PLJ 2003
Present: MUSHIR alam, J.
versus
CITY DISTRICT GOVERNMENT through
NAZIM-E-AALA,
Suit No. 433 of
2002, decided on 26.2.2003.
(i) Constitution of
—Art. 4-Right to property or right to carry on business in a property not to be interpreted in a narrow sense, but must be given broader perspective and meaning in present commercial environment, where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. [P. 167] G
(ii) Constitution of
—Art. 9-Right to life-Not merely a vegetative living. [P. 167] F PLD 1994 SC 693 and 1999 SCMR 2882 fol.
(iii) Sindh Local Government Ordinance (XXVII of 2001)--
—-Ss. 54(g), 191, 192 & Fifth Sched., Part II, Item 39-Affixing of signboard and advertisement-Such powers and functions must be exercised in consonance with rules making power in terms of Ss. 191 & 192 of Sindh Local Government Ordinance, 2001. [P. 165] B
(iv) Sindh Local Government Ordinance (XXVII of 2001)-
—-Ss. 54(g), 191, 196(2) & Fifth Sched., Part II, Item 39-Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978, Bye-law 7-Display of advertisement-Allocation of site without invitation of offer through press-Effect-Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978 were subject to limitations as prescribed under S.lyl "or Sindh Local Government Ordinance, 2001 and one of its important req, irement was natural justice and due process of law-By natural justice, sud requirement demanded invitation of objections and hearing of persons to "be affected by such permission or fixation of hoarding or neon-sign--Allocat.u>n of site without inviting offers through press would amount to refusal of hearing of objection. [Pp. 165 & 166] C
(v) Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
—Preamble-Sindh Local Government Ordinance, 2001-and all other laws relating to Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making-Such public functions and duties conferred on f^e functionaries of District Government are to be exercised for the bettermei of the society at large. [P. 164 & 165] A
(vi) Specific Relief Act (I of 1877)--
—-S. 54-Constitution
of
(vii) Specific Relief Act (I of 1877)--
—S. 54-Expression "right to enjoyment of property"-Connotation-Perpetual injunction
is regulated under Section 54 of Specific Relief Act, 1877-Such injunction
may be granted where it is shown that defendant invades or threatens to invade plaintiffs "right to
enjoyment of property"-Right to enjoy property is not simply a right to
possess and occupy the property-By enjoyment
of the property, it also includes the right to free ingress and egress,
right to reap benefit. One of the most important rights which in this
commercial world has acquired a significant importance, is right of view or exposure to and from the particular
property-More particularly when such
property is of a commercial nature-People are more attracted towards the shops and establishments, when it is exposed to the general view—Office premises may be more
beneficially enjoyed in a multi-storey
building, when it has an over view of scenaric land scaping of the
city environment-Any invasion or encroachment of such right to enjoy the property is recognised. [P. 166] D
(viii) Specific Relief Act (I of 1877)--
—S. 54-Invasion of civil right in nature of tort-Injunctive relief obtainable- Person seeking injunction must make out a case of actual or of threatened violation of its rights. [P. 167] H
AIR 1941 Nag. 364; AIR 1914 PC 45
and-AIR 1978 Guj. 13 rel,
(ix) Specific Relief Act, 1877 (I of 1877)--
—-Ss. 42 & 54—-Section 42 read with S. 54 of Specific Relief Act, 1877 does give right to institute suit to plaintiff for establishing that light to view and exposure of, his commercial establishment is of some beneficial interest to him. [P. 167] E.
Mr. Abid S. Zubairi, Advocate for Petitioner. Mr. Salahuddin, / ,/ocate for Respondents Nos. 1 and 2. Mr. Abrar Hassan, Advocate for Respondent No. 3. Dates of hearing : 31.5.2002 and 18.2.2003.
order
Plaintiff is a registered association under the Societies Registration Act and has filed the instant suit in a Representative capacity through its General Secretary namely Sabir Pervez seeking declaration against the erection of the advertisements boards on pedestrian pavements in front of 'Clifton Centre', being illegal, for cancellation of permission/license for erecting such boards in the vicinity and .consequential relief of permanent injunction to the above effect. In the suit, the Plaintiff has filed an Application i.e. C.M.A. No. 2606 of 2002 under Order XXXIX, Rules 1 and 2, C.P.C. seeking interim relief against the Defendants in above terms. Ad-interim orders were passed on 11.4.2002. In addition to Defendant No. 3 has also filed an application i.e. C.M.A. No. 2823 of 2002 under Order XXXIX, Rule 3(4), C.P.C. seeking vacation of such orders. On 31.5.2002 C.M.A. No. 2823 of 2002 was fixed seeking for vacation of the ad-interim orders. By
Consent, arguments of learned counsel for the parties were heard as well on C.M.A. No. 2606 of 2002 under Order XXXIX, Rules 1 and 2, C.P.C.
