1. In this suit for permanent injunction, declaration and cancellation. An application under Order XXXIX, Rule 1 & 2, C.P.0 being C.M.A. No,7656 of 2002 has been filed by the plaintiff, inter alia seeking restraining orders against the defendants from erecting/allotting, letting out any site/space to any person for the display/view of the sign-boards advertisement hoardings on the pavements or any other place at the Schon Circle or on the side lanes and further restraining orders are sought against the defendants from awarding any new contract. Counter-affidavits and rejoinder to the listed application were filed by the parties. Case of the plaintiff as set out is that the plaintiff's members are carrying on business at Dollawala Center. Plaintiff claims that earlier at Schon Circle. Placard, hoardings and sign-board were fixed on the roof top of the building and otherwise in a manner not blocking the view of the occupant of the office in the building situated on Eastern side of the Schon Circle, which practice in terms of the advertisement policy was being followed by the Clifton Cantonment Board. He submits that all of a sudden on 31-10-2002 plaintiff's members witnessed huge advertisement board coming up just in front of the building known as Dollawala Center, which action has been impugned through instant suit and the listed application seeks interim orders in terms already stated in the narrative above. It was contended by Mr. Abid S. Zubari that, such exercise is being carried out in utter violation of rights of plaintiff members, beside being in negation of Rules and Regulations of the Cantonment Board and so also against the advertisement policy as is in force, is a mala fide act. He contends that act of erecting mammoth hoarding is action in tort and is sought to be restrained. According to him, all the citizens in terms of the Article 4 of the Constitution of Pakistan are to be treated in accordance with law. All citizens of Pakistan are entitled by the protection of their right to life, dignity and enjoyment of property. In support of his contention he has placed reliance on (1) Pacific Multinational (Pvt.) Ltd., v. I.-G. Police (PLD 1992 Karachi 283), (2) Dada Bhoy Investment (Pvt.) Ltd. v.
2. Federation of Pakistan (PLD 1995 Karachi 33), (3) Government of Sindh v. Abbas Ahmed (1994 SCMR 923), (4) Pakistan SCS (Pvt.) v. Trustees of Port of Karachi (PLD 2001 Karachi 30), and (5) Messrs. Arif Builders and Developers v. Government of Pakistan and 4 others (PLD 1997 Karachi 627). As against this Mr.Nazar Hussain Dhoon, learned counsel for the Clifton Cantonment Board raised objections as to the maintainability of the suit in view of the bar under section 273(1) of the Caronment Act, 1924 and secondly that, the suit is barred by limitation in terms of 273(3) IBID. According to him the plaintiff's suit is based on public nuisance no permission from the Advocate General has been obtained. On merits he contends that defendants Nos. 4 and 5 acquired the licence for the installation of the subject board which board was however, removed by the Cantonment Board considering it to be unauthorized. However, in a Petition No,1891 of 1991 filed by the defendants Nos. 4 and 5 the Board entered into a compromise and allowed them to erect such board, which is in accordance with law. According to him there is no change effecting the amenities of easement, therefore, no public notice was called for. He submits that action of the Board is strictly in accordance with law and in compliance with the direction given by this Court in terms of the compromise entered between the parties in writ petition. In support of the his contention he has placed reliance on (1) Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another (1992 CLC Karachi 2540), (2) Syed Hussain Ali v. Ahmed Bux (1992 MLD Karachi 2000). (3) Messrs. Business Computing International (Pvt.) Ltd. v. IBM World Trade Corporation [1997 CLC Karachi 1936 (Relevant Page 1950)], (4) Min Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223), (5) Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others [PLD 1993 SC 341 (Relevant Page at 358)], (6)
3. Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512), (7) Multiline Associates v. Ardeshir Cowasjee and 2 others [PLD 1995 SC 423 (Relevant Page at 427)], and (8)
4. Messrs. Airport Support Services v. The Airport. Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268). Mr. Abid S. Zubari exercising right of rebuttal submits that the compromise entered into between the parties cannot be allowed to circumvent the law and even if such compromise is entered it is merely a contract between the parties and the endorsement of the Court will not give any sanctity.
