MUSHIR ALAM, J.--- Plaintiff is a registered association under the Societies Registration Act and has filed the instant suit in a Representative capacity through its General Secretary namely Sabir Pervez seeking declaration against the erection of the advertisements boards on pedestrian payments in font of ' Clifton Centre', being illegal, for cancellation of permission/license. For erecting such boards in the vicinity and consequential relief of permanent injunction to the above effect. In the suit, the plaintiff has filed an application i.e. CMA No. 2606/2002 under Order 39, Rules 1 and 2, CPC seeking interim relief against the defendants in above terms.
Ad-interim orders were passed on 11.4.2002. In addition to defendant No. 3 has also filed an application i.e. CMA No. 2823/2002 under Order 39, Rule 3(4), CPC seeking vacation of such orders.
On 31.5.2002, C.M.A. No 2823/2002 was fixed seeking for vacation of the ad-interim orders. By consent, arguments of learned counsel for the parties were heard as well on C.M.A. No. 2606/2002 under Order 39, Rules 1 and 2, CPC.
2. The case of the plaintiff, in brief, as set out in the plaint is that the Clifton wherein the Members of the plaintiff's Association have their respective Offices situated on the right of Schon Circle falls within the Saddar Town Council. Initially, it is stated, few and small advertisement boards appeared on all sides of Schon Circle fixed on pedestrians pavements which activity was objected by the residents of the area. Only Clifton Cantonment Board responded to such objections, hoarding/Bill Boards were regulated and those fixed In front of the building blacking the views were removed and fixed atop ' of buildings. Grievance of the plaintiff is that Saddar Town Council did not pay any heed to such objections, and allowed mashroon growth of such hoardings impeding the view of the offices and commercial establishments thereby effecting the value and utility of the same beside being infringement of easement of necessity. It is stated that after the establishment . Of the defendants Nos. 1 and 3 under the new Local Government Ordinance (XXVII of 2001) unplanned growth is on the rise amounting to degradation of the whole area violating the quality of the life of the residents effecting business of the occupants/owners of the commercial establishments of 1 plaintiffs' members. Through listed application, the plaintiff seeks restraining orders against the installation of a huge hoarding board of approximately 100' x 30" feet affixed in front of the Clifton Centre. Since protest were unheeded. In the were another similar mammoth hoarding was in sight when the plaintiff brought the instant suit.
3. Sadder Town Council, the defendant No. 2. Also filed the counter-affidavit for Itself and defendant No. 1 raising preliminary objections as to maintainability of suit under Sections 42 and 56(d) of the Specific Relief Act. The counter-affidavit of the Union Council almost adopts the factual assertion raised by defendant No. 3. It was pleaded that subject advertisement boards are being installed on Municipal Land, as` such, plaintiff has no legal right to interfere in the function of the official defendants. It was additionally pleaded that the advertisement board of the proposed size is already on display at the FTC intersection.
4. Defendant No 3, M/s. U.B. Advertising, contested the application. In counter-affidavit, it was stated that at their request Saddar Town Cowl', defendant No. 2, granted the permission and Issued the challan in the sum of Rs.3,75,000/- which was paid on 20.3.2002, accordingly they undertook the assignment to install the proposed advertisement work and spent Rs.500,000/- on the foundation and another sum of Rs.12,00,000/- on its designing. It was pleaded that several other hoarding and advertisement boards are installed in the vicinity and no objection has since been raised. It was stated that the defendants are suffering on account of the restraining order. It was also pleaded that the proposed board will beautify the surrounding neither air nor light is hampered.