The case of the Plaintiff, in brief, as set
out in the plaint is that the Clifton Centre wherein the members of the plaintiffs
Association have their respective offices situated on the right of
Saddar Town Council, the Defendant No. 2 also
filed the counter affidavit for itself and Defendant No. 1 raising preliminary
objections as to maintainability of suit
under Sections 42 and 56(d) of the Specific Relief Act. The counter-affidavit of the Union Council almost
adopts the factual assertion raised
by Defendant No. 3. It was pleaded that subject advertisement boards are being installed on
Defendant No. 3, M/s. U.B. Advertising, contested the application. In counter-affidavit, it was stated that at their request Saddar Town Council, Defendant No. 2, granted the permission and issued the challan in the sum of Rs. 3,75,000 which was paid on 20.3.2002, accordingly they undertook the assignment to install the proposed advertisement work arid spent Rs. 500,000 on the foundation and another sum of Rs. 12,00,000 on its designing. It was pleaded that several other hoarding and advertisement boards are installed in the vicinity and no objection has since been raised. It was stated that the defendants are suffering on account of the restraining order. It was also pleaded that the proposed board will beautify the surrounding neither air nor light is hampered.
Mr. Abid S. Zubairi, learned counsel for the plaintiff contended that there is a vast difference between the implementation of the advertisement policy of the two civic agencies, one is the managed, control and supervised by the Cantonment Board across the road. Whereas the hoarding and mashroon growth of the advertisement boards are regulated to some extent as against the area under the management and control of District Government and Town Council established under the Ordinance No. XXVII of 2001. Learned counsel pointed out that the Karachi Advertisement and Beautification Authority Ordinance, 1988 was promulgated on 28th June, 1988 providing for development, improvement and beautification of city of Karachi wherein under Section 13 any neon-sign hoarding or structure found to be prejudicial to the environmental beauties of any board of the notified area could be removed under the direction of the authority, unfortunately Ordinance lapsed. He contended that under Sindh Local Government Ordinance, 2001 ("SLGO 2001.") as per Sections 191 and 192 read with Vth Schedule Item No. 39, the Government enjoys the rules making powers in respect of fixing any bill, notice, playcard or other papers or means of advertisement other than the places fixed for the purpose by the Local Government. According to him, since no bye-laws or rules to the above effect have been framed the executive functionaries have no absolute power to act at their whims and fancy, such powers are to be used for the public good, welfare and in the large interest of the public at large any arbitrary fanciful exercise of such powers are subject to judicial review by this Court. In support of his contention, he has placed reliance on the case-laws reported as (1) Ardeshir. Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others 1999 SCMR 2882 relevant page at 2290, (2) Haji Ghulam Zamin and another v. A.B. Khondkar and others PLD 1965 Dacca 156 relevant page at 165, (3) M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228, (4) Haji Ghulam Sabir v. Pan Allotment Committee and another PLD 1967 Dacca 607, and (5) Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Put.) Ltd. and 18 others PLD 2001 SC 1 relevant at page 5.
Mr. Salahuddin,
learned counsel appearing for the official defendant
As against above Mr. Abrar Hassan, learned counsel for Defendant No. 3 contended that the plaintiffs are not the owner of the land over which subject hoarding is being installed. Neither any easementary nor legal rights are available to the plaintiff. According to the learned counsel, the fixation of the advertisement boards is a prerogative of the Sindh Local Government under SLGO, 2001. Plaintiff cannot be allowed to interfere in its functioning. The activity carried out by the defendants is not environmental degradation on the contrary it is a beautification campaign. In support of his contention, he has relied upon the cases-laws reported as (I) Cawashah Bonmaji Parakh :\ Prafulla Nath (AIR 1941 Nagpur 364, (2) P.C.E. Paul u. W. Robson AIR 1914 PC 45, (3) Ushaben v. Bhungyataxmi Chitra Mandir AIR 1978 Gujrat 13. and (4) Kausar Musajee v. Niaz Ahmed 2000 SCMR 1823 relevant Page at 1826.
I have heard the arguments of all the learned counsel for the parties at great length, perused the material available on record and thoroughly examined the case laws cited at bar.
