1. Before coming to the consideration of the above application, it is necessary to refer to the contents of the plaint in the suit.
2. The plaintiffs Abdul Razzaq Admajee and Abdul Hameed Adamjee are the owners of the plot situated in KDA Scheme No.5. The plaint has been filed under section 91, C.P.C. After obtaining permission from the Advocate-- General, Sindh. In para. 1 of the plaint, it ha,, been asserted that the suit was being filed by the said plaintiffs alongwith other persons mentioned in Annexure-I to the plaint who also own and occupy residential premises in the above scheme. According to the plaint, as per policy adopted by defendant No.1, Director-General of Karachi Development Authority in 1963 the entire Clifton area for its development continued to envisage the said area as entirely residential one. The plaintiffs and so also the other residents of the Clifton area on the basis of the aforesaid designation and representation by defendant No.1 purchased plots in Clifton area and constructed residential premises for their personal occupation. It is the case of the plaintiffs that defendant No.1 charged substantial premium for grant of lease from the plaintiffs. In the year 1982, defendants Nos. 1 and 2, without consulting the residents of the Clifton area decided to permit commercialisation of plots in the 14 areas of the Karachi Division mentioned therein including the Clifton area. Pursuant to the aforesaid policy, a number of commercial buildings were constructed between Clifton Bridge and the crossing of main Clifton Road with Khayaban-e-Jami and some areas towards Mideast Hospital on the main Clifton Road. In 1984, defendant No.3, who is the owner of plot No. G-7, Block 9, KDA Scheme No.5, applied to the first two defendants for permission for commercialisation of its plot measuring 6921.66 square yards and such permission was accorded.
3. When the plaintiffs and other residents of Clifton came to know about the aforesaid commercialisation, they protested that the said commercialisation had taken place without consulting them and without consideration of the consequences that were going to arise like those of public nuisance. On such representation defendant No.1 suspended the order of commercialisation of the said plot. Of defendant No.3. Defendant No.3 against the above order of defendant No.1 filed Constitutional Petition No.D-248/1985. The plaintiffs and some other residents on their application became parties in the above petition and they filed their respective counter- affidavits. The said petition was allowed by judgment dated 6-3-1986 by a Division Bench of this Court. It is alleged that while allowing the aforesaid petition the contentions and submissions made by the plaintiffs and other residents of the area were not considered and they were verbally informed that their grievances could not be considered in the said petition. It is then stated that defendants Nos. 1 and 2 filed a petition for leave to appeal before the Supreme Court which was pending. It is disclosed that the plaintiffs had resisted the petition not only on the ground of privacy but also on the grounds of over population, traffic hazards and congestion, smoky and polluted environment, creation of terrible sanitary conditions, breakdown of essential services like electricity, gas, telephone and considerable reduction of water and security problems, in making living conditions of the residents of the Clifton area extremely difficult by creating circumstances likely to give rise to a considerable number of public nuisances.
4. It is urged that the plaintiffs and the other residents of the Clifton area having received no redress by becoming a party in Constitutional Petition No.D-248 of 1985, authorised the plaintiffs to file a representative suit. On the above grounds, the plaintiffs are seeking declaration, "that defendants Nos.1 and 2 are not entitled to commercialise residential plots in the Clifton area whereby public nuisances in the shape of traffic hazards or traffic congestion or over parking or smoky and polluted environment or creation of sanitary conditions or breakdown of essential services like electricity or gas or telephone or reduction in water supply or creation of impossible security problems will result; (b) a declaration that the commercialisation of residential plots cannot take place without the consent and concurrence of the resident of the Clifton area whose living conditions are likely to be affected thereby". They have also prayed for permanent injunction restraining the defendants from permitting the construction of a multistoreyed building on the said plot as it would result in all or any public nuisances mentioned above.
5. Alongwith the plaint no application was filed for the interlocutory relief that has been sought in the above C.MA. Which was filed on 10-10-1990 after the aforesaid round of litigation commenced by filing the aforesaid Constitutional petition came to an end, praying for interim injunction restraining defendant No3 from raising a multistorey building on the plot and prohibiting defendants Nos. 1 and 2 from commercialising the plot of the said defendant without giving a public hearing as required under Article 40 of Karachi Development Authority Order, 1957.
