1995 PLP 803 (MLD)

It has neither been averred in the plaint, nor urged by the learned counsel for the plaintiffs that Scheme No.5, within which the plot in question is comprised was sanctioned or notified by the Provincial Government. The above inference that the said Scheme was so made and enforced by K.DA. finds support from the fact that the Regulations of 1972 were made and notified by the Authority itself, which regulate the use of the plots, including those of Scheme No.5. The Special Conditions of Zoning mentioned in para. 4 of the Regulations of 1972 are to be read with General Zoning Conditions prescribed in Schedule "A" thereof which are made applicable to all the K.DA. Schemes. Para (f) thereof reads as under:‑‑‑ "(f) Plots allotted or auctioned for residential, commercial, industrial, amenities and multistoreyed flats shall be exclusively used for the purpose they are meant as per terms and conditions of allotments or auction unless the conversion of the use is allowed by KD.A." (Underlined to supply emphasis; here in italics). On the mere reading of the aforesaid clause it is clear that the Authority has reserved the power of conversion of use to itself, the Scheme having been framed by it. It was in exercise of the powers conferred on the Authority that it took the decision permitting commercialisation in as many as fifteen areas or Zonal Schemes of the Karachi Division, by its Resolution No.220, which is being rightly described by the plaintiffs as general policy in para. 5 and policy in para. 6 of the plaint and as Policy Decision by the learned Governor. The above decision was also approved by the then Governor and the Provincial Government, as has been confirmed by the learned Governor. The learned counsel for the plaintiff, however, submitted that the above decision will come into force only when it is published as required by Article 16 of Order of 1957 in the official Gazette. The submission is devoid of any force, firstly for the reason that the above Article requires prior publication of only the Rules and Regulations framed by the Authority and not all the decisions or orders made by it, secondly, the Authority having framed the Regulations of 1972 reserving to itself the authority to grant conversion of use of land, which were published as prescribed by law, it was not required to publish decisions taken in exercise of the said power, thirdly, the order dated 25‑4‑1984, passed on the applications of the plaintiffs and others by the then Governor was found by the Hon'ble Supreme Court to be an interim order and with the consent of all the Advocates appearing for the parties, including the Advocate for the plaintiffs, the matter was remanded to the Governor for final disposal, who maintained order, dated 21‑4‑1984. The above proceedings were under Article 40 of the Order of 1957. The plaintiffs' application was one under clause (5) of the said Article for revision of the order dated 21‑4‑1984, passed by the Authority and was disposed of by the Governor under the said provisions and accordingly under clause (5) the above decision became final. Such decision of the Governor does not require publication in the Gazette. Additionally the above policy decision having been approved by the Provincial Government, the said Article does not come in the way of its enforceability. No provisions have been pointed out in the aforesaid Order of 1957 requiring previous publication of the Policy Decision or the order of the above nature passed by the Provincial Government. In view of the above, prima facie, no exception can be taken to the legality of the order permitting conversion of the use of the plot in question. The learned counsel for defendant No.3 contended that the above issue stands finally resolved in the previous litigation. The case was remanded to the Provincial Government for passing final order with the consent of all the parties including the learned counsel for the plaintiffs. It appears from the order gassed by the Governor that Mr. Naeemur Rahman, who appeared before him on behalf of the plaintiffs, had taken the stand and so also by the plaintiffs in their personal communication that they had not consented to passing of the above order by the Hon'ble Supreme Court. The learned Governor had, therefore, observed that although an opportunity was given to the said learned counsel to move the Supreme Court to get the aforesaid error rectified by the Supreme Court but the above opportunity was not availed. As the things stand, it appears that it was a consent order by which the case was remanded to the Governor. However, in view of the above observations, it is not necessary to decide the question of res judicata, at this interlocutory stage. It has been found that the commercialisation of the plot is prima facie in accordance with law. There is no plea that defendant No.3 is raising construction without approved plans. The only point urged by Mr. Naeemur Rahman in this regard is that the plans were got approved from the Karachi Building Control Authority, whereas the area where the plot is situated, now stands transferred, for municipal purposes, to the Cantonment Board and, therefore, the said approved plans have become redundant. Mr. Mubarak Hussain Siddiqui pointed out that after transfer of the area, the said defendant has got the plans approved from the Cantonment Board also. The above submission was not controverted by the learned Advocate for the plaintiffs. The application under consideration has been filed seeking interim injunction, for restraining defendant No.3 from raising multistorey building on the plot and the first two defendants from commercialising the plot without hearing as required under Article 40 of the Order of 1957. As the plot was commercialised before institution of the suit, the second prayer is infructuous. Now the question arises whether the plaintiffs, in the facts and circumstances of the case, are entitled to grant of injunction and will it be just and reasonable to restrain defendant No.3 from constructing building in accordance with law. Injunction is a discretionary relief. As a rule discretion is to be exercised in accordance with reason and sound judicial principles. The Court while dealing with an application for grant of temporary injunction has to look to and assess all the circumstances of obtaining in a suit and moreso, as such is an equitable relief. An injunction is to be issued in aid of equity and justice. The Court has to scrutinise and analyse the conduct of the plaintiffs to assess their entitlement to grant of such relief and look to the reasonableness of the orders sought. For grant of such relief the plaintiffs have to establish a strong prima facie case. The plaint must reveal as to in what manner the alleged wrong would perpetuate itself against the alleged right of the plaintiffs. They have to show that the balance of convenience is on their side. They have also to display, that they would suffer irreparable injury, unless the injunction sought is granted. It is not the case of the plaintiffs that defendant No.3 should not be permitted to raise any construction whatsoever on the plot in dispute. Their case is that the said defendant may not be allowed to raise multistorey building. No statutory definition of the term Multistorey building was pointed out. It may mean two storeys or more. The plaintiffs have not disclosed their perception of the term "multi storey building" or of the number of the storeys that can be legally raised by defendant No.3 or for which the plans have been approved, or the number of storeys the said defendant may or may not be permitted to raise. The prayer made in the application thus suffers from vagueness and it would be against the norms of justice to grant the same. The plaintiffs' case, as revealed in the plaint, in brief is that pursuant to commercialisation policy a number of commercial buildings have been created in the area in question, that the plaintiffs had resisted the Constitutional petition not only on the grounds of "lack of privacy but also on the grounds of over population, traffic hazards and congestion, smoky and polluted atmosphere, creation of terrible sanitary conditions and breakdown of essential services. The cause of action is projected in para No.15 of the plaint as under:‑‑‑ "