Adverting to the foremost legal objections raised by learned counsel for the defendants as regard right of the plaintiffs to maintain suit, contention of Mr. Abrar Hassan, learned counsel for Defendant No. 3 that easementary rights are regulated under the easement Act. According to him, under Section 4 of the Easement Act, such easementary rights could only be enforced provided the same are in continuous enjoyment for a period of 20 years as against the private person and as against public functionary for over a period of 60 years. Mr. Abid S. Zubairi, learned counsel for ilu -''aintiff reluctantly concedes that it is not only the easementary rights that au> being pressed into service, the plaintiffs are pressing in service rights to enjoyment of life and property. He has relied upon a case of Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others reported in (1999 SCMR 2882) (popularly known as 'Costal Liuma's case') at Page 2904, Apex Court with approval reproduced the following passage from W-.treaties on "Judicial Review of Administrative Action" (Fifth Edition) by de Smith, Woolf & Jowell:
"The general approach can be summarized as follows :--
(1)
'Sufficient interest' has to receive a generous
interpretation. It has to be
treated as a broad and flexible test.
(2)
Only issues as to standing where the answer is obvious
should be resolved on the application for leave. In other cases lack of standing should not prevent leave being
granted.
(3)
Issues as to standing at the leave stage do not depend on
the remedy
which is then being claimed.
(4)
If the applicant has a special expertise in the
subject-matter of the application that will be a factor in establishing sufficient interest. This applies whether the
application is an individual or some
type of association. The fact that
the applicant's responsibility in relation to the subject of the
application is recognized by statute
is a strong indication of sufficient interest.
(5)
A
great variety of factors are capable of qualifying as sufficient interest. They are not confined to property or
financial or other legal
interests. They can
include civic (or
community) environmental and cultural
interests. The interests can be future or contingent.
(6)
The gravity of the issue which is the subject of the
application is a factor taken into account in determining the outcome of questions of
standing. The more serious the issue at stake the less significance will
be attached to arguments based on the applicant's alleged lack of standing.
(7)
In deciding what, if any, remedy to grant as a matter of discretion, the Court
will take into account the extent of the applicant's
interest. At this stage
different remedies may require a different involvement by the
applicant."
The above quoted passage from the well-known treaties indicates that the concept of locus standi has been whittled down inasmuch as the expression 'sufficient interest', inter alia, includes civic or (community) environmental and cultural interests.
The rights of life; property and business is guaranteed under the I Constitution, such rights can be enforced through Court of law. SLGO, 2001 and all other laws relating to the Local Governments are enacted for the good governance, effective provision for amenities and transparent decision making. Such public functions and duties conferred on the functionaries of the District Government are to be exercised for the betterment of the Society at large. Under Section 54(g) of SLGO the District Municipal Administration besides other functions enumerated therein, is also required to regulate affixing of signboard and advertisement. Such powers and functions are to be exercised in consonance with the rules making power in terms of Sections 191 and 192 of the Ordinance thereof. Though the learned counsel argued that since no rules or bye-laws framed are under the Ordinance. According to him. even in absence of such bye-laws or rules the Executive functionaries are to discharge their function in accordance with mandate of law. Executive functionaries do not enjoy inherit or arbitrary powers to act at their whims and fancy. Indeed, no rules or bye-laws as mandated under the SLGO, 2001 have been framed. However, by virtue of Section 196 thereof, all rules, regulations, and bye-laws made under the predecessor law so far those are not inconsistent with the provisions of SLGO 2001 shall continue to be mforce until amended or varied by the competent authority. Mr. Salahuddin, learned counsel; however, states that under the Sindh People's Local Government Ordinance, 1972, Karachi Municipal Corporation (Advertisement) bye-laws 1978 were enforced and Defendant No. 2 is acting in accordance therewith. Section 191 of the Ordinance, 2001 do prescribe limitation for framing such rules, which are as follows :--
(a)
consistency
with democratic decentralization and subsidiarity ;
(b)
enhancement of welfare of the people;
(c)
fairness and clarity; and
(d)
natural
justice and due process of law.
Bye-law No. 7 of the Karachi Metropolitan Corporation (Advertisement) Bye-laws, 1978 dated 20,5.1979 provides as follows :
"7. (1) No advertisement or advertising device shall be placed in such manner as may cause a traffic hazard on a public street;
(2) No advertisement which is objectionable on social, ethical or moral grounds or is against public policy shall be displayed."
