Suit No.1094 of 2008
Date of hearing: 1.10.2010.
Plaintiff: Pakistan Refinery Limited.
Defendants: Maskatiya Industries (Pvt.) Limited.
Mr. Rashid Anwer, Advocate for the plaintiff.
M/s. Muneer A. Malik and Haider Waheed, Advocates for the defendant.
Muhammad Ali Mazhar, J. By this order, I will dispose of CMA No.7860/2008 filed by the plaintiff under Order 39 Rules 1 and 2 CPC and CMA No.11551/2008 filed by the defendant under Order 39 Rule 4 CPC.
The plaintiff has filed the instant suit for Declaration, Mandatory, Prohibitory Injunction & Damages with the following prayer:-
a. For a declaration that the construction of a Factory building on the said plot within one kilometer of the Pakistan Refinery Limited by the defendant is unlawful, illegal, hazardous and in violation of the Civil Defence Act, 1952, the Civil Defence (Special Powers) Rules, 1951, the Directive of the Federal Government and the legal rights of the plaintiff ;
b. For a permanent injunction restraining the defendant, either directly or indirectly (whether through an employee, agent or otherwise) from raising any construction on the said plot;
c. For a mandatory injunction directing the defendant to remove any construction on the said plot so far ;
d. without prejudice to any of the above relief, and in addition, grant a decree for US $ 480 Million by way of damages ;
e. Grant any other relief which this Hon’ble Court deems fit and proper in the facts and circumstances of the case ;
Brief facts of the case are that the plaintiff is engaged in refinery business. It has been classified as a Key Point Installation 1-A, which means that no structure can be raised at least within 200 yards without the prior clearance of the Key Point Intelligence Division (Inter Services Intelligence). The defendant had started construction of its factory on the Plot No.116, 117, 118, Deh Dih, Tapoo Ibrahim Hyderi, Karachi in violation of the provisions of the Civil Defence Act 1952, (hereinafter referred to as the Act), the Civil Defence (Special Powers) Rules, 1951 (hereinafter referred to as the Rules) and the decision of the Defence Committee of the Cabinet. The factory was being constructed in close proximity in a high risk area, thereby endangering the health, safety and lives of the employees of the defendant, who will work in the factory. It is also stated in the plaint that the plaintiff is involved in the refining and storage of many oil related products. The process of refining crude oil takes place at extremely high temperatures and extremely high pressures to produce the various products. Keeping in view the importance of the petroleum industry and critically important role, the Federal Government issued a directive on 30.04.1992 to the effect that no structure shall be permitted to be constructed within the following distances of the key points unless the layout and materials involved are cleared by the Key Point Intelligence Division:-
Category of Key Point Distance from Key Point
1-A 200 yards.
2-A 100 yards.
According to the plaintiff, Key Point Installation is a structure, installation or establishment of vital importance to the country in its readiness and ability to fight a war and if such a structure, installation or establishment were to get damaged or destroyed or shut down for any reason then it would cause severe change to war time efforts. It is further alleged in the plaint that the plaintiff has put up several signs around its premises informing the general public about the directive. The defendant has not obtained clearance from the Key Point Intelligence Division of the Inter Services Intelligence which is supposed to be obtained prior to the commencement of construction. The construction of the factory without adequate and proper safeguards in such a high risk zone would both endanger the lives of people as well as prevent the completion of this vital national project. It is imperative that the defendant should be restrained and if the defendant is not restrained, the plaintiff would suffer irreparable harm and injury.
In the injunction application, the plaintiff has prayed that the defendant be restrained from commencing, initiating and or continuing any type of construction activity on its plot.