6. The defendants have filed their counter-affidavits in reply to the aforesaid application and the plaintiff Abdul Razzak Adamjee has filed his affidavits in rejoinder in reply to the said counter- affidavits of the defendants.
7. The main submission of the learned counsel for the plaintiff is that the order of commercialisation of the plot in dispute is illegal and in violation of Zoning Regulations, 1972 FOR PLOTS IN KDA SCHEMES dated 21-11-1972 published in the Sindh Government Gazette of December 28,1972 (hereinafter referred to as `Regulations of 1972) and Article 40 of the Karachi Development Authority Order (V of 1957) (hereinafter referred to as `Order of 1957').
8. On the other hand, the learned counsel for the defendants have urged that the first two defendants were competent to do so and in any case the issue having been determined in the earlier round of litigation, it is not open to the plaintiffs to re-open the case.
9. The present suit was filed by the plaintiffs during the pendency of the petitions for leave to appeal.
10. As the plaint does not disclose the developments that took place after the decision of the aforesaid Constitutional petition, it is necessary to first refer to the said proceedings for better appreciation of the attending circumstances before consideration of the submissions made at the Bar.
11. K.DA. Filed petition for leave to appeal. The leave was granted and the appeals were disposed of with the consent of all the parties by judgment dated 4-3-1990, whereby the matter was remanded for disposal to the Governor of Sindh, who decided the matter by order, dated 28-5-1990, upholding the legality of the commercialisation of the plot.
12. The above judgment and order bring forth the following facts:---
(I) The lease was executed by K.DA. In favour of defendant No3 on 21-4-1980 granting 99 years' lease of the plot in dispute with following covenants incorporated in clauses (8) and (11) thereof, which have been reproduced in the judgment of the Hon'ble Supreme Court:--- "(8) The lessee shall construct a building 'on the demised plot according to the approved plan with 10 years of the service of the order of possession by the Directorate of Lands and Estates, K.DA. The said plot and the building and structure thereon shall be used for residential purposes only and shall not be diverted to other use without the previous consent in writing of the lessor. For breach of this covenant the lessor shall be entitled to forfeit the lease and to resume the plot."
13. "(11) The lessee shall not use the demised plot or any building or structure thereon or suffer the same to be used for any business manufacture of occupation or for any purpose or in any manner which may be nuisance to the lessor or the occupier of adjacent or other premises in neighbourhood."
(II) Defendant No.3 made an application to K.DA. On 29-1-1984 for commercialisation of the plot, which was granted on 21-4-1984.
(III) The plaintiffs and others raised objection against the above order. The then Governor by his order dated 25-4-1984, suspended action on the above order, pending his decision and called report from K.DA.
(IV) Defendant No.1 in his report stated that the above permission was granted to defendant No.3 on the basis of a Policy Decision approved by the then Governor of Sindh for the commercialisation of the plots on the main road of Clifton, Karachi.
14. (V)The above order dated 25-4-1984, passed by the Governor was found to be an interim order and not final order. The learned Advocates for the parties appearing before the Hon'ble Supreme Court, prayed that the case be remanded to the Governor for passing final order in accordance with the law, after hearing all the parties and the matter was accordingly remanded to Sindh Governor.
(VI) Pursuant to the above judgment of the Supreme Court, the matter was taken up by the then Governor and decided by his order, dated 20-5-1990, copy whereof has been filed by the plaintiffs with their application under consideration.
15. The learned Governor found that No-Objection Certificate dated 21-4-1984 issued by K.DA., commercialising the plot in dispute, was in accordance with law and the Policy Decision contained in Resolution No.220, dated 11-5-1980, in pursuance of which Administrative Instruction No.57 dated 21-7-1982 were issued by K.DA. And that the above decision was approved by the then Governor of Sindh and the then Government of Sindh, which enabled K.DA./K.B.CA. To commercialise plots in as many' as 15 different areas of Karachi, including Main Clifton Road plots. Defendant No.3 was found to have paid additional charges of Rs.27,68,664 for the said commercialisation of the plot.