From the perusal of the above Bye-laws, it is abundantly clear that the advertisement is to be placed in such manner as it may not cause a traffic problem on a public street. Any advertisement that is objectionable on social, ethical or moral grounds or against public policy shall not be allowed to be displayed. Even sites for such advertisement neon-sign etc. are to be earmarked and invitation/offers for such site is to be invited through press. Under bye-laws, the Town Committee could allocate any site without inviting public offer only in case of prior concurrence of Government. In the instant case, there is nothing on record to show that any public offer was invited through press nor there is any material to show that any prior approval of the Government was obtained to allot the subject site without inviting of the public offer. Even at this juncture, for the sake of arguments, it is presumed that all above acts were carried out in accordance with above referred bye-laws then such bye-laws are subject to the limitation as prescribed under Section 191 of the Ordinance, 2001. One of the important requirement is natural justice and due process of law. By natural justice, it postulates invitation of the objections and hearing of all those persons who may be effected by such permission or fixation of the hoarding or neon-sign of the size subject-matter of the instant case. Apparently subject site was allotted without any invitation of offer through press, therefore, hearing of objection admittedly was not given.
Perpetual injunction is regulated under
Section 54 of the Specific Relief Act, such injunction may be granted where it is
shown that the defendant
invades or threatens to invade the plaintiffs "right to enjoyment of property". Right to enjoy property is not
simply a right to possess and occupy the
property. By enjoyment of the property, it also includes the right to free ingress, and egress, right to reap benefit. One of
the most important right which in this
commercial world has acquired a significant importance is right of view or exposure to and from the
particular property. More particularly
when such property is of a commercial nature. People are more attracted towards the shops and establishment when
it is exposed to the general view.
Office premises may be more beneficially enjoyed in a multi-storeyed Buildings when it has an over view of scenaric landscaping of the city environment. Any
invasion or encroachment of such right to enjoy the property was recognized as far back as in the case Campbell v. Mayor, Aldermen, and Councillors
of the Metropolitan Borough of Paddington (1911) 1 King's Bench Division 869. In said case, plaintiff was in
possession of a house in
As far as the objections of learned counsel for the defendants that plaintiff has no right which could be enforced. In my humble opinion, Section 42 of the Specific Relief Act do give a right to institute a suit to any person who has (sic) Any right as to any property. As discussed above, such right read with Right of Enjoyment of a property as postulated under Section 54 of the Specific Relief Act do give such right to a Plaintiff who could establish that the right to view and exposure of his commercial establishment is of some beneficial interest to him. Right to life as has been expounded by the Hon'ble Supreme Court in Shela Zia's case reported in PLD 1994 SC 693 as approved in 'Costal Livina's case' in 1999 SCMR 2882 that Right to Life is not merely a vegetative living. Likewise, right to property or right to carry on business in a property are also recognized under the Constitution, 1973. Such right to property is not be interpreted in a narrow sense but must be given a broader perspective and meaning more particularly in present commercial environment where every bit of a commercial premises or establishment has its due importance and pecuniary benefit. Injunctive relief is also obtainable in case of invasion of civil right in the nature of Tort. A person seeking injunction must make out a case of actual or of threatened violation of its right. Reliance of learned counsel (1) Cawashah Bomanji Parakh v. Prafullah Nath (AIR 1941 Nagpur 364), (2) P.C.E. Paul v. W. Robson (AIR 1914 P.C. 45), (3) Ushaben v. Bhangyalazmi Chitra Mandir (AIR 1978 Gujrat 13), are of no avail. First two referred cases relates to nuisance and right to light under the Easement Act, last mentioned case relates to construction of building in residential area. Right of enjoyment of a property is independent right and if it is shown that the public functionaries acts in a manner as it may encroach upon a private right which may also be invasion of a public right than individual whose rights are encroached may bring an action against such invasion. "In the instant case, the manner in which the hoarding of the magnitude proposed to be installed is certainly to obstruct the view to and from the commercial establishment facing the main road and at the same time it will also be obstructing exposure of the frontage and elevation of their establishment. Defendant No. 3 may claim that they too have a right to carry on business, cannot be deprived of their right. When there is a clash of rights of two individual and private person then the right that first existed and matured would be preferred over the other. In instant case, it is right to enjoyment of property with all its easement, easement of necessity privileges, benefit both pecuniary and otherwise appurtenant thereto as discussed above, will have precedence over rights of Defendant No. 3, the Advertising Company. The subject Advertisement Board, if allowed to be affixed at the present site in the manner proposed, it will certainly effect the peaceful "enjoyment of the property" by the members of the Plaintiffs, therefore, prima facie case and balance of convenience under the circumstances leans in their favour. Under the facts and circumstances, it is directed that the proposed hoarding or the Advertisement Boards may be affixed at such height and in such manner as may not obstruct the view, vision and elevation of the plaintiffs' commercial establishment." It will be further examined at the trial as to whether the award and allocation of such site if at all were made in accordance with bye-laws as are claimed to be in force by the Saddar Town Council, the Defendant No. 2. The Applications in terms of the above, stand disposed of.
(M.Y.) Applications disposed of.