In the counter affidavit, the defendant stated that the Rule 10 and the alleged decision of the Defence Committee of the Cabinet is ultra vires to the Rule making powers conferred under Section 2 of the Act. The interior ministry’s order dated 30.04.1992 is taking a property without compensation, which is violative of the Constitution. Plaintiff is put to strict proof that it has been classified as a Key Point Installation 1-A. The defendant denied that no structure can be raised within 200 yards of the Key Point Installation 1-A. it is further stated that the defendant is raising construction on its plot pursuant to a building plan approved by the Cantonment Board, Korangi Creek, Karachi. The defendant has paid Rs.4,756,000/- towards development charges, mutation fees, scrutiny fees to the Cantonment Authorities prior to the approval of the building plan. At the time the suit was filed, the defendant was only raising a boundary wall to secure the plot pursuant to the permission granted by the Mukhtiarkar Revenue, Korangi Town, City District Government, Karachi. It is denied that a factory constructed in accordance with the approved building plan would be in close proximity to that portion of the plaintiff’s factory where the operations of refining of oil products is undertaken. The defendant will construct its factory using such material as would provide adequate protection to ensure the health, safety and lives of those who would be working in the defendant’s factory. It is for the plaintiff to take all precautionary measures to ensure that its activities does not endanger the live, health and safety of others or the same does not amount to nuisance. The real reason is that on the road between the plot of the plaintiff and the plots of the defendant, the former parks its tankers completely blocking the road. Such parking creates a nuisance that the plaintiff wants to continue by restraining the defendant from using its plot for a factory, thereby retaining exclusive use of the said road for parking. The plaintiff has not provided any adequate notice to prospective purchasers of the plot in the vicinity of its plot as to the contents of the directive. To the contrary, all prospective purchaser of plots in the vicinity invariably place public advertisement before completing the purchase inviting objections to the proposed transaction. The defendant prior to purchase of its plot issued a public notice in a leading daily newspaper. After the grant of plots now owned by the defendant, the Government of Sindh, Land Utilization Department after conducting various surveys demarcated the boundaries of the suit plots granted to the predecessor-in-title of the defendant. This demarcation was done after due notice to the plaintiff. The instant suit is mala fide and designed to protect the encroachment. In fact while constructing a wall between plots 118 and 119, the defendant has moved the wall 8 feet within its plot from the actual boundary between plots 118 and 119 as there was an oil pipeline running through plot 119. The defendant had left this distance as a gesture to others so as not to obstruct the servicing of the oil pipeline. An area of 8 feet running alongside this wall towards plot 119 also belongs to the defendant who shall use the same for parking its vehicles. It is further stated in the counter affidavit that at present, the defendant is only constructing a boundary wall to protect its property from encroachers including the plaintiff and its associates concerns and to prevent trespass by the oil tankers that fill up or discharge oil products at the refinery of the plaintiff.
The defendant also filed an application under Order 39 Rule 4 read with Section 151 CPC with the prayer to set aside the order dated 21.08.2008 or in the alternative, vary such order to allow the defendant to construct a boundary wall on the subject plot to protect the same from encroachment. In the supporting affidavit, the defendant has almost taken the similar position as has been taken by it in the counter affidavit to the injunction application. No counter affidavit to this application seems to have been filed by the plaintiff.
I have heard the learned counsel for the parties and gone through the material available on record. Mr. Rashid Anwer, learned counsel for the plaintiff argued that the plaintiff is supplier of refined oil to Pakistan Army, Pakistan Air Force, Pakistan Navy, Karachi Building, domestic and industrial since commencement of its operation, therefore it has been classified as Key Point Installation 1-A, therefore, no structure can be raised at-least within 200 Sq.Yds without prior clearance of Key Point Intelligence Division. The Defendant started the construction of a Factory on its plot in violation of the provisions of Civil Defence Act, 1952, the Civil Defence Act (Special Powers) Rules, 1951 and the decision of the Defense Committee of the Cabinet as communicated by Ministry of Interior vide its letter dated 03.04.1992. Since the process of refining crude oil has had high temperature and pressure, therefore, oil refining are established area so as to minimize the risk of injury or death to the members of the public in case of out break of fire or explosion. The learned counsel for the plaintiff relied upon Rule 10 of Civil Defence (Special Powers) Rules, 1951 which provides that no building, or no building