2009 PLP 1958 (YLR)

KHALID ALI Z. QAZI, J.

C.M.A. No.9148 of 2007 is an application moved by the plaintiff under Order XXXIX rules 1 and 2, C.P.C. read with sec tion 151, C.P.C., seeking an order of restraint against the construction and operation of the proposed CNG station on Plot No.C-9, Sectors 15 and 16, Gulistan-e-Mazdoor, Baldia Township, Karachi (hereinafter referred to as the suit plot), owned/occupied by the defendants Nos.1 and

2. C.M.A. No.2812 of 2009 is an application under section 151, C.P.C. moved by the plaintiff placing on record extract of proposed amendments incorporated in the Regulation 25:12:18 of Karachi Building and Town Planning Regulations, 2002 in June, 2007 regarding distance of 0.75 K.M. from one CNG Station to another CNG Station. The points of facts and law being common, the said two applications are being disposed of through the instant consolidated order.

2. The brief facts giving rise to the .present case are that the plaintiff, claims to be carrying on the business under the name and style of Paradise CNG Filling Station being lessee on Plot No.C-2, Sectors 15 and 16, Gulistan-e-Mazdoor, Baldia Township, Karachi, since 1st September, 2006, after completing all the codal formalities in accordance with law. It is the case of the plaintiff that the suit plot i.e. C-9 owned and occupied by the defendants Nos.1 and 2 which is at the distance of less then 200 meters from the Filling Station of the plaintiff which is fully operational from more than one year. According to the plaintiff instead of his objections, the defendant No.3 has permitted the construction/establishment of CNG Station in utter disregard and violation of the directive framed in that behalf imposing restriction/ban of installing CNG Station at a distance less then 0.75 K.M., intervening two CNG Stations.

3. The plaintiff has sought a restraint order against the construction and operation of the proposed CNG Station on the following grounds:-- (a) The conversion of suit plot from commercial-cum-industrial to CNG is barred under Regulation 25:12:18 of the Karachi Building and Town Planning Regulations, 2002, ("the 2002 Regulations") as proposed amendment made in June, 2007 by the City Nazim CDGK; (b) All the permissions were issued by the ' Government authorities in favour of defendants Nos.1 and 2 subject to the compliance of law. Since regulation 25:12:18 has been amended/modified regarding intervening distance of 0.75 K.M. between two CNG Stations, therefore, the permissions/NOC issued in favour of the defendants Nos.1 and 2 for installation of CNG Station are now no more available to them due to the reasons that distance of defendants CNG Station from plaintiff's CNG Station is less than 200 meters; (c) Similarly approval of building plan in respect of suit plot by KBCA in 2008 is in violation of supra proposed amendment; (d) The installation of CNG Station shall adversely impact the environmental conditions in the area and shall be serious hazard to the safety and life of the population and property in the immediate vicinity; (e) The impugned CNG Station shall cause nuisance, pollution, traffic jams and obstructions to the plaintiff in the enjoyment of his business and property; and (f) The impugned action shall also abrogate the plaintiff's easementary rights.

4. In the contrasts, the contentions of the defendants Nos.1 and 2 are underscored as follows:-- (a) The plaintiff has not filed the suit with clean hands, as the plaintiff wants to harm the defendants monetarily by restraining the establishment and running of CNG Filling Station with bad intention. (b) The suit filed by the plaintiff is hit by sections 42 and 56 of the Specific Relief Act; (c) The suit plot was acquired by Army Welfare Trust Askari CNG' Project, after conversion of its status from commercial-cum- industrial to CNG and payment of substantial amount of Rs.2.05 million to MPGO, City District Government Karachi (defendant No.3). All codal formalities have been completed and all NOCs from the concerned departments have been obtained. (d) The suit plot is far away from the plaintiff's plot. The approvals were granted after fulfilling all the legal requirements, it is located on the distance of 176 meters from the existing CNG Station and there are two roads (40 feet and 50 feet wide) in between the two stations. (e) The Notification referred in this case regarding distance of 0.75 k.m. from one CNG to another CNG Station was issued in June, 2007, hence this Notification cannot be applied retrospectively while NOCs for CNG Station issued in favour of defendants are much earlier. Therefore, in this case, the distance condition referred by the plaintiff is not applicable. (f) The defendants Nos.1 and 2 have hugely invested in the installation of the CNG Station in terms of import of plant and machinery and construction, while most of the finance have been generated through the financial institutions carrying heavy interest/mark-up. Funds of the Army Welfare Trust are also involved, hence the balance of convenience lie in carrying out the .construction and running of the CNG Station.

