2005 PLP 1895 (YLR)

Statement on behalf of defendant No.4 KBCA signed by Shoaib Ahmed Khan Deputy Controller of Buildings Malir Town has been filed stating therein that the suit area does not fall within the jurisdiction of KBCA as it is situated within the limits of Faisal Cantonment Board. Prayer for deletion of name of defendant No.4 has also been made. Comments have been filed by Cantonment Board/defendant No.10 stating therein that the land in-question is situated within the jurisdiction of Faisal Cantonment Board to which KBCA or City District. Government rules do not apply and under the cantonment law there is no restriction for setting up a second petrol pump at a distance of less than 1 Kilometer. Building plan for the construction of the plot in question in favour of defendant No.8 has already been approved and he is legally entitled to raise construction according to approved plan and one year time has been specified to complete the construction, and in case ad interim injunction remains to continue, the defendant No.8 shall be seriously affected and he will suffer irreparable loss. It has been further stated that Faisal Cantonment Board is the only Municipal Authority to grant or refuse sanction of a building plan within its jurisdiction. Building bye-laws of Faisal Cantonment Board have been published by the Central Government in the year 1995 vide S.R.O. No.305(I)/95, hence the objections of the plaintiff or any other defendant are without justification. Other defendants who arc various departments/agencies have not supported the case of the plaintiff and justified the issue of NOCs in favour of defendants Nos.7 and

8. Rejoinder has been filed on behalf of the plaintiff reiterating the facts as already mentioned in his application for grant of injunction and the affidavit filed in support thereof. I have heard Mr. Raja' Qasit Nawaz for the plaintiff and Mr. Badar Alam for defendant No.9 who have mainly urged that the permission granted to defendant No.8 for relocating his petrol pump at the new site is in violation of the Karachi Buildings Control Authority Rules and Town Planning Regulations. They have placed reliance on Regulation No. 25-11.4 of Karachi Building and. Town Planning Regulations, 2902 which has provided a minimum distance of 1 Kilometer for setting up/installation of a petrol pump on the same side of the road. It has been vehemently urged that the land in-question despite being situated within the cantonment area, it shall be governed by the KBCA Rules and the Town Planning Regulations. It has been further argued that in any case a building plan in such cases is to be approved by the KBCA. It has been further urged vehemently that NOC has been obtained by defendant No.8 through political and bureaucratic int1uence of his relatives and friends and if the petrol pump is allowed to be relocated it shall cause great economical loss to the plaintiff whose business shall be adversely affected. It is urged that right of business is a Constitutional right and the defendant No.8 should not be allowed to interfere with such Constitutional rights of the plaintiff. Apprehension of traffic hazards has also been expressed if the defendant No.8 is allowed to install his petrol pump at the proposed site so near to the petrol pump of the plaintiff. With reference to the Caltex Petrol Pump, it has been stated that it is far away at Star Gate of old Airport having distance of about 1 Kilometer and existing since long back when the KBCA and Town Planning Rules were not in field. With reference to the well-settled principles governed grant or refusal of injunction a large number of rulings have been cited which include (1) PLD 1970 SC 180, (2) PLD 1983 SC 693, (3) 1980 SCMR 588 and (4) 1977 SCMR

220. It has been further argued that injuncti9n can also be granted even if there is an arguable case in favour of the plaintiff. Reliance has also been placed on a number of reported cases which include (1) 1992 CLC 2540 (2) 1988 CLC 362, (3) 1998 MLD 2045 and 2000 YLR 2351. It has been further argued that even if the case does' not fall within the strict four comers of Order XXXIX Rules 1 and 2 still the Court in exercise of inherent powers under section 94 read with section 151, C.P.C. can certainly grant relief by way of temporary injunction or through appointment of receiver to protect the rights of a citizen. Reliance has been placed on the cases reported in PLD 1983 Karachi 303, 1996 CLC 507 and AIR 1962 SC

527. Lastly, it has been urged that the plaintiff while setting up the petrol pump in 1974 had a legitimate expectation that no other petrol pump shall be installed adjacent/nearby to his petrol pump in this connection plaintiff has referred to PLD 1969 SC 223, and PLD 1996 SC

324. The plaintiff claims to have vested right to run business of petrol pump at the existing site and nobody can be allowed to snatch 'such right. In rebuttal Mr. Faisal Kamal learned counsel for the defendant No.7 has argued that proposed petrol pump site of answering defendant falls within the Faisal Cantonment Area where Building Regulations of KBCA or Town Planning Regulations are not applicable. In support of his contention he has placed reliance on the case of Zeeshan Builders 1992 MLD 2259 and Aftabuddin Qureshi 2003 MLD