5. Mr. Abid S. Zubairi, learned counsel for the plaintiff contended that there is a vast difference between the implementation of the Advertisement Policy cf the two civic agencies, one is the managed, control and supervised by the Cantonment Board across the road. Whereas the hoarding and mashroon growth of the advertisement boards are regulated to some extent, as against the area under the management and control of District Government and Town Council established under the Ordinance No. 27 of 2001. Learned counsel pointed out that the Karachi Advertisement and Beautification Authority Ordinance, 1988 was promulgated on 28th June, 1988 providing for development, improvement and beautification of city of Karachi wherein under Section 13 any neon sign hoarding or structure found to be prejudicial to the environmental beauties of any board of the notified area could be removed under the direction of the authority, unfortunately Ordinance lapsed. He contended that under Sindh Local Government Ordinance, 2001 ("SLGO 2001") as per Sections 191 and 192 read with Vth Schedule Item No. 39, the Government enjoys the rules making powers in respect of fixing any bill, notice, play card or other papers or means of advertisement other than the places fixed for the purpose by the Local Government.
According to him, since no bye-laws or rules to the above effect have been framed the executive functionaries have no absolute power to act at their whims and fancy, such powers are to be used for the public good, welfare and in the large interest of the public at large any arbitrary fanciful exercise of such powers are subject to judicial review by this Court. In support of his contention, he has placed reliance on the case-laws reported as (1) Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2882) relevant page at 2290, (2)
Haji Ghulam Zamin and another v. A.B. Khondkar and others (PLD 1965 Dacca 156) relevant page at 165, (3) M.U.A. Khan v. Rana M. Sultan and another (PLD 1974 S.C. 228), (4) Haji Ghulam Sabir v. Pan Allotment Committee and another (PLD 1967 Dacca 607), and (5) Director Food, N.W.F.P. And another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. And 18 others (PLD 2001 S.C. 1) = (2001 PSC/CC 312) relevant at page 5.
6. -Mr. Salahuddin, learned counsel appearing for the official defendant Saddar Town, urged that defendant No. 2 is within its right under law to grant permission for fixation of hoarding. He further questioned the right of the plaintiff to interfere in the function of defendants Nos. 1 and 2. According to him, no injunction under Section 56(d) of the specific Relief Act could be granted as the same amounts to interference in performance of public duties.
7. As against above,. Mr. Abrar Hassan, learned counsel for defendant No. 3 contended that the plaintiffs are not the owner of the land over which subject hoarding is being installed. Neither any easementary nor legal rights are available to the plaintiff. According to the learned counsel, the fixation of the advertisement boards is a prerogative of the Sindh Local Government under SLGO, 2001. Plaintiff cannot be allowed to interfere in its functioning. The activity carried out by the defendants is not environmental degradation on the contrary it is a beautification campaign. In support of his contention, he has relied upon the cases-laws reported as (1) Cawashah Bomanji Parakh v. Prafullah Nath (AIR 1941 Nagpur 364), (2) P.C.E. Paul v. W. Robson (A:R 1914 P.C. 45), (3)
Ushaben v. Bhangyalaxmi Chitra Mandir (AIR 1978 Gujrat 3), and (4) Kausar Musajee v. Niaz Ahmed (2000 SCM R 1823) = (2000 PSC/CC 1724) relevant page at 1826.
8. I have heard the arguments of all the learned counsel for the parties at great length, perused the material available on record and thoroughly examined the case-laws cited at bar.
9 Adverting to the foremost legal objections raised by learned counsel for defendants as regard right of the plaintiffs to maintain suit,' contention of Mr. Abrar Hassan, learned counsel for defendant No. 3 that easementary rights are regulated under the Easement Act. According to him, under Section 4 of the Easements Act, such easementary rights could 'only be enforced provided the same are in continuous `enjoyment for a period of 20 years as against a private person and as against public functionary for over a period of 60 years.. Mr. Abid S. Zubari, learned counsel for the plaintiff reluctantly concedes that it s not only the easementary rights that are being pressed into service, the plaintiffs are pressing in service as to enjoyment of life and property. He was relied upon .a case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others, reported in 1999 SCM R 2883 (popularly known as 'Costal Livina's ease') at page 2904. Apex Court with approval reproduced the following passage from treaties on "Judicial Review of Administrative Action" (Fifth Edition) by de Smith, Woolf and Jowell: "The general approach can be summarized as follows:
(1) Sufficient interest' has to receive a generous interpretation. It has to be treated as a board and flexible test.