(VII) In the result the order dated 26-5-1984 was vacated and order dated 21-4-1984 was restored.
16. The submissions of the learned Advocate for the plaintiffs are to be considered in the above background.
17. The legality of the order of conversion of the plot in dispute from residential to commercial has been challenged on the grounds that no notice was given to the affected persons including the plaintiffs before allowing the said conversion and that the said order of conversion having not been published in the Gazette is ineffective in law-The reliance has been placed on Articles 15,16- and 40 of the Order of 1957 and Regulations, 1972.
18. Article 40 of Order, 1957 reads as under:--- "40. Zonal Plan Scheme.---(1) The Authority may, from time to time, in regard to any area wholly without or partly within and partly without the City, make Zonal Plans showing the purpose for which any land in any area shall be primarily used; such plans may indicate any area reserved for residential purposes,' commercial purposes, industrial purposes, agricultural purposes, open spaces, height, coverage, type, density, spacing and any other purpose, which the Authority may consider necessary.
(2) The procedure laid down in Article 36 for proposed deferred street scheme shall, so far as applicable apply to plans under clause (1).
(3) An order of the Provincial Government sanctioning the Zonal Plan Scheme shall be notified in the official Gazette and thereafter it shall be unlawful for any person to use or cause to be used any land for any purpose other than that laid down in the Zonal Plan Scheme unless he has been permitted to do so under clause (4).
(4) If any person desires to use any land for any purpose other than that laid down in the Zonal Plan Scheme notified under clause (3), he may apply to the Authority for permission to do so and the Authority may order a public hearing and give notice to all persons it deems affected.
(5) If the Authority refuses permission to any person, such person may within thirty days of the Authority's refusal, move the Provincial Government for a revision of the case.
(6) The decision of the Provincial Government on any such revision shall be final."
19. Sub-Article (1) shows that the powers to make Zonal Plans are vested in K.DA. It is not further provided that the Zonal Plans will be subject to sanction by the Provincial Government. Clause (3) lays down that an order of the Provincial Government sanctioning Zonal Plan Scheme, that is to say, when there is an order sanctioning such plan, shall be notified in the official Gazette and thereafter it shall be unlawful for any person to use any land for any purpose other than that laid down in the Scheme, unless he has permitted to do so under clause (4); which clause provides that if any person desires to use the land for purpose other than the one laid down in the Scheme he may apply to the Authority and the Authority may order public hearing and give notice to all persons it deems affected.
20. It has neither been averred in the plaint, nor urged by the learned counsel for the plaintiffs that Scheme No.5, within which the plot in question is comprised was sanctioned or notified by the Provincial Government.
21. The above inference that the said Scheme was so made and enforced by K.DA. Finds support from the fact that the Regulations of 1972 were made and notified by the Authority itself, which regulate the use of the plots, including those of Scheme No.5.
22. The Special Conditions of Zoning mentioned in para. 4 of the Regulations of 1972 are to be read with General Zoning Conditions prescribed in Schedule "A" thereof which are made applicable to all the K.DA. Schemes. Para (f) thereof reads as under:--- "(f) Plots allotted or auctioned for residential, commercial, industrial, amenities and multistoreyed flats shall be exclusively used for the purpose they are meant as per terms and conditions of allotments or auction unless the conversion of the use is allowed by KD.A." (Underlined to supply emphasis; here in italics).
23. On the mere reading of the aforesaid clause it is clear that the Authority has reserved the power of conversion of use to itself, the Scheme having been framed by it.
24. It was in exercise of the powers conferred on the Authority that it took the decision permitting commercialisation in as many as fifteen areas or Zonal Schemes of the Karachi Division, by its Resolution No.220, which is being rightly described by the plaintiffs as general policy in para. 5 and policy in para. 6 of the plaint and as Policy Decision by the learned Governor.
25. The above decision was also approved by the then Governor and the Provincial Government, as has been confirmed by the learned Governor.
26. The learned counsel for the plaintiff, however, submitted that the above decision will come into force only when it is published as required by Article 16 of Order of 1957 in the official Gazette.