of such class as may be specified in the order shall be erected, or extended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay out, materials and construction as that Government may impose being requirements which it is in the opinion of that Government necessary to impose for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it. He further pointed out that if any person contravenes any of the provisions of an order made under this rule, shall be punishable with imprisonment for a term which may extend to 3 years. He further referred to a letter dated 30.4.1992 addressed by Deputy Secretary, Ministry of Interior, Government of Pakistan to Chairman KPID Committee, Islamabad and Home Secretaries, Government of Punjab, Sindh, North West Frontier Province (NWFP) and Baluchistan, in which it has been communicated that no structure shall be permitted to be constructed within the distance of 200 yards of Key Points Installation I-A. The Deputy Secretary referred to a Meeting of Defense Committee of Cabinet, in which, it was pointed out that some very essential Key Points of category I-A and 2-A have become insecure because of unrestricted constructions of building in their vicinity. By reproducing Rule 10 of Civil Defense (Special Powers) Rules 1951 in the letter, it was further stated that this is an enabling section, which gives wide powers to Government for controlling the construction of building, as regards lay out as well as material and in exercise of powers conferred by Rule 10, the Federal Government has decided that no structure shall be permitted to be constructed unless lay out and materials involved are cleared by Key Point Intelligence Division. The learned counsel for the plaintiff further pointed out that similar controversy was raised between Barrett Hodgson Pakistan Private Limited and the Plaintiff and the facts of that case are that M/s. Barrett Hodgson Pakistan Private Limited acquired a piece of land for establishing Educational Institution and International standard. When they started construction, plaintiff raised the similar objection that no construction can be raised within 200 yards of refinery parameters. Both the parties filed suits against each other in this Court and finally the learned Single Judge vide order dated 3.10.2008 dismissed the injunction application of the same plaintiff with the observations that Cantonment Board has approved construction plan and the construction is half way, Federal Government being one of the defendants has neither supported the case of the defendant No.1 nor has taken any action in terms of Rule 10. The judgment of learned Single Judge is reported in 2009 MLD 1100. The learned counsel further argued that the order of learned Single Judge was challenged in the High Court Appeal, which was also dismissed with the observation that the order passed by the learned Single Judge requires no interference. The judgment in the High Court Appeal is reported in PLD 2009 315. Against the concurrent findings, the plaintiff filed Civil Petition Nos.1852 and 1853 of 2009 in the honorable Supreme Court of Pakistan, which were decided on 8.10.2009 and the judgment of learned single judge and divisional bench of this Court both were set aside on the agreed terms that the management of School shall not make it operational till final disposal of suit, the honorable Chief Justice of High Court of Sindh be requested to assign both the suits to special bench for their disposal expeditiously within a period of six months and the parties shall not lead oral evidence and the trial bench shall dispose of the suits on the basis of documentary evidence which shall be produced on record, therefore, he submitted that the judgment passed by learned single judge and affirmed by the divisional bench, are no more in force after setting aside both the judgments by the honorable Supreme Court of Pakistan. In support of his arguments, the learned counsel for the plaintiff relied upon the following case law:-
(1) PLD 1969 SC 223 (Mian Fazal Din vs. Lahore Improvement Trust, Lahore). This judgment pertains to Article 98 of the Constitution of Pakistan, 1962. The honorable Supreme Court has held that if the applicant discloses that he had personal interests in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of personal interest or advantage or the curtailment of a privilege or liberty or franchise. The right considered sufficient for maintaining the proceeding in writ jurisdiction need not necessarily be a right in strict juristic sense.
(2) 1990 CLC 448 (Suleman Mala vs. Karachi Building Controlling Authority). In this judgment, the learned divisional bench of this Court held that property holders within the parameters of such schemes and even permanent resident come to have either vested or, at very least some interest in the observing of necessary features of necessary schemes. The legal authority operating in such areas is obliged to ensure the observance and continuity of such schemes but always subject to law. Right in such observance may not in any case the rights in strict sense or to strict juristic right but could be rights or even interest of an inferior nature, if not observed, could give rise to grievance for individual. Where rights in strict legal sense are involved, remedy for transgression may be through civil suits, or if necessary, in constitutional jurisdiction.