5. To support such preposition. He has placed reliance on (1) Zafar Ahmad and 5 others v..
6. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others (1994 MLD Lahore 1612), (2) Syed Badrud-ud-Din and 10 others v. Government of N.-W.F.P. Through Agri.
7. Forest & Co-op, Peshawar and 11 others (PLD 1994 SC 345), and (3) Muhammad Idrees v. Collector of Customs and others (PLD 2002 Karachi 60). Mr. Khawaja Naveed Ahmed, appearing for the defendants Nos. 4 and 5 contends that the defendants contracted the installation of the hoarding in the year 1991, however, the Cantonment Board unilaterally dismantle the board even in violation of the orders of the Court same board were restored pursuant to a compromise entered into between the parties in C.P. No,1891 of 1999 and the present installation of the board is not a new act it is a restoration of the contract in terms of the compromise. I have heard the arguments and perused the record. Adverting to the first objection as to the jurisdiction and bar of limitation raised by Mr. Nazar Hussain Dhoon, learned Counsel for the Cantonment Board, in terms of section 273 of the Cantonment Act, which bars the suit against the act done in purported exercise of the power and jurisdiction vested in the Board, further the bar of limitation is extended in terms of subsection (3) to section 273 in cases where the suit is otherwise found maintainable. Such action if at all maintainable are to be filed within 6 months from the date of cause of action. Taking first limb of the arguments as to absolute bar of the suit. I had occasion to examine similar objection in a Suit No,131 of 2001 Khalid and Co. v. Cantonment Board (unreported) relying on the case of Muhammad Ilyas Hussain (PLD 1976 SC 785), it was held as follows: "Courts are sanctuaries of justice are not to be persuaded by the technicalities and wherever possible and circumstances so require act in the aid of justice and adopts such interpretation or mould relief that may serve the cause of justice and suppress the mischief. Technicalities cannot be allowed to be used to frustrate such cause. Jurisdictions are guarded jealously by the Court.
8. Ouster or barring clauses are to be strictly construed. In the very provision under subsection (4) to section 273, it is postulated that suit of injunction is very much maintainable even without notice and provision of subsection (1) to section 273 are not attracted in case where the claim is for injunction. Reason being obvious, as spelt out from the very provision, by issuance of such notice the object would be defeated. Where, there are several reliefs claimed then the Courts always lean in favour of extending such relief if permissible under the law. In the instant case, the plaintiff as stated above, has spelt out the relief for declaration and the injunction separately as well as is reflective from the valuation clause mentioned above, where the relief claimed is separable and if any of the relief for any reason is barred and cannot be granted then the Court lean in favour of the relief, which can be extended or granted to suppress mischief and redress a wrong. The Court is also clothed with jurisdiction to order for separate trial of a distinct relief and/or cause. Even if, it is presumed for a moment, the suit for declaration is not maintainable then also the relief of injunction cannot be denied merely because the declaration at this particular moment cannot be extended to the plaintiff. Such declaration, even otherwise, can only be extended after the conclusion of trial and recording of the evidence. Relief of injunction at interlocutory stage is governed on different consideration. Where the Court is only required to see the prima facie case is made out. Balance of convenience and so also irreparable loss to a party." As far as Limitation in terms of subsection (3) to section 273 of the Cantonment Act is concerned, suffice to say that apparently the contract or licence for the fixation of the board was issued in 1996. Fact remains that same was removed by the Cantonment Board and purportedly allowed to be reinstalled as a result of compromise between said parties. It may be observed that the plaintiff was neither party to said proceedings nor to compromise they cannot be said to be aware of what had transpired between the parties. Even otherwise subject board was removed cause, if any, dissipated, therefore, the limitation if any for the purpose of this suit would only commence when the defendants Nos.4 and 5 are said to have undertaken the fixation of the same board again as alleged in the plaint in para 8 thereof, i,e, on 31-10-2002. For the purpose of throwing out the case on the ground of limitation, fact alleged in the plaint prima facie at this juncture are to be taken as true and correct. Plaint was presented on 2-11-2002, it prima facie shows that plaintiffs were prompt in approaching the Court. However, in case the defendants are able to show in evidence that the plaintiffs were aware of the proceedings and or award of the contract then perhaps such objections may be considered at the time of final disposal of the suit, if the circumstances so warrant. Accordingly, at this juncture, for the foregoing reason preliminary objections are not sustainable. Adverting to the merits of the case, the plaintiff grief is against mushroom growth of bill board of abnormal size in the vicinity. Such unplanned hoardings are indeed sour and not a treat to eyes, more particularly when such huge hoarding and board are affixed blocking the view and so also the frontage and elevation of the commercial establishment. According to learned counsel for plaintiffs, such practice not only causing annoyance and discomfort but also blocking the view of the surrounding, not only hindering exposure to and from the office on the front side of the road hampering their view overlooking the city, prejudicially effecting enjoyment of their property impeading business and keeping away the prospective customers/clients. Mr. Dhoon contends that the allegations are nothing but a grievance of public nuisance for which "no objection" from the Advocate General is condition precedent such not having been obtained suit is liable to be thrown out from the Court.