27. The submission is devoid of any force, firstly for the reason that the above Article requires prior publication of only the Rules and Regulations framed by the Authority and not all the decisions or orders made by it, secondly, the Authority having framed the Regulations of 1972 reserving to itself the authority to grant conversion of use of land, which were published as prescribed by law, it was not required to publish decisions taken in exercise of the said power, thirdly, the order dated 25-4- 1984, passed on the applications of the plaintiffs and others by the then Governor was found by the Hon'ble Supreme Court to be an interim order and with the consent of all the Advocates appearing for the parties, including the Advocate for the plaintiffs, the matter was remanded to the Governor for final disposal, who maintained order, dated 21-4-1984. The above proceedings were under Article 40 of the Order of 1957. The plaintiffs' application was one under clause (5) of the said Article for revision of the order dated 21-4-1984, passed by the Authority and was disposed of by the Governor under the said provisions and accordingly under clause (5) the above decision became final. Such decision of the Governor does not require publication in the Gazette. Additionally the above policy decision having been approved by the Provincial Government, the said Article does not come in the way of its enforceability.
28. No provisions have been pointed out in the aforesaid Order of 1957 requiring previous publication of the Policy Decision or the order of the above nature passed by the Provincial Government.
29. The learned counsel for defendant No.3 contended that the above issue stands finally resolved in the previous litigation. The case was remanded to the Provincial Government for passing final order with the consent of all the parties including the learned counsel for the plaintiffs. It appears from the order gassed by the Governor that Mr. Naeemur Rahman, who appeared before him on behalf of the plaintiffs, had taken the stand and so also by the plaintiffs in their personal communication that they had not consented to passing of the above order by the Hon'ble Supreme Court. The learned Governor had, therefore, observed that although an opportunity was given to the said learned counsel to move the Supreme Court to get the aforesaid error rectified by the Supreme Court but the above opportunity was not availed. As the things stand, it appears that it was a consent order by which the case was remanded to the Governor. However, in view of the above observations, it is not necessary to decide the question of res judicata, at this interlocutory stage.
30. It has been found that the commercialisation of the plot is prima facie in accordance with law.
31. There is no plea that defendant No.3 is raising construction without approved plans. The only point urged by Mr. Naeemur Rahman in this regard is that the plans were got approved from the Karachi Building Control Authority, whereas the area where the plot is situated, now stands transferred, for municipal purposes, to the Cantonment Board and, therefore, the said approved plans have become redundant. Mr. Mubarak Hussain Siddiqui pointed out that after transfer of the area, the said defendant has got the plans approved from the Cantonment Board also. The above submission was not controverted by the learned Advocate for the plaintiffs.
32. The application under consideration has been filed seeking interim injunction, for restraining defendant No.3 from raising multistorey building on the plot and the first two defendants from commercialising the plot without hearing as required under Article 40 of the Order of 1957.
33. As the plot was commercialised before institution of the suit, the second prayer is infructuous.
34. Now the question arises whether the plaintiffs, in the facts and circumstances of the case, are entitled to grant of injunction and will it be just and reasonable to restrain defendant No.3 from constructing building in accordance with law.
35. Injunction is a discretionary relief. As a rule discretion is to be exercised in accordance with reason and sound judicial principles. The Court while dealing with an application for grant of temporary injunction has to look to and assess all the circumstances of obtaining in a suit and moreso, as such is an equitable relief. An injunction is to be issued in aid of equity and justice. The Court has to scrutinise and analyse the conduct of the plaintiffs to assess their entitlement to grant of such relief and look to the reasonableness of the orders sought.
36. For grant of such relief the plaintiffs have to establish a strong prima facie case. The plaint must reveal as to in what manner the alleged wrong would perpetuate itself against the alleged right of the plaintiffs. They have to show that the balance of convenience is on their side. They have also to display, that they would suffer irreparable injury, unless the injunction sought is granted.
37. It is not the case of the plaintiffs that defendant No.3 should not be permitted to raise any construction whatsoever on the plot in dispute. Their case is that the said defendant may not be allowed to raise multistorey building. No statutory definition of the term Multistorey building was pointed out. It may mean two storeys or more.