(3) 1990 MLD 828, (Afroz Ilahi vs. K.M.C & others). In this judgment, the learned divisional bench following the dictum laid down in the judgment reported in PLD 1969 SC 223, held in its constitutional jurisdiction that a petitioner need not necessarily have a right in the strict juristic sense but it is enough if the petitioner discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage.
On behalf of the defendant, Mr. Muneer A. Malik and Mr. Haider Waheed Advocates appeared. Mr. Muneer A. Malik, learned counsel for the defendant argued that the similar controversy was raised in the Suit Nos.694 and 1063 of 2008 which was decided and the injunction application filed by the same Plaintiff, was dismissed. The order of the learned single judge was challenged in the High Court Appeal, which was also dismissed. The order of learned single judge was affirmed in the High Court Appeal, therefore, the judgment passed by the divisional bench of this Court is binding. The learned counsel further argued that though by consent the judgments were set aside and remanded back to this Court for deciding the matter afresh but the honorable Supreme Court has not decided any question of law, therefore, the judgment passed by the divisional bench in High Court Appeal, has not lost his efficacy and still binding. In addition thereto, the learned counsel argued that the plaintiff has no locus standi to file the instant suit as the plaintiff has failed to disclose any infringement of his right. The plaintiff can seek a declaration only if it is entitled to some legal character or any right as to any property. He further argued that the plot was lawfully allotted to the defendant, the building plan for the said plot, has been approved by the Cantonment Board, Korangi, Karachi. The defendant has paid huge amount towards development charges, mutation fees and security fees to the Cantonment Authorities prior to the approval of the building plan. He further argued that no part of the structure raised by the Plaintiff on its plot is within 200 yards of the boundary of the plot of the defendant. Before purchasing the plot, the defendant has placed public notices in the Newspapers but no objection was ever raised by the Plaintiff at that point of time. Rule 10 of Civil Defence (Special Powers) Rules, 1951 is meant for securing construction for the safety of the plaintiff and/or that of the defendant in its building within prohibited zone. Defendant possesses no threats to the plaintiff. The learned counsel also referred to an Office Memorandum dated 03.01.2009 issued by the Director General Civil Defence Ministry of Interior Government of Pakistan in which after a detailed deliberation, it was finally observed in paragraph No.3 that the Director General Civil Defence has no objection over the construction of the School by M/s. Barrett Hodgson Pakistan Limited and M/s. Al-Rehman Trading Company or over construction of any structure/building by any agency/organization etc, to whom, the land is allotted by the Sindh Government, Cantonment and Board of Revenue Sindh. He further argued that the defendant will construct its Factory with such material as would provide adequate protection to ensure health, safety and lives of those who would be working in the defendant’s Factory. The learned counsel reiterated that though the judgment of the learned Single Judge in High Court Appeal referred to above, was set aside in the light of settlement agreed between the parties in the Honorable Supreme Court of Pakistan but it is quite evident that the said order of Supreme Court was judgment in personam thereby only being effective between the two parties without changing, modifying or reversing the ratio decidendi of the High Court Judgment, which would operate judgment in rem.
On the next date, Mr. Haider Waheed, continued his arguments and relied upon the following case law:
1. 2008 CLC 1570 (Mst. Khalida vs. Raja Muhammad Khurshid Khan). In this case, learned single Judge of High Court (AJ&K), held that when it is established that the plaintiff has no legal right regarding disputed property then he has no locus standi to file a suit. The plaintiff can seek declaration only if he is entitled to some legal character or any right as to any property, otherwise, the Court will refuse to give any declaration under S. 42 of the Specific Relief Act.
2. 2004 MLD 227 (Mrs. Halima Tahir vs. Naheed). In this case, learned divisional bench of this Court held that under S.42 of the Specific Relief Act, any person entitled to any right as to any property can file a suit for declaration against any person denying or interested to deny his title to such right while section 56 of the said Act states the various situations where injunction cannot be granted by a Court.