661. Learned counsel has further contended that rules 25-11.4 of Building Regulations 2002 specifying a minimum distance of 1 kilometer between two petrol pumps on the same side of the road is not applicable in the present case as the rules cited on behalf of the plaintiff are not applicable. He has further contended that petroleum is a Federal subject, which is regulated by Federal laws and rules made thereunder amended from time to time. To set up a petrol pump at a particular site, the relevant rules are "The Pakistan Petroleum (Refining Blending and Marketing) Rules, 1971" and under Notification S.R.O. No. 194 (I)/92, inter alia rule 27 of the above-mentioned Pakistan Petroleum Rules 1971 has been amended to such an extent that sub-rule (2) of the existing Rule 27 has been omitted. Before the amendment of 1992 any person setting up a petrol pump had to fill up "Form No. IV" attached with the said Petroleum Rules, in which, amongst other things, "distance from nearest other company's outlet on same road" was to be mentioned. Now this requirements has been dispensed with as such there is no such legal bar as alleged by the plaintiff or defendant No.9/PSO. He has further argued that under Article 143 of the constitution of 1973 the Federal Laws will prevail over the Provincial statute. So even if the KBCA Rules would have been applicable to Cantonment Area, it would have not prevailed upon the Federal Law. Objection regarding non-joining of Civil Aviation Authority, which has granted plots to the plaintiff as well as defendant No.8 has also been taken. Learned counsel has further urged that NOCs have been issued by all concerned quarters legally and validly for relocation of the petrol pump in -question. Lastly, it is urged that plaintiff has already claimed damages and has quantified his losses and therefore injunction cannot be granted. Mr. Mushtaq A. Memon learned counsel for the defendant No.8 while refuting the claim of the plaintiff for grant of injunction on the basis of applicability of Karachi Building and Town Planning Regulations, 2002 to Cantonment Area has placed reliance on the case-law as reported in 1992 MLD 2259 at page 2267 which reads as follows:- "There is, therefore, no escape from the conclusion that building control within the limits of respondent No.2 is to be regulated under the Cantonments Act, 1924, and the provincial laws on the subject will not be applicable to the buildings erected or intended to be constructed on a plot situated within the territorial limits of the said respondents." Learned counsel has further placed reliance on 1996 CLC 1914 at page 1919 where it has been held that:- "The position that emerges from the above judgment is that the Karachi Building and. Town Planning Regulations, relied upon by petitioners' counsel, being provincial regulations framed by Government of Sindh would not apply to the plot in-question which is admittedly situated in Cantonment Area. " Further reliance has been placed on 2003 MLD 661 at page

663. The rule laid down by the Court is reproduced hereinafter:- "

the area, wherein the plot is located now falls under the territorial limits of Clifton Cantonment Board and as such the provisions of the Sindh Buildings Control Ordinance, will not apply. " Learned counsel has further placed reliance on para. 1-1.3 of Karachi Building and Town Planning Regulations, 2002, which has made it clear that the said Regulations shall apply to the whole. City District of Karachi but shall not apply to cantonment area and the projects of the National Security declared by the Federal Government. Learned counsel has further argued that according to para.21 of the plaint, cause of action is shown to have accrued in the year 2002 whereas the present suit was filed on 24-3-2004, hence delay in such cases disentitles a plaintiff to interim injunction. In this connection learned counsel has placed reliance on the cases reported in PLD 1975 Karachi 464 and PLD 1991 Karachi

252. Learned counsel, has also referred to the letter, dated 5-10-2004 from KBCA addressed to Project Engineer of defendant No.7 that location of proposed petrol pump does not fall within its jurisdiction. On the question of proximity and its effect, learned counsel has referred to the minutes of the meeting of the District Petrol Pump Committee, dated 14-4-2004 to show that the effect of proximity was considered and overruled. Mr. Ashraf Ali Butt learned counsel for defendant No. 10 has argued on the same lines as argued by the learned counsel for the defendants Nos.7 and 8 and stated that the land in-question where the petrol pump of defendants Nos.7 and 8 is going to be installed is situated within the jurisdiction of Faisal Cantonment Board and under the Cantonments Act, 1924 which is still holding field there is no such restriction of minimum distance between the two petrol pumps on the same side of road. I have given due consideration to the arguments of the learned counsel for the parties, the case-law referred by them and the material placed on record. There can be no cavil with the rule laid down in various reports cited by the learned counsel for the plaintiff justifying the grant of injunction in those cases, but the facts and law points involved in the case in hand are quite distinguishable from the facts, of the reported cases. Facts of each case and law involved therein are to be examined on the touchstone of the well-known principles viz. (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. Indeed in certain cases even an arguable case justifies the grant of temporary injunction but it is not the case here. Admittedly the land in-question where the petrol pump is being relocated as well as that on which the petrol pump being run by the plaintiff, is situated within the jurisdiction of Faisal Cantonment and according to the well-settled law as referred to above it is not to be governed by the KBCA Rules or the Town Planning Regulations, 2002. Under the Cantonments Act, 1924 there is no such restriction of the minimum distance, hence the contention of the learned counsel for the plaintiff and defendant No.9 based on such plea appears to be without any force. Indeed, right of business or trade as per law is a guaranteed right under the Constitution of Pakistan but no law has been cited to show that relocation of the petrol pump of defendant No.8 to its proposed site, is in violation of any law and rules. Healthy competition in business is a part of the game and nobody can monopolize to deal in a particular business in a particular area to the exclusion of others without there being any such law forbidding the same which is not the case here. Principle of legitimate expectancy of the future business cannot be made a basis for restraining any other person from doing the said business near the same place or in the proximity in the absence of any law prohibiting the same. No such law has been cited in support of this contention. As a result of discussion made above, I do not find it a case for grant of injunction, as neither there is a prima facie case' in favour of the plaintiff nor the balance of convenience. Plea of irreparable loss is also without any substance. Resultantly, this application is rejected and the interim order passed earlier is vacated. H.B. T./S-120/K Application rejected.