(2) Only issues as to standing where the answer is obvious should be resolved on the application for leave. In other cases lack of standing should not prevent leave being granted.
(3) Issues as to standing at the leave stage do not depend on the remedy which is then being claimed.
(4)- If the applicant has a special expertise in the subject-matter of the application that will be a factor in establishing sufficient Interest. This applies whether the applicant- is an individual or some type of association. The fact that the applicant's responsibility in relation to the subject of the application is recognized by statute is a strong indication of sufficient interest.
(5) A great variety of factors are capable of qualifying as sufficient interest: They are not confined to property or financial or other iegal interests. They can include civic (or community) environmental and cultural interests. The interest can be future or contingent.
(6) The gravity of the issue which is the subject of the application is a factor taken into account in determining the outcome of questions of standing. The more serious the issue at stake the less significance will be attached to arguments based on the applicant's alleged lack of standing.
(7) In deciding what, if any, remedy to grant as a matter of discretion, the Court will take into account the extent of the applicant's interest. At this stage different remedies may require a different involvement by the applicant."
The above-quoted passaged from the well-known treaties indicates that the concept of locus standi has been whittled down inasmuch as the expression 'sufficient interest', inter alia, includes civic or (community) environmental and cultural interest.
10. The rights of life, property and business is guaranteed under the Constitution, such rights can be enforced through Court of law. SLGO, 2001 and all other laws relating to the Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making. Such public functions and duties conferred on the functionaries of the District Government are to be exercised for the betterment of the Society at large. Under Section 54(g) of SLGO the District Municipal Administration besides other functions enumerated therein, is also required to regulate affixing of signboard and advertisement. Such powers and functions are to be exercised in consonance with the rules making power in terms of Sections 191 and 192 of the Ordinance thereof.
Though the learned counsel argued that, since no rules or byelaws framed are under the Ordinance. According to him, even in absence of such bye-laws or rules the Executive functionaries are to discharge their function in accordance with mandate of law Executive functionaries do not enjoy inherent or arbitrar, powers to act at their whims and fancy. Indeed, no rules or byelaws as mandated under the SLGO, 2001 have been framed. However, by virtue of Section 196 thereof, all rules. Regulations, and bye-laws made under the predecessor law so ,far those are not inconsistent with the provisions cf SLGO, 2001 shall continue to be inforce until amended or varied by the competent authority. Mr. Salahuddin, learned counsel; however, states that under the Sindh People's Local Government Ordinance, 1972, Karachi Municipal Corporation (Advertisement) bye-laws, 1978 were enforced and defendant No. 2 is acting in accordance therewith. Section 191 of the Ordinance, 2001 do prescribe limitation for framing such rules, which are as follows:-
(a) consistency with democratic decentralization and subsidiarity;
(b) enhancement of welfare of the people;
(c) fairness and clarity, and
(d) natural justice and due process of law.
Bye-law No. 7 of the Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978, dated 20.5.1979 provides as follows:- "(7) (1) No advertisement or advertising device shall be placed in such manner as may cause a traffic hazard on a public street;
(2) No advertisement which is objectionable on social, ethical or moral grounds or is against public policy shall be displayed."
11. From the perusal of the above Bye-laws, it is abundantly clear that the advertisement is to be placed in such manner as it may no cause a traffic problem on a public street. Any advertisement that is objectionable on social, ethical or moral grounds or against public policy shall not be allowed to be displayed. Even sites for such advertisement none sign etc. Are to be earmarked and invitation/offers for such site is to be invited through press. Under bye-laws, the Town Committee could allocate any site without inviting public offer only in case of prior concurrence of Government. In the instant case, there is nothing on record to show that any public offer was invited through press nor there is any material to show that any prior approval of the Government was obtained to allot the subject site without inviting of the public offer. Even at this juncture, for the sake of arguments, It Is presumed that all above acts were carried out in accordance with above- referred Bye-laws then such bye-laws are subject to the limitation as prescribed under Section 191 of the Ordinance, 2004. One of the important requirement is natural justice and due process of law.