3. PLD 1987 Supreme Court 145 (Pir Bakhsh vs. Chairman, Allotment Committee). In this case, hon’ble Supreme Court has discussed terms “judgment in rem” and “judgment in personam” and held that terms “in rem” and “in personam” are of Roman Law used in connection with action, that is, action in rem and action in personam to denote the nature of actions, and with the disappearance of the Roman form of procedure, each of the two terms “in rem” and “in personam” got tagged with the word judgments to denote the end products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them. The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared.
4. 2000 CLC 661, (Messrs Sandal Dye Stuff Industries Ltd vs. Federation of Pakistan). In this case, also, the learned single judge of Lahore High court has discussed terms “judgment in rem” and judgment in personam” and held that judgment declared only the legal position, therefore, it was not a “judgment in personam” but it was in the nature of “judgment in rem”. The “judgment in personam” is in short a declaration to one’s rights personal and to property which would cover contract, title, property and marriage. Learned author of the judgment has also quoted Salmond Jurisprudence which provides distinction in these words that what it decides generally is the ratio decidendi or rule of law for which it is authority, what it decides between the parties includes far more than just this. Since it would be obviously impracticable if there were no end to litigation and if either party to a legal dispute were at liberty to reopen the dispute at any time, the law provides that
once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by the Court’s findings on the issues raised between them and on questions of fact and law, necessary to the decision of such issues. Elaborating further, it is the policy of the courts to stand by the ratio decidendi, that is, the rule of law and not to disturb a settled point. This policy of the Courts is conveniently termed as doctrine of rule of stare decisis. This rationale behind this policy is the need to promote certainty, stability and predictability of the law. It was further held that where judgment of High court was reversed by Supreme Court there was nothing left in judgment of High Court to be followed.
5.PLD 1997 Supreme Court 84 (Al-Jehad Trust vs. Federation of Pakistan). In this judgment, hon’ble Supreme Court has held that disposal of a case by Supreme Court as a result of compromise between the parties without adverting to the legal issues cannot be treated as enunciation of law by Supreme Court within the meaning of Article 189 of the Constitution. It is further held in this judgment that where in a case, Supreme court had not found it necessary to go into certain question of law raised in the case, decision of Supreme Court on other issues in the same case, would not amount to a decision of Supreme Court on the said question of law so as to bar a decision on the same question of law raised in another case.
After hearing the arguments of learned counsel appearing for the parties, I have reached to the conclusion that the main reliance of learned counsel for the Plaintiff is upon Rule 10 of Civil Defence (Special Powers) Rules, 1951 which reads as under:
10. Security of buildings,-(1) The Central Government or the Provincial Government may by order, as respects any area specified in the order, provide for securing that, subject to any exemptions for which provision may be made in the order, no building, or no building of such class as may be specified in the order, shall be erected, extended or structurally altered except with the permission of that Government and in accordance with such requirements as to lay out, materials and construction as that Government may impose, being requirements which it is in the opinion of that Government necessary to impose for the purpose of rendering the building more secure or of affording better protection to persons using or resorting to it.
(2) If any person contravenes any of the provisions of an order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both”.
Pursuant to aforesaid rule, the Defence Committee of the cabinet in its meeting had decided that no structure shall be permitted to be constructed within the distance of 200 yards from Key Point Installation A-1 and 100 yards from key Point Installation 2-A unless lay-out and materials involved are cleared by the Key Point Intelligence Division. Similar controversy was decided by the learned single Judge of this Court and his judgment was affirmed in High Court appeal. The plaintiff impugned aforesaid judgments in the honorable Supreme Court and vide order dated 8th October, 2009, the Civil Petitions were disposed of on agreed terms and conditions that the management of school shall not make it operational till final disposal of the suit and the honorable Chief Justice of this Court be requested to assign both suits to a special bench for disposal expeditiously within a period of six months. The parties shall not lead oral evidence. The trial Bench shall dispose of the suits on the basis of the documentary evidence, which shall be produced on record. On this settlement, the honorable Supreme Court set aside order passed by the divisional bench and the learned single Judge of this court with further directions that the application for interim injunction filed by the petitioner before the High Court shall be deemed to have been disposed of in the above terms.
