C.M.A. No, 404 of 1996: ' Plaintiff public limited companies mainly engaged in the establishment of Power Project in the private sector, in this suit for permanent injunction seek an order against the defendants Government of Sindh, Port Qasim Authority, Private Power and Infrastructure Board and Sabah Shipyard (newly joined defendant) restraining them from interfering with their proprietary interest in respect of a piece of land measuring 4.00 acres situated in Deh Ibrahim Hyderi, taluka and district Malir leased out to them by the Government of Sindh for the establishment of a Power Project and from taking any steps detrimental to their rights and interest in respect of the aforesaid site.
2. Defendant No, 3 is an Agency established by the Government of Pakistan to provide one window facilities for the establishment of Power Project in the private sector depending on various circumstances including the feasibility of the project, availability of funds professional ability to set up such Project, to monitor the grant of permission and provide financial support for such projects on the submission of performance guarantee. This defendant issued a letter of support dated 1-1- 1995 for setting up of 134 Mega Watt Barge Mounted Thermal Power Plant by furnace oil on a fast track basis at Karachi. However, by letter dated 28-1-1996 defendant informed the plaintiffs that a high level meeting was held on 24th January, 1996 to consider problems regarding site being faced by the plaintiffs project and it was prevailed in the meeting by the concerned officials of Government of Sindh that the earlier allotment for lease at Deh Ibrahim Hyderi had been withdrawn upon scrutiny of related record at their end. By the said letter plaintiffs were informed that Chairman, Port Qasim Authority had been advised to allocate a suitable site adjacent to the K.E.S.C.
Bin Qasim Thermal Power Station for their project. Accordingly they were advised to bring a team of experts for taking a quick decision with regard to the site and come in touch with the Chairman P.Q.A. Alongwith representatives of K.E.S.C. As well as defendant No,3 to finalise the site. In consequence of the above situation, defendant No,2, Port Qasim Authority by their letter dated 26- 5-1996 informed the plaintiffs offering allotment of a piece of land measuring 12.38 acres to them for the establishment of Power Project including water surface in Eastern Industrial Zone adjacent to eastern side of intake channel of Pakistan Steel on terms and conditions mentioned therein. With reference to defence No,2's letter, dated 11th May, 1996 by letter dated 15-5-1996 plaintiffs addressed the Port Qasim Authority making payment of Rs,37,14,000 (Rupees thirty seven lacs and fourteen thousand) and asked for the issuance of a letter of allotment and execution of agreement to lease in order to cope the changed situation. By legal notice, dated 30th July, 1996 plaintiffs informed the defendant No,3 that they had changed the design of their barges to suit the new site but the claim of the plaintiffs in that they were forced and compelled to accept the alternate site and they would very much like to choose either of the two sites to establish the power project which was undertaken by them after the issuances of letter of support.
3. In support of the C.M.A, it is urged at the Bar that notwithstanding the acceptance of alternate pieces of land from Port Qasim Authority, plaintiffs have neither waived not surrendered their right to establish the Power Project on the original site leased out to them by the Government of Sindh for a period of 30 years and that defendants cannot lawfully interfere with their right to deal with the said site as the lease in their favour has not been cancelled/withdrawn by the Government of Sindh.
4. On the other hand, with reference to counter-affidavit filed on behalf of defendant No,4 it is pointed out that even the Government of Sindh in the initial letter dated 3-8-1994 Annexture '9' to the plaint addressed to Deputy Commissioner, Malir had clarified that they had agreed to lease a piece of land measuring 4 acres subject to availability and since it was subsequently found that in fact the earlier site did not belong to the Government of Sindh and actually vested in Port Qasim Authority, the Agreement of Lease Annexure '16' to the plaint dated 26-9-1995 is of no value and utility. Besides by letter dated 27-2-1996 Annexure '14' requesting for a meeting with the said defendant at any time between 6th March and 11th March, 1996 in presence of representatives of K.E.S.C., Port Qasim Authority, Pakistan State Oil and Pakistan Steel for sorting out their problems with regard to the setting up of the proposed power project. In Schedule I appended to this letter besides mentioning other problems and points for discussion, the plaintiffs clearly stated that in the event "Sabah Shipyard" is not able to reach Financial Close by their committed date or implement their proposed 288 M.W. Power plant at the Korangi Site by 31st May, 1996, Government of Pakistan/defendant No,3 shall provide the plaintiffs the first right of refusal to jointly or severally put up another barge based power plant at the Korangi Site of 134 M.W. Minimum. It is pertinent to point out that in the last paragraph of the letter plaintiff even submitted preliminary power plant lay out for the alternative location encompassing the onshore and offshore area requirements.