15. That it is submitted that cause of action arose in commercialising properties in other parts of Karachi generally and particularly in the Clifton Area which since has resulted in overpopulation and public nuisances of traffic hazards and congestion, smoky and polluted environment, terrible sanitary conditions, frequent breakdown of electricity, gas, telephone and supply of water to say nothing of the traffic hazards and is continuing ever since." The above recitals show that the public nuisances have already surfaced. It is not alleged that in case the multistorey building is raised by defendant No.3, it will add to or intensify the said public nuisances, least to say of absence of material facts that could show as to in what manner the building, if raised, would add to those problems. It is not a case, for stopping the entire construction process in the Clifton area. It may be pointed out that the things would have been different if the building in question would have been the first multistorey or commercial building in the Clifton area, but at this stage when the plaintiffs have remained silent spectators and have allowed several buildings to be raised, completed and utilised, they cannot be heard to say that construction of this particular building would add to the public nuisances, although they have not gone even so far as to say this specifically. The plaint does not show that the plaintiffs ever took any steps, except in respect of two buildings, one being the building in question to resist construction of the buildings, which have been constructed from 1982 onwards and have resulted in creation of the alleged evils, the public nuisances, that have polluted the environment and allegedly affected the utility services. It is legal maxim that a person cannot complain of an act, he passively assents to Volenti non fit injuria. Reliance is placed on the case of Ali Nawaz Gardezi v. Lt.‑Col. Muhammad Yusuf PLD 1963 SC

51. As far as the question of privacy is concerned, it has been specifically stated by the learned Advocate for defendant No.3 that his client will not make any openings towards the plot owned by the plaintiffs Abdul Razzak Adamjee and Abdul Hameed Adamjee. It is also so stated in the permission granted for commercialisation that no opening of any kind shall be allowed towards Plot No.G‑

6. The other ground is that the construction of the building would lead to traffic hazard and congestion, smoky and pollutive environment, creation of terrible sanitary conditions, breakdown of essential services like electricity, gas, telephone and considerable reduction of water. The traffic hazards, over parking, smoky and polluted environment are related to the plying of the private and public vehicles in the area. The Clifton roads are used not only by the residents of the Clifton but by all the citizens including residents of nearby locations and unauthorised colonies in the area. The alleged public nuisances or the matters concerning public services, are not prima facie relatable to the construction of the proposed building. It may be observed that the first two defendants in their written statement, which has been relied upon in their counter‑affidavit, have specifically stated that before commercialisation of the plots all the relevant facts were duly considered by the competent authority and that the permission was granted in the greater interest of general public. It appears that according to the plaintiffs it is the building proposed to be raised by defendant No.3 that would create those problems and in case the building is not constructed, neither there will be any traffic hazards, congestion, smoky and polluted environment nor the problems of sanitation and break down of essential services will occur. Such approach prima facie does not appear to be reasonable. The plaint does not disclose the necessary details that have resulted in creation of the alleged public nuisances. Only general and sweeping allegations have been made without specifying or disclosing as to in what manner, the so called multistorey building to be constructed by defendant No.3 would result into the alleged nuisances or aggravation or extent thereof for consideration of reasonableness of the relief sought. In the absence of the necessary material, it is not possible at this stage to say that the construction of multistorey building would result into creation or aggravation of the so‑called public nuisances and other alleged problems. The plaintiffs have failed to establish prima facie case and have yet to place requisite material before the Court, in evidence, to establish the above allegations. No injunction can be granted to prevent, on the ground of nuisance, an act, of which it is not reasonably clear that it will be a nuisance. It is also settled law that it is not sufficient reason for the purpose of issuing a temporary injunction that the suit would be infructuous if it did not issue. Reference may be made to the case of Shahid Cold Agency v. The Chairman, Pakistan Railways and another PLD 1982 Quetta 134, wherein reliance has been placed on the case of N.W. Railway v. N.W. Railways' Union, Lahore AIR 1933 Lah.

