1999 PLP 1634 (YLR)

Nemo for the Remaining Defendants. The plaintiff is a registered trust which has constructed and manages institution of oriental studies known as Jamiaul Arabia Ahsanul Uloom and Jamia Masjid Ahsan on Plot No.St‑5, Block No.2, Gulshen‑e‑Iqbal, Karachi. Adjacent to the said plot, another Plot bearing No.St.5‑A, Block 2, Gulshen‑e -Iqbal, Karachi, hereinafter referred as the subject plot, earmarked in the scheme as a park plot, is used as a playground on account of note‑development thereof by the defendants Nos.6 and 7 into a park. According to the plaintiff, the concerned locality, as per the master lay‑out plan contains reservation of various plots of land for different amenity purposes. In February, 1999, the defendant No.1 is stated to have obtained permission from the Director‑General, Bureau and Supply of Prices defendant No.2, and the Deputy Commissioner, Karachi, East, defendant No.3 for organizing Tuesday and Thursday Bazar at the subject plot. The permission granted by the defendants Nos.2 and 3, as above, has subsequently been modified to be treated as one for holding the Bazar on Thursday only. According to the plaintiff, the area in question has sufficient place earmarked for commercial activities and the permission to use the park plot for holding Thursday Bazar besides being violative of the easementary rights of the plaintiff and the residents of the area, negates the civic amenities guaranteed by law and is contrary to the restrictive covenants prohibiting use of park plot for any other purpose. The plaintiff has sought permanent injunction restraining the defendants from holding Bazar over the said plot and for cancellation of the permission for organizing the Bazar, as above. Alongwith the plaint, this application for interim injunction has been filed for suspension of the permission granted by the defendants Nos.2 and 3 authorising the defendant No.1 to organize Thursday Bazar on Plot No.St‑5A, Block‑2, Gulshen‑e‑Iqbal, Karachi till disposal of the suit. After service of notice, the defendant No. l has put up opposition by filing counter affidavit whereas the learned Assistant Advocate‑General, on behalf of defendants Nos.2 to 5, has appeared to state that the cause of action alleged in the proceedings has accrued against defendant No.1 alone. The other defendants have chosen to remain unrepresented. I have heard the learned counsel representing the plaintiff and the defendant No.1 besides the learned A. A.‑G. The learned counsel for the plaintiff has urged that the official defendants did not have the authority to permit organization of Thursday Bazar over the plot of land earmarked for use as park and the use of amenity plot for commercial activities, even for single day during a week, causes nuisance which needs to be checked. The learned counsel for defendant No. 1 has urged that the suit itself is not maintainable by virtue of section 79 of the Code of Civil Procedure, after transfer of the land in question to the management and control of K.M.C., the prohibition against use of an amenity plot for commercial purposes has ceased to be operative, and, tile plaintiff having not suffered any personal injury cannot agitate grievance on the ground of public nuisance. The law relating to in injunctions, perpetual or mandatory, is contained in sections 54, 55 and 56 of the Specific Relief Act whereunder a plaintiff may pray for appropriate relief to prevent breach of an obligation existing in his or its favour. In an action to prevent violation of prescriptive easementary rights, an applicant is required to establish real or apprehended injury for the reason that another person against whom injunction is sought stands to restraint against enjoyment of his property. The concept of modern city planning, however, contemplates restrictive covenants too as would adversely effect the rights of public particularly those living in the neighbourhood. Such covenants are often incorporated in Municipal Rules regulating development of the city and have, by now, been found enforceable at law. Moreover, in order to avoid ominous environmental pollution and scarcity of civic amenities to citizens, increased care in regulating use and development of land has also become imminent. It is necessary to ensure orderly arrangement of parts of the city in a manner that the provision for re creation, education and other community services with adequate utilities and public services including water supply, sewerage, electricity, gas etc. are ensured in order to guarantee comfortable and hygienic living. The denial of above or other civic facilities often leads to nuisance which needs to be checked. It is equally important to preserve the amenities once provision is made therefore in a housing scheme. This must not be compromised. The need for protection of amenities and the provision therefor has become impending to avoid any phenomenal change of the entire locality which may deprive citizens from the rights which are often misnomerized as facilities. The prayer for injunction in the present case, is mainly based on the right of plaintiff and other residents of the locality to the use of subject plot as park which is one