5. At the hearing it was mainly urged that the plaintiffs have lease-hold rights in respect of the plot at Korangi Site that they have paid a sum of Rs,2 million to the Government of Sindh by way of lease money and taken several steps for setting up of a barged power plant which was solely to be imported from Singapore by ship and to be tugged to the site after obtaining N.O.C. From Port Qasim Authority and that the allotment of the same piece of land to defendant No,4 is contrary to the contract between the Government of Sindh and the plaintiffs and in gross violation of the provision of law as in the face of a valid and binding lease same piece of land could not be lawfully allotted to the newly joined defendant. It is further urged that in fact the defendants have joined hands to deprive the plaintiffs of their lawful right and interest to set up a Power Plant in the Private Sector for which they had invested a huge amount and taken a number of steps to accomplish the task. With regard to the acceptance of the alternate plot offered by the Port Qasim Authority it is maintained that the plaintiffs had to bow before the whims of defendant No,3 under compulsion and they have neither waived nor abandoned their right to establish the proposed plant on the Korangi site.
6. Adverting to the first contention of the learned counsel it may suffice to say that grant of lease in favour of the plaintiffs on the part of Government of Sindh was subject to availability of land as would be seen in the letter addressed to Deputy Commissioner, Malir by Secretary Land Utilization.
Board of Revenue, Government of Sindh. It is pointed out on behalf of the Port Qasim Authority and the other defendants that in a high level meeting it was divulged that in fact the piece of land leased out in favour of the plaintiffs actually belonged to and vested in Port Qasim Authority for which Government of Sindh had absolutely no authority to grant lease or dispose of in any manner.
The fact remains that the plaintiffs were intimated by defendant No,3 which is a body established by the Government of Pakistan to examine and to monitor the feasibility of establishment of Power Plant as to site and/or other allied matters that the piece of land initially selected for establishment of the Power Plant belonged to Port Qasim Authority who had been advised to allocate an alternate plot of land for the needful. This was followed by the action on the part of the plaintiff who accepted the offer and paid a valuable amount of Rs,37,14,000 being 50% of the occupancy value of the land and even changed the design of the project and barges for setting up the Power Plant on the new site which is more than 300% larger than the earlier site and perhaps situated at a better place near the sea waters. Needless to point out the plaintiffs can only be permitted to set up the power plant on a site selected and approved by defendant No,3 and subject to 'no objection certificate' by Port Qasim Authority who have taken a categorical stand that in fact they have allotted this piece of land alongwith other piece of land to defendant No,4 for setting up a Power Plant. In these circumstances, it is highly difficult to subscribe to the view of the plaintiffs that they are the liberty to set up the Power Plant on either of the sites as the averments in the plaint by themselves are sufficient to indicate that the Power Plant in the private sector can only be established subject to clearance and approval by defendant No,3 and the barges tugged to the site only with the consent and concurrence of the Port Qasim Authority. Admittedly no N.O.C. Has been issued as yet by the Port Qasim Authority in favour of the plaintiffs who may not be able to claim a vested right to set up Power Plant on the earlier site in respect of which defendant No,3 informed them that the lease had been withdrawn. Be that as it may, it does not lie in the hands of the plaintiffs to choose the site of their own and after accepting an alternate site from Port Qasim Authority raised any claim, interest, or title to Korangi Site at their whims. As this piece of land has now been allotted to defendant No,4 but the execution of lease is held up by reason of an interim order passed at the behest of the plaintiffs by this Court, it is not difficult to hold, prima facie, that the plaintiffs have hardly any case for the grant of equitable and discretionary relief of injunction in the given circumstances.
7. As to the balance of convenience in favour of the plaintiffs, in fact it is the balance of inconvenience which must be taken into consideration as defendant No,4 and defendant No,3 shall be put to hardships in case the interim injunction is confirmed. Likewise, the plaintiffs are not likely to suffer irreparable injury as they have already been provided with an alternate piece of land which, in the circumstances, is not less favourable to them in all respects and which by their own conduct they have accepted. At any rate, the claim of the plaintiffs, if any, in relation to their initial investment and other steps taken by them acting on the persuation by the Government of Sindh they may have a remedy against the said defendant before a proper forum and this perhaps not a sufficient and adequate ground for the grant of interim injunction as prayed. C.M.A. Is accordingly dismissed.
C.M.A. No, 2756 of 1997: ' With the decision on the plaintiffs injunction application, this application stands disposed of and no separate order is necessary in the circumstances.