203. While considering injunction application, the conduct of the plaintiffs is a relevant factor. The plaintiffs knew about the policy of commercialisation of the plots in Clifton and elsewhere but they did not challenge the said policy at any stage, until No‑Objection Certificate was granted to defendant No.3, when they objected to grant of the said Certificate. The averments in the plaint have been made in a manner as if the plaintiffs had challenged the commercialisation of the Clifton area as such, but defendants Nos.l and 2 in their written statements have stated that their objection did not relate to commercialisation of entire Clifton area but only to Plot No.7. The copies of letters, dated 24th and 25th April, 19s4, written by the plaintiffs respectively and placed on record with the plaint, also confirm the submission that their objections related only to the plot in suit. During the course of the arguments reliance was placed on the judgment in High Court Appeals No s.55 and 58 of 1991. The above appeals arise from Suit No.570 of 1988, filed by the plaintiffs against M/s. Datari Construction Company (Pvt.) Limited. In that suit also relief was sought against a plot owned by that company on the similar general and sweeping allegations, as in the present suit. The suit was dismissed but no appeal was filed by the plaintiffs, although one was filed by some other residents of the area, which was dismissed. The above facts reveal that the plaintiffs were not interested in seeking such relief against the commercialisation of the entire Clifton area.. Their interest has been limited to the plot in suit and that of the above company only. The Constitutional petition filed by defendant No.3 was allowed on 6‑3‑1986, The plaintiffs did not challenge the order passed in the aforesaid petition. The appeal was filed against the said judgment by the first two defendants and since the plaintiffs were party in the above petition, they were joined as respondents. The present suit was instituted by them on 19‑1‑1987. The above reveals the extent of their interest even in seeking relief against the plot in dispute. The learned counsel for the plaintiffs has relied on Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others PLD 1993 Kar. 631, wherein injunction was granted restraining, the defendant from opening school in purely residential area on the ground that it would create nuisance for the residents of the area. The injunction was granted, as it was found that the area was purely residential, material facts and specific particulars were pleaded and material was placed before the Court to demonstrate ,that if a school is established on the premises, it would create the apprehended nuisance. It was also found that the school was being established in violation of the negative covenants incorporated in the lease of the plot and the basic residential character of the area had not changed into non‑residential one. The above case is thus distinguishable on facts thereof. On the other hand, the learned counsel for the plaintiffs relied on the following cases:‑‑‑ (i) Hussain Ali v. Ahmed Bux 1992 MLD 2000; (ii) Wazir Ali and others v. Hanif 1989 MLD 1966; (iii) Karachi Building Control Authority v. Sufi Muhammad Ismail and others 1989 MLD 2987 and (iv) R.G. Sehwani Cooperative Housing Society v. Haji Ahmed and 3 others PLD 1983 Kar.

11. It is not necessary to go into details of the said cases, suffice to point out that in the last case Justice Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court), has observed at page 22 of the report as under:‑‑‑ "

It is, therefore, clear that with the passage of time the localities which were exclusively for residential purposes under the pressure of human need are being converted into commercial use with the consent and approval of K.M.C. and the relevant authorities. The entire complex of this area has completely undergone a phenominal change. Previously there were bungalows but they have been replaced by multistoreyed buildings or such buildings in which the ground floor has been converted for commercial use. Taking into consideration these facts and to keep pace with the time and to meet the needs and requirements of the locality K.M.C. has been granting permission to construct multistoreyed buildings and commercialise the area." Under the above circumstances it is neither just nor reasonable to exercise equitable discretion in favour of the plaintiffs. The application is dismissed accordingly. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the trial. Costs shall follow the cause. AA./A‑1484/K Injunction refused.