By natural justice, it postulates invitation of the objections and hearing of all those persons who may be effected by such permission or fixation of the hoarding or neon sign of the, sizesubject- matter of the instant case. Apparently subject site was allotted without any invitation of offer through press, therefore, hearing of objection admittedly was not given.
12. Perpetual injunction is regulated under Section 54 of the Specific Relief Act, such Injunction may be granted here it is shown that the defendant invades or threatened to 'invade the plaintiffs "right to enjoyment of property". Right to enjoy of property is not simply a right to possess and occupy the property. By enjoyment of the property, it also includes the right to free ingress, egress right to reap benefit. One of the most important right which in this commercial world has acquired a significant importance is right of view or exposure to and from the particular property. More particularly when such property is of a commercial nature. People are more attracted towards the shops and establishment when it is exposed to the general view. Office premises may be more beneficially enjoyed in a Multi-storied Building when it has an over view of scenario land scaping of the city environment. Any invasion or encroachment of such right to enjoy the property were recognized as far back as in the case Campbell v. Mayor, Aldermen, and Councillors of the Metropolitan Borough of Paddington ([1911j 1 King's Bench Division 869). In said case, plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that a public procession of the King's funeral was to pass. Plaintiff let out first and second floors of the house for view of the processions. The Metropolitan Borough erected a stand to accommodate the members of the Council and their friends to view the acessions obstructing the view from the windows on the first floor of the plaintiffs house. Some more perspective viewers refused to hire the premises of the plaintiff on account of such obstruction. Plaintiff brought a clam to recover damages for wrongful interference with the use and enjoyment of the house. Such claim for damages was allowed and maintained by the Appellate Court as well.
13. As far as the objections of learned counsel for the defendants that plaintiff has no right which could be enforced. In my humble opinion, Section 42 of the Specific Reliefs Act do give a right to institute a suit to any person who has "ANY RIGHT AS TO ANY PROPERTY". As discussed above, such right read with ' Right of Enjoyment of a Property' as postulated under Section 54 of the Specific Reliefs Act do give such right to a plaintiff who could establish that the right to view and exposure of his commercial establishment is of some beneficial interest to him. Right to life as has been expounded by the Hon'ble Supreme Court in Shela Zia's case, reported in PLD 1994 SC 693 as approved in ' Costal Livina's case' in 1999 SCM R 2883 that Right to Life is not merely a vegetative living. Likewise, right to property or right to carry on business in a property are also recognized under the Constitution, 1973. Such right to property is not be interpreted in a narrow sense but must be given a boarder perspective and meaning more particularly in present commercial environment where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. Injunctive relief is also obtainable in case of invasion of civil right in the nature of Tort. A person seeking injunction must make out a case of actual or of threatened violation of its right. Reliance of learned counsel (1) Cawashah Bomanji Parakh v. Prafulla Nath (AIR 1941 Nagpur 364), (2) P.C.E. Paul v. W. Robson (AIR 1914 'P.C. 45), (3) Ushaben v. Bhangyalaxmi Chitra Mandir (A(R 1978 Gujrat 13), are of no avail. First two referred cases relates to nuisance and right to light under the Easement Act, last mentioned case relates to construction of building in residential area. Right of enjoyment of a property is independent right and if it is shown that the public functionaries acts 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 properly with all its easement, easement of necessity privileges, benefit both pecuniary and otherwise apartment thereto as discussed above, will have precedence over rights of defendant No. 3, the Advertising Company. The subject Advertisement Board, if allowed to be affixed at the present site in the manner proposed, it will certainly effect the peaceful "enjoyment of the property" by the members of the plaintiffs, therefore, prima facie case and balance of convenience under the circumstances leans in their favour. Under the facts and, circumstances, it is directed that the proposed hoarding or the Advertisement Boards may be affixed at such height and in such manner as may not obstruct the view, vision and elevation of the plaintiffs Commercial establishment. It will be further examined at the trial as to whether the award and allocation of such site if at all were made in accordance with Bye-laws as are claimed to be inforce by the Saddar Town Council, the defendant No. 2. The applications in terms of the above, stands disposed of.