1989 PLP 1532 (CLC)

MUHAMMAD AMIR MALIK, J.‑‑Muhammad Shafiq appellant is the allottee/lessee of an industrial plot in Fruit and Vegetable Market in sector I 11/4, Islamabad, under the Capital Development Authority. Respondents 4 to 6 are the allottees/lessees of plots under the Authority as wholesale Commission Agents for fruit and vegetable. The appellant claims to have set up a cold storage in his plot and asserts that respondents 4 to 6 have been allowed to set up/construct cooling rooms (which according to his pleas are mini cold storages) in their basements by the Authority.

2. The appellant filed writ petition with the prayer that a direction be issued to respondents 1 and 2 to take positive action against respondents 4 to 6 for putting the plots to the use for which these were allotted and not to convert the same into industrial units, thereby providing safeguards ,regarding his rights. Further prayer was also made prohibiting the WAPDA from sanctioning a three phase power connection to the commercial plots of respondents 4 to 6.

3. The facts stated in the petition were that a master plan for Fruit and Vegetable Market in the sector had been sanctioned and approved by the Authority. It had only one industrial and many commercial plots for the Commission Agents dealing in fruit and vegetable. The latter category of plots could only be used for commercial purposes, i.e. business of Commission Agents in fruit and vegetable but the same could not be converted to the industrial use of cold storage. Even in the year 1981 a cold storage was sanctioned by the Authority to be set up on the site marked for parking in the market which was challenged in W.P.No.291 of 1981 by the appellant and as a result of compromise the petition was withdrawn but the Authority had withdrawn the sanction of the said cold storage. There being only one industrial plot for cold storage, there was a positive representation that no other cold storage in the market would be allowed or set up and the act of the Authority in allowing the cooling rooms (mini cold storages) had jeopardized the rights of the appellant who had made huge investment on the understanding that he would be the owner of the sole cold storage in the market. In the parawise comments submitted by the Authority it was denied that any representation or promise had been made to the appellant that no other cold storage would be allowed to be set up or sanctioned m the market. It was asserted that no right vested in the appellant nor any was being violated. The. appellant wanted to create a monopoly and his prayer for restraining the other respondents from doing their business if allowed, would amount to a restraint in trade. In the market four other cold had also been allowed. The other respondents had only been allowed to set up cooling rooms and not cold storages. The cooling. rooms in the basements were claimed by respondents 4 to 6 as part of their business where they would be storing fruit and vegetable‑‑perishable commodities‑‑in due course of their business.

4. The learned Single Judge dismissed the writ petition on the ground that there was no representation on behalf of the C.DA. that there would be only one cold storage and no other in the market and thus the appellant had no right which was being infringed by allowing the cooling rooms in the basements of the Commission Agents (respondents 4 to 6) which rooms even otherwise, were subservient to their business.

5. Learned counsel for the appellant has contended that scheme had been sanctioned for the Fruit and Vegetable Market which had only one industrial plot and the same was allotted to the appellant where he had set up the cold storage. Thus, by implication, there was representation on behalf of the C.D.A. that no other cold storage would be allowed in the market. Respondents 4 to 6, as Commission Agents, could not set up cold storages in their basements as it would amount to converting the commercial plots into industrial premises. Acting upon the representation/promise of there being only one cold storage the appellant had invested a huge amount and if the cooling rooms (mini cold storages) were. allowed to be set up by the respondents, his rights would be jeopardized. He referred to Mian Fazal Din v. Lahore Improvement Trust and others PLD 1960 SC 223 to canvass the point that the appellant had locus standi_ He also referred to Union of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806 and Express Newspapers (Pvt.) Ltd. and others v. Union of India and others (1986) 1 SC Cases 133 to develop the dictum of promissory estoppel. In this very connection AIR 1979 SC 621‑ M.P. Sugar Mills v. State of U.P. was also relied upon. In the first mentioned authority it was held by the Supreme Court of Pakistan that where a market place had been earmarked near which the petitioner before their Lordships had purchased a piece of land in the hope, of opening a shop, the subsequent alteration of the scheme depriving the petitioner of the facility he hoped for conferred a sufficiently valuable right to enable him to maintain a writ petition. Of course, if the appellant had been given the understanding, even if by conduct, that his would be the only cold storage m the Fruit and Vegetable Market and acting upon the same he had set up the cold storage, then he would the locus standi to come up with a writ petition. The estoppel or for that matter promissory estoppel would be of avail to him if there. is a finding of fact that representation of the kind pleaded by him and referred to above was made to him by the C.D.A. After having heard the learned counsel for the parties and going through the voluminous record we do not find that any such representation was made. The Authority has denied that any such representation was ever made. In the lease deed (Annexure "B") executed between the appellant firm and the respondent Authority there is not an iota to indicate that any such representation was made. In the lease deed executed by the Authority in favour of the other respondents it is clearly stipulated that they would use the plots for running the wholesale fruit and vegetable business and not to use the same for a business or purpose not directly subservient or connected therewith. Fruit vegetable admittedly are perishable commodities. If the cooling rooms, which the appellant is insistent to term as mini cold storages, are allowed to be set up, in their basements for the storage of their own vegetable and fruit, then the use of the premises would be subservient to the business of the Commission Agency. According to the comments submitted by the Authority four other cold storages had been set up just near the disputed premises of the present parties to the writ petition/appeal. Mr. Mahboob Ali, Town Planner of the Authority, produced the site plan in Court which clearly showed that four cold storages had been set up just near the premises of the parties to the present appeal. Why after all the appellant is bent upon restraining respondents 4 to 6 from having cooling rooms/mini cold storages in these basements for their local business? The idea perhaps seems to be to create monopoly in the immediate vicinity. Respondents 4 to 6 have also taken the plea that actually the plot had been leased out to the appellant for the manufacture of cold storages and not for setting up of an actual cold storage and thus he himself was breaching the condition of his lease. If we go by the words of the lease deed in his favour there objection to be‑ correct. Anyhow, the learned counsel for the Authority did not say anything, to the effect that the plot had been leased out to the appellant not for the setting, up of a cold storage but for the manufacture of the same. Learned counsel for the respondents have also correctly drawn the attention of the Court to the lease deed executed in favour of respondents where under permission can be granted for the use of the plots for purpose other than that of the wholesale business of fruit and vegetable. Correct reference has also been made to sections 11, 12 and ~A 19 of the Capital Development Authority Ordinance, 1960 to canvass the point that the Authority can prepare any scheme or phased‑scheme and can also amend or modify the same at any time. The final argument raised by the learned counsel for the appellant with reference to section 21 of the Ordinance to the effect that no objections had been invited while making any amendment or modification in the scheme allowing the setting up of the mini cold storages by the respondents is, without any avail to the appellant. Objections under section 21 are relevant to the execution of a scheme in "specified areas'. Specified Areas' has been defined in section 2(p) of the Ordinance while the Central Government may, from time to time, by notification in the official Gazette, declare any part of the 'specified areas to be the site for the, Pakistan Capital under section 3 ibid. Sector 1‑11 is admittedly within the site notified as such for the capital and thus the scheme, i.e. the Fruits and vegetable Market of sector 1‑11/4 cannot be said to be in the specified area.

6. The upshot of the above discussions and conclusions is that there is not force in the appeal which fails and is hereby dismissed. AA./M‑1312/L Appeal dismissed.