38. The plaintiffs have not disclosed their perception of the term "multi--storey building" or of the number of the storeys that can be legally raised by defendant No.3 or for which the plans have been approved, or the number of storeys the said defendant may or may not be permitted to raise.
39. The prayer made in the application thus suffers from vagueness and it would be against the norms of justice to grant the same.
40. The plaintiffs' case, as revealed in the plaint, in brief is that pursuant to commercialisation policy a number of commercial buildings have been created in the area in question, that the plaintiffs had resisted the Constitutional petition not only on the grounds of "lack of privacy but also on the grounds of over population, traffic hazards and congestion, smoky and polluted atmosphere, creation of terrible sanitary conditions and breakdown of essential services.
41. The cause of action is projected in para No.15 of the plaint as under:--- "15. That it is submitted that cause of action arose in commercialising properties in other parts of Karachi generally and particularly in the Clifton Area which since has resulted in overpopulation and public nuisances of traffic hazards and congestion, smoky and polluted environment, terrible sanitary conditions, frequent breakdown of electricity, gas, telephone and supply of water to say nothing of the traffic hazards and is continuing ever since."
42. The above recitals show that the public nuisances have already surfaced. It is not alleged that in case the multistorey building is raised by defendant No.3, it will add to or intensify the said public nuisances, least to say of absence of material facts that could show as to in what manner the building, if raised, would add to those problems. It is not a case, for stopping the entire construction process in the Clifton area.
43. It may be pointed out that the things would have been different if the building in question would have been the first multistorey or commercial building in the Clifton area, but at this stage when the plaintiffs have remained silent spectators and have allowed several buildings to be raised, completed and utilised, they cannot be heard to say that construction of this particular building would add to the public nuisances, although they have not gone even so far as to say this specifically.
44. The plaint does not show that the plaintiffs ever took any steps, except in respect of two buildings, one being the building in question to resist construction of the buildings, which have been constructed from 1982 onwards and have resulted in creation of the alleged evils, the public nuisances, that have polluted the environment and allegedly affected the utility services. It is legal maxim that a person cannot complain of an act, he passively assents to Volenti non fit injuria.
45. Reliance is placed on the case of A.I Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51.
46. As far as the question of privacy is concerned, it has been specifically stated by the learned Advocate for defendant No.3 that his client will not make any openings towards the plot owned by the plaintiffs Abdul Razzak Adamjee and Abdul Hameed Adamjee. It is also so stated in the permission granted for commercialisation that no opening of any kind shall be allowed towards Plot No.G-6.
47. The other ground is that the construction of the building would lead to traffic hazard and congestion, smoky and pollutive environment, creation of terrible sanitary conditions, breakdown of essential services like electricity, gas, telephone and considerable reduction of water. The traffic hazards, over parking, smoky and polluted environment are related to the plying of the private and public vehicles in the area. The Clifton roads are used not only by the residents of the Clifton but by all the citizens including residents of nearby locations and unauthorised colonies in the area. The alleged public nuisances or the matters concerning public services, are not prima facie relatable to the construction of the proposed building.
48. It may be observed that the first two defendants in their written statement, which has been relied upon in their counter-affidavit, have specifically stated that before commercialisation of the plots all the relevant facts were duly considered by the competent authority and that the permission was granted in the greater interest of general public.
49. It appears that according to the plaintiffs it is the building proposed to be raised by defendant No.3 that would create those problems and in case the building is not constructed, neither there will be any traffic hazards, congestion, smo ky and polluted environment nor the problems of sanitation and break--down of essential services will occur. Such approach prima facie does not appear to be reasonable.
50. The plaint does not disclose the necessary details that have resulted in creation of the alleged public nuisances. Only general and sweeping allegations have been made without specifying or disclosing as to in what manner, the so-- called multistorey building to be constructed by defendant No.3 would result into the alleged nuisances or aggravation or extent thereof for consideration of reasonableness of the relief sought.
51. The plaintiffs have failed to establish prima facie case and have yet to place requisite material before the Court, in evidence, to establish the above allegations.