Binding effect of a decision of honorable Supreme Court on other Courts is provided under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced as under:
“189. Decisions of Supreme Court binding on other courts: Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan”.
Both the learned counsel appearing for the plaintiff and defendant addressed their arguments on the applicability of division bench judgment of this Court passed in the similar controversy whereby judgment of learned single Judge was affirmed. Learned counsel for the plaintiff argued that judgment passed by divisional bench of this Court has no binding effect after the judgment of honorable Supreme Court while learned counsel appearing for the defendant argued that though the judgment delivered by learned single Judge and divisional bench both have been set aside by consent of the parties, even then, the judgment of divisional bench is still binding on the single judge of this Court and the said judgment may be considered while disposing of the injunction application in this case. In my view, there is no cavil to the constitutional provisions embodied in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. At the same time, I am fully cognizant to the fact that while disposing of the aforesaid civil petitions by the honorable Supreme Court, no question of law was decided but at the same time, another important aspects cannot be lost sight that though no question of law was decided in the order but the honorable Supreme Court by consent of the parties set aside the judgment passed by learned single Judge and the divisional bench of this Court, therefore, in the present situation, the judgment of divisional bench has lost its efficacy and binding effect, therefore, for the purpose of proper decision of the application in question, I have to apply my independent mind and approach. Question of considering the effect of judgment as “judgment in personam” or “judgment in rem” has no relevancy as the fact remains that at present both judgments do not hold the field and no aid or assistance can be taken from both the judgments which in the present form are set aside judgments.
According to the plaintiff, the crux of the matter is that the plaintiff is key point installation 1-A, therefore, no structure can be raised within 200 yards without prior clearance of the Key Point Intelligence Division and the case of the Plaintiff is that the Defendant has started to raise construction without prior permission, therefore, present suit for declaration, mandatory and prohibitory injunction has been filed. Rule 10 of the Civil Defence (Special Powers) Rules, 1951 provides that no building as may be specified in the order shall be erected or structurally altered except the permission of Government in accordance with such requirements as to lay out, materials and construction as that Government may impose being requirement which it is in the opinion of that Government necessary to impose for the purpose of rendering building more secure or of affording better protection to persons using or resorting to it.
Learned counsel for the Plaintiff also referred to a book-let issued by Chairman, Key Point Intelligence Division Committee in which categories of key points have been defined in paragraph-4 (chapter-IV) and according to the definition provided in the book-let, category 1-A Key Point is defined as under:
“Category 1-A: A key point whose structure or services are of the highest importance to the war potential and whose total loss or severe damage might have disastrous effects on the both national war efforts (owing to the lack of any alternative source)”.
Learned counsel for the Defendant argued that the defendant started construction pursuant to an approved building plan and has paid all charges towards development mutation fee and security fee to the Cantonment Authorities and the Defendant will construct its factory using such material as would provide adequate production to ensure health, safety and lives of those who would be working in the defendant’s factory and at the time when suit was filed, the defendant was only raising boundary wall to secure the plot from encroachment. He further argued that plot in question is not within 200 yards of the boundary of the plot of the Plaintiff. The plot was purchased by defendant after complying with all necessary formalities and no objection was ever raised by the plaintiff at that relevant time.
Under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 freedom of trade, business or profession has been guaranteed as fundamental right which provides that subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business. Under Article 23 of the Constitution, every citizen has right to acquire, hold, and dispose of property in any part of Pakistan, subject to the constitution and any reasonable restrictions imposed by law in the public interest and the rights to property have been protected under Article 24 of the Constitution which provides that no person shall be compulsory deprived of his property save in accordance with law. So it is clear that to acquire, hold and dispose of property is the fundamental right which cannot be deprived except reasonable restrictions imposed by law in the public interest.