of the recognized amenities in the context of modern city living. The denial of an amenity to citizens amounts to public nuisance which is actionable per se for the reason that it is not based purely on compliance with Municipal Rules but affects rights of numerous people to re‑creation and pollution‑free environments. The right of an individual to enforce statutory obligation for public welfare was recognized in the case of Suleman Mala v. Karachi Building Control Authority reported in 1990 CLC 448 and has consistently been applied ever since. The distinction between a case involving restraint upon right of an individual to use and enjoy his own property from a licence simpliciter granted to a stranger depriving the citizens from enjoyment of their right to recreation has always to be kept in view. In the present case, the plaintiff does not enjoy any proprietary or vested right to organize Bazar on the subject plot. The plaintiff merely seeks protection of rights which have to be guarded, jealously, for general welfare and good order. Therefore, the assertions made on behalf of the defendant No.1 that the plaintiff must establish its prescriptive easementary rights through evidence has not impressed me at all. The learned counsel for the plaintiff has urged that the subject plot cannot be utilized for any purposes other than park by virtue of the Karachi Development Authority (Sindh Amendment) Act, 1994. After the said amendment, Article 52‑A of K.D.A. Order, 1957 reads as follows:‑‑ "52‑A.‑‑(1) The Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of, Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, grave yards or such other purpose and the Commissioner shall notify such details in the official Gazette. (2) No amenity plot reserved for the purpose mentioned in clause (1) shall be converted to or utilized for any other purpose. " It may be noted that the above -referred sub‑Article (2) was promulgated to substitute sub‑Articles (2), (3) and (4) of the said provision. The provisions which have been substituted, as above, did permit Karachi Development Authority discretion, subject to observance of procedure, to allow conversion of the amenity plots to any other purpose after inviting objections from general public. The incorporation of sub‑Article (2), as above, has, however, taken away the right enjoyed by Karachi Development Authority to allow conversion of use. An amenity plot reserved for amenities specified in Article 52‑A of K.D.A. order cannot be allowed use for any purpose other than the one sanctioned by the Provincial Government. Such provision is absolute and does not admit of any relaxation. In the present case, the subject plot, as per the extract from the notified scheme, produced by the defendant No.1 himself, is reserved for use as a park. The defendant No. 2 or 3 or any other authority cannot allow use thereof for any purpose other than park on any ground including the alleged provision for supplying goods to general public at cheaper rates. The restraint contained in Article 52‑A(2) of K.D.A. Order, 1957 is absolute and cannot be avoided on the basis of any technicalities nor can be compounded. The contention raised by Mr. Zahid Hamid, Advocate on the ground that the restraint against conversion of park plot ceases to operate after notification, dated 2nd February, 1993 is totally misconceived. Through the above‑referred notification, it may be recalled, the entire area of Gulshan‑e‑Iqbal was included in the limits of Karachi Metropolitan Corporation and the various liabilities and functions exercised by the K.D.A. including rendition of civic services stand transferred to Karachi Metropolitan Corporation. The prohibition contained in Article 52‑A(2) is a condition attached to the land and runs with the grant in perpetuity. The restraint is absolute and cannot be relaxed even by the superior‑holder for a day or fraction thereof. The offer made on behalf of the defendant No.1 for leaving half the area of the subject plot open or about carrying out its development as park cannot be considered a ground for validating what is unlawful. The defendant No.1 could not have been granted the licence to hold Thursday Bazar over the subject plot which cannot be used but as a park. The civic agencies are obliged to develop it as a park alone and cannot bank on their own negligence to earn premium at the altar of public deprivation. The learned counsel for the plaintiff has aptly referred to the judgment in Karachi Building Control Authority v. Saleem Akhtar Rajput. 1993 SCMR 1451 to contend that personal right must yield in favour of public right. The learned counsel for the defendant No. l has lastly urged that the grant of interim relief shall amount to disposal of the main case and, therefore, the application must not be allowed. In a case where the act complained of is based on all illegality, the grant of interim relief cannot be withheld merely on the ground that the final relief would stand granted. An illegality cannot be allowed to continue even on the grounds of convenience or otherwise. In the circumstances, the application for interim injunction is granted. Interim injunction granted. Q.M.H./M.A.K./A‑304/K