52. No injunction can be granted to prevent, on the ground of nuisance, an act, of which it is not reasonably clear that it will be a nuisance. It is also settled law that it is not sufficient reason for the purpose of issuing a temporary injunction that the suit would be infructuous if it did not issue.
53. Reference may be made to the case of Shahid Cold Agency v. The Chairman, Pakistan Railways and another PLD 1982 Quetta 134, wherein reliance has been placed on the case of N.W. Railway v.
54. N.W. Railways' Union, Lahore AIR 1933 Lah. 203.
55. While considering injunction application, the conduct of the plaintiffs is a relevant factor.
56. The plaintiffs knew about the policy of commercialisation of the plots in Clifton and elsewhere but they did not challenge the said policy at any stage, until No-Objection Certificate was granted to defendant No.3, when they objected to grant of the said Certificate. The averments in the plaint have been made in a manner as if the plaintiffs had challenged the commercialisation of the Clifton area as such, but defendants Nos.1 and 2 in their written statements have stated that their objection did not relate to commercialisation of entire Clifton area but only to Plot No.7. The copies of letters, dated 24th and 25 April, 19s4, written by the plaintiffs respectively and placed on record with the plaint, also confirm the submission that their objections related only to the plot in suit.
57. During the course of the arguments reliance was placed on the judgment in High Court Appeals No s.55 and 58 of 1991. The above appeals arise from Suit No.570 of 1988, filed by the plaintiffs against M/s. Datari Construction Company (Pvt.) Limited. In that suit also relief was sought against a plot owned by that company on the similar general and sweeping allegations, as in the present suit.th The suit was dismissed but no appeal was filed by the plaintiffs, although one was filed by some other residents of the area, which was dismissed. The above facts reveal that the plaintiffs were not interested in seeking such relief against the commercialisation of the entire Clifton area.. Their interest has been limited to the plot in suit and that of the above company only.
58. The Constitutional petition filed by defendant No.3 was allowed on 6-3-1986, The plaintiffs did not challenge the order passed in the aforesaid petition. The appeal was filed against the said judgment by the first two defendants and since the plaintiffs were party in the above petition, they were joined as respondents. The present suit was instituted by them on 19-1-1987. The above reveals the extent of their interest even in seeking relief against the plot in dispute.
59. The learned counsel for the plaintiffs has relied on Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631, wherein injunction was granted restraining, the defendant from opening school in purely residential area on the ground that it would create nuisance for the residents of the area. The injunction was granted, as it was found that the area was purely residential, material facts and specific particulars were pleaded and material was placed before the Court to demonstrate ,that if a school is established on the premises, it would create the apprehended nuisance. It was also found that the school was being established in violation of the negative covenants incorporated in the lease of the plot and the basic residential character of the area had not changed into non-residential one. The above case is thus distinguishable on facts thereof.
60. On the other hand, the learned counsel for the plaintiffs relied on the following cases:---
(i) Hussain A.I v. Ahmed Bux 1992 MLD 2000;
(ii) Wazir A.I and others v. Hanif 1989 MLD 1966;
(iii) Karachi Building Control Authority v. Sufi Muhammad Ismail and others 1989 MLD 2987 and
(iv) R.G. Sehwani Cooperative Housing Society v. Haji Ahmed and 3 others PLD 1983 Kar. 11.
61. It is not necessary to go into details of the said cases, suffice to point out that in the last case Justice Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court), has observed at page 22 of the report as under:--- It is, therefore, clear that with the passage of time the localities which were exclusively for residential purposes under the pressure of human need are being converted into commercial use with the consent and approval of K.M.C. And the relevant authorities. The entire complex of this area has completely undergone a phenominal change. Previously there were bungalows but they have been replaced by multistoreyed buildings or such buildings in which the ground floor has been converted for commercial use. Taking into consideration these facts and to keep pace with the time and to meet the needs and requirements of the locality K.M.C. Has been granting permission to construct multistoreyed buildings and commercialise the area."
62. Under the above circumstances it is neither just nor reasonable to exercise equitable discretion in favour of the plaintiffs.
63. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the trial.
64. Costs shall follow the cause.
65. AA./A-1484/KInjunction refused.