At this juncture, I would like to refer to a judgment reported in PLD 2007 Supreme Court 642, (Pakistan Muslim League versus Federation of Pakistan) in which, the honorable Supreme Court held that no infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable. No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt that reasonable restriction can be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled, powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest. A reasonable restriction is one which is imposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being the minimum that is required to preserve the public-interest. The characteristic of a Fundamental .Right is its paramountcy to ordinary State made laws. They are immune from the pale of legislative enactments and executive actions. The sanctity of the Fundamental Rights is protected by Article 8 (2) of the Constitution which prohibits the state which includes the Legislature not to make any law by which any Fundamental Right may 'be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. Citizens of Pakistan cannot themselves waive out of the various Fundamental Rights which the Constitution grants them.
Since, the honorable Supreme Court in the similar controversy has already disposed of the matter on agreed terms that the parties shall not lead oral evidence and the trial bench shall dispose of suit on the basis of documentary evidence which shall be produced on record in the meantime, therefore, in my view, similar treatment should be given to this case also so that entire Controversy may be resolved relating to rule 10 of the Civil Defence (Special Powers) Rules, 1951 and the directives issued by Key Point Intelligence Division in which a condition of 200 yards distance has been imposed. It is no where pleaded by the plaintiff in the suit that in case the Key Point Intelligence Division refuses to grant permission to the defendant, what would be the effect, whether the plaintiff will compensate the defendant or acquire property in question at a market price with or without compensation. Another important aspect is also to be looked into that if the condition of 200 yards is so sacred and sacrosanct then why the plaintiff has not acquired entire surrounding land within the distance of 200 yards to save its refinery or to save the other people who may raise construction within the parameters of 200 yards. It is also an other important aspect that whether the entire infrastructure of the plaintiff will be considered as Key Point 1-A installation or 200 yards will be measured from its actual installation/terminal, this fact was admitted by the plaintiff during course of arguments that the plaintiff’ refinery is established on a huge plot with different service and amenity areas. Under the order of this Court, Nazir was appointed to carry out inspection. The Nazir in his report dated 14.3.2009, reported that the distance between the defendant’s plot and lower side gate of plaintiff is 149 yards while from upper side gate of plaintiff is 144 yards. Nazir further stated in his report that the representative of the defendant pointed out him that inspection was to be carried out from the terminals of the plaintiff which is key point but representative of he plaintiff informed the Nazir that earlier in another matter inspection was carried out from the outer gate of plaintiff up to defendant’s construction as the terminal which is stated to be key point is secret point and he undertook to provide detail with regard to measurement in writing positively within two days to the Nazir, thereafter, the learned counsel for the plaintiff filed statement before the Nazir in which it was stated that entire Pakistan refinery is a Key Point Installation category 1-A. In pursuance of order dated 21.4.2009, this Court further directed the Nazir to enter into the premises of the plaintiff and submit the report and the same be sealed till further orders, thereafter, nothing is available on record to show whether any inspection was carried out by the Nazir in pursuance of the order dated 21.4.2009.
The controversy between the parties cannot be resolved simply on the decision of these applications as the bone of contention between the parties whether plot of the defendant on which construction was started is within 200 yards or beyond that can only be decided when the issues are framed in the matter. It seems that Nazir has not complied with the order dated 21.4.2009, in which he was directed to enter into the premises of the plaintiff and submit report. This important aspect is also to be decided whether for the purposes of determining the actual distance, the distance from the gate of Pakistan refinery limited will be taken into consideration or distance will measured from its terminal. It is further to be decided whether entire establishment of the plaintiff will be considered as Key Point Installation 1-A or only its terminals/installations will be treated as Key Point Installation 1-A. It is also not clear from the documents produced by the plaintiff that in case Key Point Intelligence Division refuses to grant the permission to the defendant, then what would be the effect, whether in that case plaintiff will purchase entire plot of the defendant on prevailing market price with compensation. At present nothing can be said about the fate of permission if any applied by the defendant to KPID and it is also not clear what would be the position in case of its refusal.