5. The defendant No.3 i.e. CDGK has taken a stance that case has been processed according to the Karachi Building and Town Planning Regulations, 2002 as amended upto date. It is further added that Notification of June, 2007 is not applicable in the instant case as NOC was issued for suit property on 29-9-2006, therefore, the distance condition is not applicable.

6. I have heard the rival contentions of the parties, perused the record and case law on the subject.

7. The admitted position is that the suit plot was converted from commercial -cum-industrial to CNG by defendant No.3 on 29-9-2006. The defendants Nos.1 and 2 f have completed all the legal formalities and following NOCs/permissions were obtained from the competent authorities:-- (i) Permission of change of land use from commercial-cum-industrial to CNG only vide DDO-HQ-1 and Auction/L-M-II/CDGK/632/2006 dated 25-11-2006. (ii) MPGO, CDGK's NOC for installation of CNG Station vide letter No.J-A/EU/Mpgo/ CDGK/ NOC/ CNG/ 2006/ 263 dated, 29-11-2006. (iii) DCO, CDGK, NOC vide letter No. DCO/ DDO/ LAWN/ NOC/ CNG/49/2006/227 dated 2-12-2006. (iv) Baldia Town Nazim Karachi NOC vide letter No. TMA/Nazim/BT/166/2007 dated 10-9-2007. (v) OGRA provisional licence to install CNG vide letter No.OGRA/CNG/ 18/3770/2006 dated 12-6-2006. (vi) Explosive Department provisional licence dated 9-10-2007. (vii) SSGC NOC for provision of Gas connection dated 30-1-2008. (viii) KBCA approved Building Plan vide No.KBCA/DCB/Baldia Town/ 3642/27/2007/10 dated 12-1-2008.

8. On perusal of the material available on the record, I am of the humble view that the Notification No. KBCA/DC (A-P/-1)/2007/676 dated 7-7-2007 regarding distance of 0.75 k.m. from one CNG Station to another CNG Station cannot be applied retrospectively in the instant case. Reliance may be made on the case of Elahi Cotton Mills Ltd. and others v. Federation of Pakistan and 6 others PLD 1997 SC 582, wherein the Honourable Apex Court has been pleased to hold that an executive order/Notification, which is detrimental or prejudicial to the interest of a person, cannot operate retrospectively. However, a beneficial executive order/Notification issued by an executive functionary can be given retrospective effect.

9. As regards the averments of easementary rights, suffice would it be to say that same would require evidence and as such no inference can be drawn at this stage. In this regard, reliance is placed on the case of Jawaid Mir Muhammadi and others v. Haroon Mirza and others PLD 2007 SC 472.

10. With regard to the arguments of safety and hazards, I am constrained to issue a direction to the regulating agencies that they must periodically ensure that all standards are strictly conformed by the operators. In respect of CNG Stations, the defendant No.3 must periodically inspect the sites of all CNG Stations in their jurisdiction as to ensure that all the CNG Stations comply with the safety requirement in particular the installation of the approved gas cylinders. As regards the use of CNG, it may be emphasized that the adverse incidents which are reported throughout the world are mainly because of the use of bad quality of gas cylinders. Today almost every home has a gas connection and most of the cars have gas cylinders if run on CNG. Such cars abound on the street and are parked in residential homes. The global oil crisis also mandates the encouragement of alternative source of energy.

11. In light of above I am of the clear view that the plaintiff has not made out a prima facie case, the balance of convenience also lies in allowing the defendants Nos.1 and 2 to complete, start and run the CNG Station. In view of the heavy investment made by the defendants Nos.1 and 2, irreparable loss is likely to cause to the said defendants in case the injunction is allowed to operate. Accordingly, C.M.A. No.9148 of 2007 is dismissed, while C.M.A. No. 2812 of 2009 is also dismissed having become infructuous and interim order passed on 3-12-2007 is hereby vacated.

12. Before parting, it is specified that the observations made above are tentative in nature and there shall be no order as to cost. H.B.T./A-65/K Applications dismissed.