9. What act constitute a public nuisance are not defined under the Code of Civil Procedure. Nuisance cannot be defined exactly .And exhaustively, all definitions are merely illustrative, it is premise on large number of variables. Causes -keep on adding with emergence of new and complex inter personal relationship between person to person and person to society. Nuisance amounts to interference with the person's use or enjoyment of his property or any right appurtenant thereto, a tortious act. It is defined in Black's Law Dictionary as: "That activity which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right of another, or to the public and producing such material annoyance, inconvenience and discomfort that law will presume resulting damages. That which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him, smoke, odour noise, vibration." An act at the same time can be both, public or private nuisance, public because it effects adversely many person or community at large and private in the sense that it also entails special damages or injury to private and J individual right of one or few. Where an act complained of is both public and private nuisance, then any person effected by such wrong or nuisance may bring an action without permission of Advocate-General. In this complex society, where people interact with each other are bound to over step and encroach upon others rights. Scope of activity is widening and producing corresponding rights, obligations and duties. With changing environment one is discovering new meaning to rights, obligations and duties, same are to be regarded and respected in accordance with the prevailing situation and ground realities. Tinder the Easement Act one may find that easement as to light and air were acknowledged and regulated by the framers of Easement Act, 1882 but at that time did not visualize the right to view and sight, such rights emanates from the "Right as to any Property" and "Right of Enjoyment of a Property". Such right is equally important and valuable right attached to a person's property. In this commercial world no one can deny the importance of advertisement which is an effective medium L of approaching consumer and public-at-large towards product and service of commercial organization but, such right cannot be extended to an extent where it encroaches upon the rights of another person. Where there is conflict of right then a balance has to be struck between two rival rights, nobody can be allowed to fix a board or neon sign just next to the window or door of any person's private property. When there is conflict of two private rights then the right which emerged and existed first is to be respected and preferred. Importance of advertisement through media and various other sources including through hoarding, bill board on road side over and above the building cannot be denied. It necessitated to be regulated and controlled under law. The "Cantonment Board" in terms of the Cantonment Act, rules and regulation framed thereunder is responsible to regulate such advertisement through hoardings etc. One of the powers conferred on the Board is defined under clauses 18 and 23 of section 282 of the Act. For ready reference same are reproduced as under:--
(18) The regulation of the erection of any enclosure, fence, tent, awning, or other temporary structure of whatsoever material or nature on any land situated within the Cantonment.
(23) The Regulation of the posting of bills and advertisements and of the position, size, shape, or style of name boards, sign boards and sign posts. Mr.Nazar Hussain Dhoon, contended that in terms of earlier policy the licence to the plaintiff was granted on 5-9-1996. He has placed on record copy of such licence as Annexure-A to the Counter affidavit, which authorized the fixation of the board not more than 48 x 12 feet for a period up to 30-6-2001 in said licence no other condition regulating the place or manner of fixing the hoarding has been prescribed except the quantum and manner of payment of the licence fee. However, it appears that Board issued advertisement- installation policy in the year 1999 which to some extent prescribed certain terms and condition of such advertisement. It, inter alia, provides that; Approval will be for one year, residential area, street, lane and small road are to be left free. Advertisement sign of uniform size from 4 x 4 feet up to maximum '20 x 40' feet are permissible, the height to be minimum 10 feet from the ground. Such boards to be fixed on the specified location duly approved. It was further provided that the category-A location which includes Schon Circle will be dispose of through site auction with a minimum reserve price per sq. Ft. Under such policy the sign board must not change the beauty of the area footpath open space etc. Etc. As can be seen even the policy as relied upon by the Cantonment Board itself provides and fixes the maximum size of the hoarding as 20 x 40 feet.
