 2000 Karachi 168).
The injunctive order was passed against the defendants restraining them from raisin further construction on a plot till final decision of the suit, holding that the balance of convenience was in favour of petitioners because if the injunction was not granted and the respondents, were allowed to raise construction or deal with the plot in question, it would cause great inconvenience to the owners of the residence of the houses.
8. On the other hand, learned counsel for defendant No,1 has contended that the subject plot was never earmarked as amenity/green belt plot, as alleged by the plaintiffs, but it was an open plot; left open for the subsequent planning and utilization under the approved revised master plan of DHA but the plaintiffs have incorrectly described it as a case of conversion of an amenity plot in to a petrol pump side. Defining the green belt under the DHA Regulations 2011, the learned counsel has contended that the "Green Belt" is an area of 4 feet outside a residential bungalow only; therefore, the subject plot being ad-measuring 1000 square yards corner plot cannot be termed as a "Green Belt" and as per engineering practices of town planning a public park is never constructed on an area as small as 1000 square yards. The learned counsel has further contended that under the Presidential Order No,7 of 1980 read with DHA Regulations 2011 it is the prerogative of the defendant No,1 to put the subject plot to a suitable use, therefore, the same was converted into a petrol pump site after fulfilling all the procedural requirements. The learned Counsel has also contended that under Regulation No,40 read with Regulation No,43 of DHA Regulations, 2011, a petrol pump use is also categorized as an 'amenity use' and not as a commercial use. Learned counsel has maintained that no other petrol pump is operating in the subject vicinity and the subject petrol pump is necessary to serve the need of the locality. He has further maintained that the petrol pumps are part of public necessity; therefore, the same are located in every residential as well as industrial/ commercial area. In support of his, contentions, the learned counsel has placed his reliance upon the following case-law:
1. Jawad Mir Muhammadi and others v. Haroon Mirza and others (PLD 2007 SC 472). It has been held that the infringement of rights to light, fresh air and .Clean environment can be established only by producing satisfactory evidence and not merely on the statements in the pleadings of the affected party..
2. A. Razaq Adamjee and another v. Messrs Datari Construction Company (Pvt.) Ltd. And another (2005 SCMR 142). It has been held that the existence of nuisance occurring or apprehended is a pure question of fact, which in cases of permanent injunction or damages, is bound to be proved through evidence.
3. Multilane Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 Supreme Court 423). In a case wherein there were so many high rise buildings in the same area where building in dispute was constructed, it has been held that that petitioners cannot be allowed to pick and choose and hold grievance against one particular builder when in the same neighborhood several high rise buildings of same height had been constructed without any objection from any quarter.
4. Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 Supreme Court 512). It has been held that the object of model city planning seems to be to ensure maximum comforts for the residents of the city by providing maximum facilities.
5. Federation of Pakistan v. Aitzaz Ahsan and another (PLD 1989 SC 61). It has been held that until a law is finally held to be ultra vires for any reason, it should have its normal operation.
6. Mst. Noor Jehan v. City District Government, Karachi through District Co-ordination Officer and 6 others (2010 CLC 669). It has been observed by this Court while refusing injunctive relief against the construction of a CNG station that in case if the construction is stopped, the defendants would suffer irreparable loss.
7. Messrs Al-Munaf Corporation through Partner v. Sindh Industrial Trading Estate Ltd. Through Secretary and 4 others (2009 CLC 950). It has been held that the patrol pump and CNG stations are part of public necessity; therefore, the course of declaring entire roads as commercial would rather become counterproductive and in incongruous if the petrol pumps and CNG stations are completely prohibited from such declared commercial roads.
8. Sultan Ahmed v. Dr. Shaheen A. Hussain and 8 others (2009 MLD 231). It has been held that now- a-days use of CNG is termed a green environment and causes reduction of pollution while adjacent to multi storeyed buildings there are certain petrol/CNG stations while no incident of bursting cylinder of the CNG/ petrol station has been reported except one or two due to the leakage of gas by mishandling and keeping in view the number of CNG stations, such incidents are negligible and common in all types of trade.
