P L D 2009 Karachi 58 (PLP)

NADEEM AZHAR SIDDIQI, J.

The plaintiff Khaista Khan, is running a hydrant on his industrial plot bearing Naclass No.1, measuring 420 sq. years, situated in Deh Orangi, Tapo Manghopir, Karachi. He alleges that he has obtained N.O.C. for establishing such water hydrant from Deputy Commissioner. Karachi West, bearing No.DCW/PA/ Hydrant/047/2001 dated 10-5-2001 which was subsequently renewed by the District Officer Revenue on 20-8-2002. It is alleged that on 12-8-2007 defendants Nos.1, 2 and 3 came to the hydrant of the plaintiff and tried to dismantle it but due to plaintiff's intervention, the said defendants were unable to do so. On 13-8-2007 the plaintiff approached the said defendants who allegedly asked for bribe which was refused. Hence, the plaintiff through his attorney Muhammad Jan Afridi, filed the present suit.

2. On 9-10-2007 inter alia following order was passed by a learned Single Judge of this Court: "It may be noted that apparently the suit of the plaintiff seems to be not maintainable for the reason that he holds no subsisting legal authority to operate hydrant. The counsel for the plaintiff is therefore put on notice to satisfy the Court about maintainability of the suit."

3. Counter affidavits have been filed by Defendants Nos.1 and 2 and

4. In their counter affidavits the defendants state that the plaintiff is illegally running a hydrant.

4. The learned counsel for the plaintiff submits that the suit is maintainable as the fundamental rights of the plaintiff were infringed by not allowing him to run his hydrant. He submits that under the laws the plaintiff is not required to obtain any N.O.C. from any agency. He then submits that if one prayer is maintainable the plaint can not be rejected. He then submits that the suit has been filed for the reason that defendant No.1 has refused to renew the N.O.C. issued to the plaintiff. He referred to the N.O.C. dated 24-10-2007 obtained by the plaintiff from Town Municipal Administrator Gadap during pendency of suit.

5. Mr. Tassawur Hussain, the learned counsel for the defendant No.1 has referred to clause 3 of Notification dated 12-2-1981 and submits that no hydrant can be established and maintained except in accordance with the previsions of these bye-laws. He submits that the plaintiffs has no valid N.O.C. and can not maintain and run the hydrant.

6. Mr. Shafi Muhammadi, learned counsel for defendants Nos.2 and 4 states that the said defendants have no concern with the hydrant. He then submits that the purpose of lease is commercial and no hydrant can be maintained.

7. The learned A.A-G. has adopted the arguments of the learned counsel for the defendants. He additionally submits that a licence for six months for maintaining the hydrant was granted and after its expiry the plaintiff has no right to maintain the illegal hydrant and by not allowing the plaintiff to maintain and run an illegal hydrant no right of the plaintiff was violated.

8. The TMO was also called in person who states that Town Officer (Finance) cannot receive any amount and Town Officer (Regularization) cannot issue N.O.C. for maintaining and running hydrant without permission of Town Nazim.

9. In rebuttal, Mr. Mirza Sarfraz Ahmed, learned counsel for the plaintiff, states that after promulgation of Sindh Local Government Ordinance 2001 the notification stood repealed and presently no N.O.C. is required to run and maintain a hydrant.

10. This is an admitted position that the plaintiff was granted license on 10-5-2001 by the Deputy Commissioner to run and maintain a hydrant for six months subject to the issuance of N.O.C. by KMC, Health Department. It is also an admitted position that neither the plaintiff has produced the N.O.C. from Health Department, KMC nor has he produced the renewal after the expiry of the first license. The plaintiff has no right to maintain the hydrant without complying the procedure laid down by the defendant No.1. The Notification produced by the defendant No.1 was not repealed but the same was saved under section 196 of SLGO 1.979. No doubt Article 18 of the Constitution provides freedom of trade, business and profession but the same is subject to law which regulates it. The Article itself provides that State through proper legal means can impose certain qualification and may regulate any trade or profession by licensing system.

11. The plaintiff has filed the suit with the prayer that the defendants have no right, interest or title in the hydrant installed by him. The defendants are not claiming any right, title or interest in the hydrant but their contention is that without proper license and N.O.C. the plaintiff cannot maintain the hydrant. The plaintiff has not produced the license or the N.O.C. The plaintiff can seek declaration to do a legal and lawful business. The plaintiff cannot seek declaration to do a business which he cannot run without proper license or permission from the authorities concerned. The plaintiff has taken contradictory pleas. At the one hand he states that no N.O.C. or permission license is required and on the other hand produced the license from Town Administration Gadap. The plaintiff has not sought any declaration that he is entitled to the renewal of the license issued to him. Since the plaintiff has no license to maintain the hydrant the prayers cannot be granted and no purpose will be served in keeping the suit pending. The prayer clause "B" is not an independent prayer but flows from the main relief, which itself is not maintainable.

12. In view of the above, the plaintiff has no cause of action and the plaint is rejected under Order VII, Rule 11, C.P.C. with no order as to costs. M.B.A./K-28/K Plaint rejected.