10. However it appears that the defendants in negation of such measurement permissible under the policy, under the terms of a compromise allowed installation of the mammoth hoarding of the measurement of 60 x 20 feet instead of 48 x 12 feet as allowed under the licence purportedly issued on 5-9-1996 even if it could be argued that it was merely a restoration of the earlier licence in terms of the compromise then, such restoration could not have been allowed prima facie for more than it was permissible under its current policy i,e, beyond. 20 x 40 feet. Mr. Nazar Hussain Dhoon attempted to justify such increases in size on account of upcoming hoarding in the other part of the city. It is indeed anomalous, that various civic agencies operate in this cosmopolite city Karachi and all are oblivious of their responsibility and duty casted upon them to at least frame, follow uniform policy in respect of matter of common denomination like advertisement policy. In absence of such uniform policy, dispute and controversy tend to arise giving cause of action on the ground of discrimination. In any case the defendant No,4 cannot be allowed to deviate on such ground against their own policy which only allows maximum board of 20 x 40 feet. A compromise entered into between the parties cannot be allowed to nullify the policy nor, such compromise can be allowed to be enforced if same is found to be in negation of any provision of law. Such compromise, it was rightly contended by the learned counsel for the plaintiffs at the best could he termed as a contract between the consenting party. Such contract would be confined within the parameter as prescribed by law. If it is in deviation then to such an extent it is against the public policy in terms of 23 of the Contract Act same can be struck down by the Court, such proposition is supported by Zafar Ahmad and 5 others v. Government of Pakistan through Secretary, Ministry of Production, Islamabad and 6 others (1994 MLD Lahore 1612) and Muhammad Idrees v. Collector of Customs and others (PLD 2002 Karachi 60). In another Suit No, 433 of 2002 viz., Clifton Center Association v. City District Government, Karachi and another, (PLD 2003 Kar. 477) involving somewhat similar question of facts'and protection of similar right of enjoyment of property but within the perspective of SLGO, 2001, it was held as follows: "Right of enjoyment- of a property is independent right and if it is shown that the public functionaries act in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights are encroached may bring an action against such invasion." In the instant case, the manner in which the hoarding of the magnitude proposed to be installed is certainly to obstruct the view to and from the commercial establishment facing the main road and at the same time it will also be obstructing exposure of the frontage and elevation of their establishment. Defendant No,3, may claim that they too have a right to carry on business cannot be deprived of their right. When there is a clash of rights of two individual and private person then the right that first existed and matured would be preferred over the other. In instant case, it is right to enjoyment of property with all its derivative feature of enjoyment as discussed above, will have precedence of over rights of defendant No,3, the Advertising Company. Under the facts and circumstances, it is directed that the proposed hoarding or the Bill Boards may he affixed at such height in such manner as may not obstruct the view, vision and elevation of the plaintiffs' commercial establishment."
11. In view of the foregoing in this case also, Plaintiffs have made out a prima facie case. If' the subject board is allowed to be installed in the manner proposed, it will indeed in my opinion effect and invade the peaceful "enjoyment of the property" by the constituent of the plaintiffs, prima facie case and balance of cony dice. Is, therefore, under the facts and circumstances in favour confirmation of ad-interim orders. Defendants are directed that the proposed hoarding or the Advertisement Board not more than the size permissible under the Advertisement Policy, 1999 i,e, '20 x 40' may be affixed at such height and in such manner as it may not obstruct the view, vision and elevation of the plaintiffs' commercial establishment. Listed application, in terms set out above, stands disposed of.