9. Mrs. Zunaira Khan through Attorney v. Federation of Pakistan through Secretary of Ministry of Petroleum and others (2008 YLR 1701). It has been observed that the CNG stations and petrol pumps are located in every residential area as well as industrial areas and no restriction thereto could be read into the law in the absence of a specific provision in.The law regulating or otherwise applicable to such trade, business or profession, as right to carry on business, trade or profession is a fundamental right guaranteed by the Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973.
10. Mrs. Alba D'Sa and others v. Mrs. Naheed Pabani and others (2008 YLR 738). The Court refused to grant interim injunction to the plaintiff against the construction of a multi storeyed building holding that the plaintiff had no prima facie case and the balance of convenience was also not in favour of the plaintiff as great inconvenience would be caused to the defendants being owners of the properties in exercising their legal right to deal with their properties as per law.
11. Messrs Shaheen Services v. CDGK and others (2005 YLR 1895). The Court refused to grant interim injunctive relief holding that the right of business or trade is a guaranteed right under the Constitution of Pakistan and no law has been cited to show that the relocation of the petrol pump of defendant to its proposed site was in violation of any law or rules.
9. The learned counsel for the defendant No,5 has contended that the defendant No,5 has obtained all the requisite permits and approvals for constructing and operating the petrol pump from the DHA, the Commissioner Karachi and the Department of Explosive. He has further contended that the suit plot is located at the safe distance from the properties of the plaintiffs and the defendant No,5 being world renowned petroleum company ensures strict compliance of fire safety protocols.
Learned counsel has contended that while determining the elements of nuisance, the Court would balance the conflicting rights of the parties and take into consideration the facts and circumstances of the case and such determination cannot be reached by an abstract consideration of the acts alleged to constitute nuisance. Learned counsel has further contended that the plaintiffs have prima facie failed to make out any case for grant of interim injection and it is in fact the defendant No,5 who shall suffer irreparable loss, if the interim injunction is granted to the plaintiffs as, being bona fide licensee of the subject plot, it has already made heavy investment for the construction of the petrol pump and the balance of convenience at this stage is in favour of defendant No,5. In support of his contentions, the learned counsel has relied upon the following case-law:
1. A. Razzak Adamjee and another v. MessrsDatari Construction Company Limited and others (2005 SCMR 142): It has been held that the existence of nuisance occurring or apprehended is a pure question of fact which, in cases of permanent injunction or damages, is bound to be proved through evidence.
2. Abdul Rashid through Legal Heirs and 6 others v. Mahmood Ali Khan 1994 SCMR 2163). It has been held that the terms 'nuisance' is not capable of any exact definition mainly for the reasons that determination of any act as a nuisance depends upon a variety of reasons and consideration.
An act may be a nuisance in a particular locality but not in the other, it may be nuisance at a particular time but not at another time. One has to reach such a conclusion by balancing the conflicting rights and taking into consideration the facts and circumstances of each case and not merely by an abstract consideration of the act itself.
3. Messrs Al-Munaf Corporation through Partner. v. Sindh Industrial Trading Estate Ltd. Through Secretary and 4 others (2009 CLC 95). The interim injunctive order already granted was vacated by the Court holding that plea of easement rights would require evidence and that the plaintiff had not made out a prima facie case, balance of convenience would lie in allowing defendant to complete C.N.G stations/petrol pump as continuation of order of interim injunction would cause heavy loss to the defendant for having made heavy investment.
4. Mst. Seema and others v. Messrs Millennium Developers and others (2003 CLC 632). The defendant was allowed to raise construction holding that section 15 of the Easements Act attaches conditions to right, which are of fact needs trial and without proving such right and the defendant cannot be restrained from raising construction under the approved plan merely on the basis of plea of violation of easement right.