The case law relied upon by the plaintiff’s counsel are related to enforcement of rights in which the petitioner need not necessarily have a right in the strict juristic sense but it is enough if the petitioner discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage. If the applicant discloses that he had personal interests in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of personal interest or advantage or the curtailment of a privilege or liberty or franchise. At this stage, it can not be said that the plaintiff has no legal character to file the present suit for the enforcement of its alleged right. While the judgment relied upon by the learned counsel for the defendant are related to the validity/applicability of judgment in rem and judgment in personam with further emphasis that disposal of a case by Supreme Court as a result of compromise between the parties without adverting to the legal issues cannot be treated as enunciation of law by Supreme Court within the meaning of Article 189 of the Constitution. The other judgments cited by the learned counsel are related to principle that when it is established that the plaintiff has no legal right regarding disputed property then he is no locus standi to file a suit. The plaintiff can seek declaration only if he is entitled to some legal character or any right as to any property, otherwise, the Court will refuse to give any declaration under S. 42 of the Specific Relief Act. So far as the effect of two earlier judgments by the leaned single judge and divisional bench is concerned, I have already discussed in detail that though, while setting aside both judgments, the honorable Supreme Court had not decided any question of law but for me, the present status of both the judgments is set aside judgments while other judgments cited by the learned counsel enunciates old age principle for seeking declaration for which the person has to prove its legal character while seeking declaration from the court.
The whys and wherefores lead me to a conclusion that this suit can not be decided in piecemeal. Since, the matter is also fixed for settlement of issues, I frame the following issues after examining the pleadings of the parties:-
1. Whether the directives/order issued by the Ministry of Interior, Govt. of Pakistan dated 30th April 1992 is violative of the Constitution of Islamic Republic of Pakistan 1973?
2. Whether the powers delegated under Rule 10 of Civil Defence (Special Powers) Rules 1951 is excessive and unlawful?
3. Whether the aforesaid directives can be treated reasonable restrictions imposed by law in the public interest and protected under Article 23 of Constitution of Islamic Republic of Pakistan 1973?
4. Whether the restrictions of distance for raising construction beyond 200 yards will be taken into consideration from the outer wall/boundary of the plaintiff and not from its terminal/installations?
5. Whether the entire refinery of the plaintiff is Key Point Installation I-A?
6. What would be the fate of defendant’s plot if permission applied and denied by the Key Point Intelligence Division?
7. Whether the plaintiff is entitled to recover damages as prayed in the suit?
8. What should be the decree?
List of witness within seven days, documents and commission if any within one month. Parties may file additional issues if any within ten days.
In the order dated 21.4.2009, after hearing the learned counsel of the parties, Nazir was directed to enter into the premises of the plaintiff and submit the report and same be sealed till further orders of the court. Though it appears from the aforesaid order that the learned counsel for the plaintiff opposed such directions but the fact remains that the directions containing in the order are still intact as nothing visible from court file that it was ever questioned or challenged by the plaintiff in appeal or otherwise, therefore, Nazir of this Court is directed to comply with the order within ten days positively with advance notice to the parties and their learned counsels and after inspection according to mandate, keep the report sealed in his custody till further orders of the court.
In my view, the bone of contention between the parties can be resolved on the basis of available documentary evidence in which mostly, the questions of law are involved and there is no dispute against the title of the defendant, therefore, the parties may opt to address the arguments on issues of law without adducing any oral evidence except issue No.7. Office is directed to fix the matter for further orders so that the learned advocates appearing for the parties may be able to inform the court whether they are interested to lead evidence or the entire matter may decided on the basis of arguments as short cause.
So far as continuation of interim injunction is concerned, the main grievance of the plaintiff is only against the construction of building/factory. The defendant in its application under Order 39 Rule 4 CPC has prayed that either interim order may be recalled or in the alternative, the defendant may be allowed to raise boundary wall on its plot to protect the same from encroachment. Keeping in view the circumstances of the case, no prejudice will be caused to the plaintiff if the defendant is allowed to raise the boundary wall on its plot at its own risk to protect the same from encroachment.
As a result of above discussion, C.M.A 7860/2008 and C.M.A 11551/2008 are disposed of with the directions that till final adjudication of the matter, the defendant shall be restrained from raising construction of building/factory on the plot in question, however as prayed in the application moved under Order 39 Rule 4 C.P.C, the defendant is allowed to raise/erect boundary wall on its plot at its own risk to protect the same from encroachment.