10. I have heard the learned counsel for the parties and perused the material available on record.
11. In order to apiireciate the contentions of the learned counsel for the parties, it would be advantageous if the relevant provisions of DHA Regulations 2011 are reproduced: ' Regulation 3. Definitions.
' Amenity Plot: A plot allocated exclusively for the purpose of amenity uses, such as government offices, health, welfare, education, worship places, burial ground, parking and recreational areas. v.
Commercial Zone: It includes the area for shops, show rooms, stores or godowns, warehouses, shopping centers, hotels and sites reserved for filling stations, etc. ' Residential Zone: A zone earmarked for buildings exclusively designed for human habitation and in no case shall include its use in whole or a part thereof for any other Purpose e.g. Shops, clinics, offices, schools, workshops, store or godowns or any other commercial activity.
'Regulation 33. General Conditions. The following conditions shall apply to residential building regulations:- aa. Maximum allowable width of green belt outside residential plot is 4 ft. Out of which 2 ft. Adjacent to wall can be utilized as flowerbed and rest of the area between flowerbed and shoulder of the road shall be kept green with grass only. The owners/ occupants will not grow any vegetation /trees so as to encroach/ occupy the space or block the road or reduce the openness of the area which mar the aesthetics of the surrounding/road/ khayaban and create obstruction. Plantation of trees/shrubs and erection of any obstructions is/are prohibited beyond 2 ft. Adjacent to boundary wall.
' Regulation 40. Standards for Health and Education Amenity Buildings.
' Amenity plots are divided into three categories i.e, for education/hospitals, mosques and petrol pumps.......................
' Regulation 43. Standards for Petrol Pumps and CNG Stations b. A petrol or CNG Station may be located only on a main collector street having a right of way
(ROW) of at least 80 ft. The minimum street frontage of a petrol or CNG station shall not be less than 60 ft. e. The minimum area of a petrol station used for petrol filling facilities and servicing activities shall not be less than 1000 sq. Yds.
3. Petrol or CNG Station can be allowed on commercial plots after conversion into specific designated petrol pump or CNG use provided all other requirements noted above are met and after calling of public objections through press and with the approval of PDOHA on payment of prescribed fees.
12. Injunction, by its nature, is a preventive remedy for the purpose of preserving the status quo of the matter of suit pending the determination of suit. By use of words "status quo" all that can be implied is that same status in regard to title or possession of immoveable property as existed on date of filing of suit is to be maintained. For issuance or refusal of interim injunction what the Court has to see is that a good prima facie arguable case is made out in favour of the plaintiff and if the plaintiff succeeds in establishing a good prima facie arguable case then, other two ingredients, irreparable loss and balance of convenience would be looked into. The Court has to make only a tentative assessm ent of plaintiff's case for enabling itself to see whether above mentioned three prerequisites for grant of injunction exist in favour of plaintiff or not. While dilating upon the merits of a case on these parameters, the Courts may tentatively examine the pleadings, affidavits, counter affidavits, rejoinder, if any, and the documents annexed thereto.
13. The term "prima facie case" is not specifically defined in the Code of Civil Procedure, 1908. The judge made law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the people and its infringement at the hands of the opposite party. For, unless the plaintiff shows existence of some of his right and its infringement, it shall not be deemed that he has any prima facie case. The existence of a prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application, and such evidence or material should be of the nature that by considering the same Court should or ought to be of the view that the plaintiff applying for injunction is in all probabilities likely to succeed in the suit by having a decision in his favour. Where no prima facie case is made out by the plaintiff, no temporary injunction can be issued in his favour and, likewise, where prima facie case could not be established without recording evidence, the Court would refrain from granting such injunction.
14. Irreparable loss means simply such loss, which is incapable of being calculated on the yardstick of money. For grant of interim injunction the existence of a prima facie case is not by itself sufficient, the plaintiff should further show that irreparable loss will occur to him, if the injunction is not granted and that there is no other remedy open to him by which he can protect himself from the consequences of the apprehended injury.
15. Balance of convenience as a requisite for grant of interim injunction in favour of plaintiff means if an injunction is not granted and the suit is ultimately decreed in favour of the plaintiff the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant if an injunction is granted but the suit is ultimately dismissed. Although it is called "balance of convenience", it is in fact the "balance of inconvenience", and it is for the plaintiff to show that the inconvenience caused to him would be greater than that which may be caused to the defendant. The Court whilst granting temporary injunction weighs one party's needs against other party's needs and determine where the balance of convenience lies.
16. I the instant suit, as per pleadings, the plaintiffs have set out following claims: 1 The subject plot is a green belt and thus an amenity for the plaintiffs and other residents of the area, and therefore the same cannot be converted for any other use.
2. The defendant No,5 does not have the requisite permits to construct a petrol pump on the subject plot.
3. The construction of a petrol pump on the subject plot would be a nuisance to the plaintiffs; and
4. The construction of a petrol pump on the subject plot violates the easement rights of the plaintiffs.
17. As regards the first point, the plaintiffs have not produced the copy of any approved master plan to show that the subject plot was allocated or earmarked for the purpose of park, green belt or reserved by the defendant No,1 as amenity plot. Against the case of the plaintiffs, the defendant No,1 has pleaded that the subject plot was in fact an open plot reserved for future planning and in support of its case the defendant No,1 has filed the copy of master plan of DHA dated 18.08.1973 as annexure CA/13 along with counter affidavit to the application. In absence of any thing contrary to the assertion of defendant No, 1, it may be ensued that in a town planning certain plots are left open/un-allocated while making a master plan for an area for the needs that .May arise in the future depending on how the area. Develops. The plaintiffs have not cited any provisions of law that provides that while preparing a master plan all the plots should be allocated and earmarked for specific purposes. If the subject plot had not been previously allocated as residential, commercial or amenity, then question of its conversion does not arise and the defendant No,1 is free to allocate it as and when the need arises. For the sake of arguments, even if it is assumed that the subject plot had already been allocated and earmarked as an amenity plot, then Regulation 40 of the DHA Regulations 2011 expressly provides that a petrol pump is one of the categories of amenity and it is not the case of the plaintiffs that the subject plot can be used for any other amenity such as for government offices, health, education, Worship places, etc. But their case is that it can only be used as a green belt and nothing can be constructed thereon. The petrol pump on the suit plot, prima facie, meet with the "Standards for Petrol Pumps" as set out in Regulation 43 (ibid), with three side corners i.e, facing Beach Avenue, which is a 120 feet wide main road, 40 feet wide 'A' Street on back side, 60 feet wide 'E' Street on left side and an open plot No,18 on the right side.
18. With regard to the second point, it appears that the defendant No,5 has produced along with his counter affidavit to the application photocopies of (i) license agreement dated 28.09.2012 issued by the defendant No,1 for construction of petrol pump (ii) demarcation plan of the subject plot (iii) approval letter dated 18.09.2013 of defendant No,!, approving the building plan (iv) building plan duly approved by defendant No,1 (v) No Objection Certificate dated 07.10.2013, issued by the Commissioner, Karachi (vi) permission of defendant No,7 (Department of Explosives) dated 09.10.2013 and (vii) license issued by the defendant No,7 for construction of petrol pump and storing of petrol at the subject plot. All these documents, prima facie, establish the fact that the defendant No,5 had fulfilled all the codal formalities for the construction of petrol pump on the subject plot under the license granted by the defendant No, 1 .
19. As regards the third point, it is apprehension of the plaintiffs that the construction of tht. Petrol pump on the subject plot would cause nuisance, endanger to their lives, damage and diminish the market value of the plaintiffs' properties. The term 'nuisance' is not capable of any exact definition mainly for the reason that determination of any act as a nuisance depends upon a variety of reasons and considerations. An act may be a nuisance in a particular locality but not in the other, it may be nuisance at particular time but not at another time. One has to reach such a conclusion by balancing the conflicting rights and taking into consideration the facts and circumstances of each case and not merely by an abstract consideration of the act itself. In the present day of advancement in technology, commercial and industrial activities, one has to take into consideration such facts while determining the existence of a nuisance. Reliance in this regard is placed upon the case of Abdul Rashid through Legal Heirs and 6 others (supra). In the instant case the building/layout plan of the subject plot (Annexure CA/11) shows that the subject plot is situated at Beach Avenue, a 120 feet wide road, from the front side, therefore, the natural flow of the traffic coming to and leaving the petrol pump would be from the front side / Beach. Avenue. If for She sake of arguments it is assumed that the vehicles may use the 40 feet road at the back of the subject plot in such numbers so as to cause a traffic congestion to the extent of causing nuisance, such nuisance can be re-mediated by imposing a condition on defendant No,5 by the defendant No,1 to allow access to the petrol pump only from front side i.e, Beach Avenue. If it is not so in the instant case, then the question of causing nuisance to the plaintiffs by the operation of petrol pump comes before the Court as a pure question of fact required to be proved through evidence and the apprehension of the plaintiffs at this stage is merely hypothetical and conjectural. So far the value of the properties of the plaintiffs is concerned.
20. As regards the fourth point, it is the claim of the plaintiffs that the construction of petrol pumps on the subject plot would violate their easement rights. It is yet to be established by the plaintiffs through substantial evidence that, being owner or occupier of certain immovable property, they have been enjoying easement uninterruptedly as absolute right for last twenty years and thus, as held by the apex Court in the case of Abdul Khalid alias Mithoo v. Moulvi Sher Jan and others reported as 2007 SCMR 901, they fulfill the following conditions as required under Section 15 of the Easements Act, 1882, for the acquisition of a right of easement by prescription, i) The right claimed must not be uncertain. Ii) The right claimed must have been enjoyed. Iii) It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed. Iv) It must have been enjoyed (a) peaceably, (b) openly, (c) as of right, (d) as an easement, (e) without interruption, (f) for twenty years.
' As such, the determination of above-mentioned attached conditions to the easement right, claimed by the plaintiffs, need trial and without proving such right I am of the view that the defendants cannot be restrained from raising construction of petrol pump under an approved plan merely on the basis of plea of violation of easement right.
21. Keeping in view of the aforementioned facts of the case, I am of the tentative opinion that there is nothing on record to show that the subject plot was an amenity/ park or green belt; therefore, plaintiffs could not establish arguably the existence of right claimed in the suit and infringement thereof to make out a prima facies case for injunction. The balance of convenience also does not lie in favour of plaintiffs but in favour of defendant No,5, who has incurred heavy investment for construction of petrol pump after taking the subject plot under a license, thus, it is the defendant No,5 who would suffer more inconveniently by granting of injunction than the plaintiff by withholding of injunction. In similar terms, it is the defendant No,5 who shall suffer irreparable loss rather than the plaintiffs. The question of nuisance and infringement of easement rights would be determined after recording of evidence of the parties in suit. As such, I am not inclined to grant discretionary relief of injunction and, therefore, this application (C.M.A. No,12591/2013) is dismissed with no order as to costs. However, the construction so raised would be subject to the determination of the status of the subject, as claimed by the parties in suit, and plaintiffs' easement right to be proved at the trial.
22. Since the injunction application has been dismissed, the application being C.M.A. No, 12592 /2013, filed by the plaintiffs under Order XL, Rule 1, read with Section 151, C.P.C., has become infructuous and is disposed of accordingly.
23. Before parting with this Order I may clarify that the observations made herein above are tentative in nature and will not be taken into consideration by the Court while deciding main suit after examining the evidence produced by the parties.